Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia - [2011] NNTTA 80

NATIONAL NATIVE TITLE TRIBUNAL

Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, [2011] NNTTA 80 (9 May 2011)

Application No: WF10/25

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

Magnesium Resources Pty Ltd and Anthony Warren Slater (Applicant/grantee party)

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Angelina Cox and Others on behalf of the Puutu Kunti Kurrama and Pinikura People (WC01/5) (first native title party)

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Angelina Cox and Others on behalf of the Puutu Kunti Kurrama and Pinikura People #2 (WC05/4) (second native title party)

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State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  9 May 2011

Catchwords: Native title – future acts – application for determination for the grant of mining leases and miscellaneous licence – s 39 criteria considered – limited direct and relevant evidence – minimal effect on enjoyment of native title rights and interests – effect on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of acts – public interest in doing of acts – extension of time for native title party to comply with Tribunal directions declined – hearing ‘on the papers’ adequate – oral hearing or hearing ‘on country’ not necessary – determination that the acts may be done subject to conditions

Legislation:Native Title Act 1993 (Cth) ss 23I, 23F, 26, 29, 30, 31, 35, 36, 38, 39, 41(3)-(5), 47, 47A, 47B, 75, 150, 151(2), 190B(4), 190B(6)
Mining Act 1978 (WA) ss 82, 84, 85
Aboriginal Heritage Act 1972 (WA) ss 9, 18
Land Act 1933 (WA) s 114
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 4

Cases:Australian Manganese Pty Ltd v State of Western Australia and Others [2008] NNTTA 38; (2008) 218 FLR 387
Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Erubam Le (Darnley Islanders) (No 1) v Queensland (2003) 134 FCR 155; [2003] FCAFC 227
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, NNTT WF08/32 & WF08/33, [2009] NNTTA 69 (8 July 2009), Daniel O’Dea
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, NNTT WF10/25 [2010] NNTTA 211 (19 December 2010), Hon C J Sumner
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Puutu Kunti Kurrama & Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia, WF10/25, [2011] NNTTA 2 (31 January 2011), John Sosso
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Australia v Thomas [1999] NNTTA 99; (1999) 164 FLR 120
Western Australia v Ward (2002) ; (2002) 191 ALR 1; [2002] HCA 28
Western Desert Lands Aboriginal Corporation v Western Australia and Anor [2009] NNTTA 49; (2009) 232 FLR 169; (2009) 2 ARLR 214

Solicitor for the
grantee party:                 Mr Ken Green, Green Legal
Solicitor for the
native title parties:          Mr Ibrahim Kakay, Yamatji Marlpa Aboriginal Corporation
Representative for the

Government party: Mr Dave Thomson, Department of Mines and Petroleum

Solicitor for the

Government party: Mr Brendyn Nelson, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

Background

The State of Western Australia (Government party) gave the following notices of future acts under s 29 of the Native Title Act1993 (Cth) (the Act/NTA) being the grant of certain mining tenements (the proposed tenements) under the Mining Act1978 (WA).

On 14 January 2009 the grant of mining lease M08/455 to Magnesium Resources Pty Ltd over an area of 57.46 hectares located 112 kilometres southerly of Pannawonica in the Shire of Ashburton.
On 7 October 2009 the grant of miscellaneous licence L08/46 to Magnesium Resources Pty Ltd over an area of 38.33 hectares located 108 kilometres southerly of Pannawonica in the Shire of Ashburton. The stated purposes of miscellaneous licence L08/46 are for ‘Road, Mine Site Accommodation Facility, Workshop and Storage Facility’ (both this tenement and M08/455 are for the purposes of the Mt Edith Rock Quarry). No issue was raised by any party in relation to this proposed tenement on the basis that it is the creation of the right to mine for the sole purpose of the construction of an infrastructure facility associated with mining and hence not covered by the right to negotiate provisions of the Act (s 26(1)(c)(i) NTA). The Tribunal has therefore proceeded to deal with the matter on the basis that the Government party, being the agency responsible for making the grant and being fully informed as to its purpose, asserts that the right to negotiate provisions are applicable to it and this is a position accepted by the other parties. Ultimately, it is a matter for the Government party to decide whether to make the grant.
On 20 May 2009 the grant of mining lease M08/456 to Anthony Warren Slater over an area of 74.24 hectares located 93 kilometres southerly of Pannawonica in the Shire of Ashburton (one of the tenements which forms part of the Duck Creek Sand and Shingle Operation).

The proposed tenements are part of the Onslow Tenement Project which consists of 13 tenements within the following five project areas promoted by Onslow Resources Ltd (Onslow).

the Ashburton River Sand and Shingle Operation;
the Onslow Dune Sand Operation Project Areas, both of which are located approximately 20 kilometres south-west of Onslow;
the Barradale Rock Quarry located approximately 45 kilometres west-southwest of Nanutarra Roadhouse;
the Duck Creek Sand and Shingle Operation (Duck Creek Project) (including, among others, proposed tenement M08/456); and
the Mt Edith Rock Quarry (Mt Edith Project) (comprising M08/455 and L08/46) both said to be located approximately 60 kilometres west of the Nanutarra Roadhouse.

Onslow has made application itself for some of these thirteen tenements but in respect of proposed tenements M08/455, L08/46 and M08/456 (and some other tenements) has agreed to purchase them from the grantee party who applied for the tenements and is accordingly the beneficial owner of them. In these reasons a reference to the grantee party is a reference to Onslow acting on behalf of the grantee parties identified in the s 29 notices or to the grantee party nominated in the s 29 notice as appropriate.
The registered native title claimants and native title parties in these proceedings are:

Angelina Cox and Others on behalf of the Puutu Kunti Kurrama and Pinikura People (WC01/5) (PKKP 1) (first native title party) registered from 29 November 2001 and Angelina Cox and Others on behalf of the Puutu Kunti Kurrama and Pinikura People #2 (WC05/4) (PKKP 2) (second native title party) registered from 15 August 2006 in relation to M08/456 and L08/46; and
Angelina Cox and Others on behalf of the Puutu Kunti Kurrama and Pinikura People #2 (WC05/4) (PKKP 2) registered from 15 August 2006 in relation to M08/455 and L08/46.

The proposed tenements are affected by the registered native title claims to the following extent:

M08/455 – overlapped 100 per cent by the PKKP 2 registered claim.
L08/46 – overlapped 10.9 per cent by the PKKP 1 registered claim; and overlapped 89.1 per cent by the PKKP 2 registered claim.
M08/456 – overlapped 93.7 per cent by the PKKP 1 registered claim; and overlapped 6.3 per cent by the PKKP 2 registered claim.

In these proceedings both native title parties were represented by solicitors (principally Mr Ibrahim Kakay) employed by Yamatji Marlpa Aboriginal Corporation (YMAC) the recognised native title representative body under the Act in relation to the areas of these claims (and its service arm, the Pilbara Native Title Service (PNTS)). Unless the context otherwise requires, a reference in these reasons to the native title party or PKKP includes both registered native title claimants.
On 8 September 2010, being a date more than six months after the s 29 notices were given, the grantee party made an application pursuant to ss 35 and 75 of the Act for a future act determination under s 38. The application is made on the basis that the negotiation parties (Government party, grantee party and native title party) have not reached an agreement of the kind mentioned in s 31(1)(b) of the Act as to the doing of the future act.
The native title party challenged the Tribunal’s power to conduct an inquiry and make a determination on the basis that the grantee party had not negotiated in good faith (ss 31(1)(b), 36(2) NTA). This challenge was rejected and reasons were handed down on 19 December 2010 (Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia, NNTT WF10/25, [2010] NNTTA 211) (good faith decision).
On 22 September 2010, the Tribunal made directions to deal with the good faith challenge and the substantive inquiry. On 26 November 2010, and again on 22 December 2010, the native title party sought an amendment to directions for the substantive inquiry to extend the dates for compliance due to ‘lore business, and ongoing section 150 mediation’. On both occasions the amendment request was opposed by the grantee party and on both occasions the request was refused by the Tribunal member. In the second instance detailed reasons were provided by Deputy President Sosso (Puutu Kunti Kurrama & Pinikura People; Puutu Kunti Kurrama & Pinikura People #2/ Magnesium Resources Pty Ltd; Anthony Warren Slater/Western Australia, WF10/25, [2011] NNTTA 2 (31 January 2011)). The Tribunal reaffirmed its view that under the Act it should resolve future act inquiries in as efficient and timely manner as possible (at [16]-[17], ss 35(1), 36(1), 36(3) NTA); and that there was a public interest in ensuring that matters before the Tribunal are disposed of in an orderly and timely way (at [19]-[24]).
On 20 December 2010, Government party contentions and supporting documents GVP1-12 were lodged with the Tribunal. On the same date, grantee party contentions and supporting documents GP1-60 were lodged with the Tribunal, which included the affidavit of Anthony Warren Slater, a Director of Onslow and Magnesium Resources Pty Ltd, sworn on 20 December 2010. Native title party contentions were lodged on 1 February 2011 and included the statutory declarations of Maudie Dowton, Angie Cox and Pamela Faye McGrath. On 21 February 2010 the Government party lodged replies to the native title party’s submissions of 1 February 2010 which were also relied on by the grantee party.
On 6 April 2011, the native title party provided supplementary submissions, including submissions regarding the request for an on country hearing. Government and grantee party’s replies to these submissions were received on 14 April 2011.
On 22 September 2010, I directed pursuant to s 150 of the Act that conferences be held to attempt to resolve matters relating to the inquiry. A number of conferences were convened by Tribunal Member Dan O’Dea however no agreement of the kind mentioned in s 31(1)(b) of the Act or otherwise could be reached. On 20 April 2011 I advised the parties that I had been informed of this by Mr O’Dea and that the s 150 mediation had been terminated. I further advised that unless a State Deed (i.e. an agreement of the kind mentioned in s 31(1)(b) of the Act executed by all negotiation parties) which would lead to a withdrawal of the s 35 application (s 35(3)) or a Minute of consent determination executed by all parties was lodged with the Tribunal I would proceed to determine the matter ‘on the papers’.
On 20 April 2011, Mr Kakay provided further submissions including copies of State Deeds signed by persons comprising the registered native title claimant and native title party and a Minute of a consent determination signed by him but none of them signed by the other parties. Mr Kakay submitted that an agreement had been reached and that it would no longer be necessary for the Tribunal to make a determination or that a determination should be made on the basis of the agreement.
Despite Mr Kakay’s submissions it is apparent that no agreement has been reached in relation to the proposed tenements, which were part of unsuccessful negotiations for a Project Area Agreement involving all tenements in the Onslow Tenement Project.

Application for hearing ‘on country’

At a listing hearing on 7 February 2011, after contentions and evidence had been lodged by all parties pursuant to the amended directions, Mr Kakay made application for an oral hearing ‘on country’. The hearing was to be at Onslow and at the actual area of the tenements. Mr Kakay said that the native title party had more evidence and wanted the opportunity to produce it. This request was renewed by Mr Kakay at the final listing hearing on 7 April 2011 and was supported by an affidavit from him. In the affidavit he makes the points that the native title party had commissioned an anthropologist to prepare a Connection Report on 31 May 2007 in relation to negotiating a consent determination of native title for both PKKP claims; the anthropologist is scheduled to meet with the claim group on 13 and 14 May 2011 to further review the Connection Report and extract information that may be relevant in the current proceedings; PNTS has scheduled meetings with PKKP on country in the week of 8 May 2011 to seek instructions from them to authorise release of excerpts from the Connection Report to be evidence in these proceedings; that when authorised for release, the native title party intends to file the material as evidence of PKKP’s traditional laws and customs and on-going connection to the area of the proposed mining leases; and it is anticipated that this would be done no later than 16 May 2011. He also provided information about the logistics for an on country hearing involving flying to Karratha and driving to Onslow. Mr Kakay indicated that three witnesses would be called namely Toby Smirke, Annabelle Stewart and Mitchell Drage, the latter being very concerned about the proposed mining as he was born around the area. The anthropologist would also give oral evidence.
Both the Government and grantee parties opposed the application for an oral hearing on country. Mr Ken Green for Onslow submitted that the Connection Report had been finalised for some time and consideration could have been given much earlier for its submission to this inquiry in accordance with the directions. He relied on the directions of the Tribunal made on 22 September 2011 which require witness statements ‘verified where possible by affidavit’ to be provided as part of the native title party’s documentary evidence but which had not been provided. He said further delay would be unfair to the grantee party and that there is nothing in the evidence provided to date that justifies an oral hearing or hearing on country. He said it could only be seen as a misguided tactic to delay a determination. I agree with Mr Green’s submissions.
The Connection Report was provided to the Government in the latter part of 2009 and had been in the course of preparation during that year. Mr Kakay said that YMAC/PNTS have problems with resources as identified in the good faith decision and that they were engaged in other litigation and work on behalf of native title claimants including PKKP which caused problems with the native title party complying with directions.
In my view a hearing on country is not justified. The native title party has had more than adequate time to comply with Tribunal directions and provide its contentions and evidence for the inquiry. The PKKP have known of the proposal to grant the proposed tenements since the giving of the s 29 notices in 2009. Further details of the nature of the Onslow Tenement Project and its various locations were provided by the Government and grantee parties at various stages of the good faith negotiations starting on 29 October 2009 in respect of M08/455 (see good faith decision paras [16]-[35]). The native title party had ample time during the negotiations and the conduct of the proceedings to collate its evidence and produce it to the Tribunal. Mr Kakay made applications for extensions of time which were not approved and was fully aware since the directions were made that compliance with them was expected.
The PKKP Connection Report was in the process of preparation during 2007 and 2008 and finalised in the latter part of 2009. In a situation where Mr Kakay or at least other representatives of PKKP were aware of the existence of the Connection Report’s preparation well before the good faith negotiations began and well before the making of the s 35 application it is unacceptable for Mr Kakay to then seek further time to produce evidence from it. While the Tribunal accepts that the Connection Report might provide some further information about the native title party’s connection to country relevant to this inquiry, it is important to understand that for the purposes of a future act determination application, the Tribunal accepts that the claimed and registered native title rights and interests exist and the Tribunal’s inquiry in respect of s 39(1)(a)(i) of the Act involves the extent to which they are exercised or enjoyed in the particular location. Despite YMAC’s resource difficulties it should have been possible for Mr Kakay to prepare evidence in relation to this issue and provide witness statements specific to the areas of the proposed tenements in the time given to the native title party. I note that the area is not remote but some 200 kilometres from Onslow and serviced by more than adequate roads.
I also observe that the native title party challenged negotiations in good faith on a basis which was unmeritorious and relied on a view of the law which was no longer correct (good faith decision esp. paras [57]-[59]). The native title party’s efforts would have been better employed in dealing with the substantive determination and collecting relevant evidence relating to it if it exists.
The evidence dealt with below indicates that there is really no basis for an on country hearing as the major identified sites of particular significance to the native title party are not near the proposed tenement areas and the evidence relating to native title rights and interests and the enjoyment of them is very limited. I am satisfied that an oral ‘on country’ hearing is not justified and that the matter can be adequately determined ‘on the papers’ (s 151(2) NTA)

Government party’s evidence

Government party documentation establishes the underlying tenure to be Mt Stuart Pastoral Lease 3114/1267, entirely overlapping the proposed tenements.
There are no Aboriginal communities identified within or in the near vicinity of the proposed tenements.
There is no prior history of any mining or exploration activity over the proposed tenements, however the proposed tenements are overlapped by the following active licences:

M08/455 is overlapped by exploration licence E08/1279 (at 100 per cent), held by Magnesium Resources Pty Ltd since 2001;
M08/456 is overlapped by prospecting licence P08/506 (at 100 per cent), held by Anthony Warren Slater since 2006; and

L08/46 is overlapped by exploration licences E08/1279 (at 3.9 per cent), held by Magnesium Resources Pty Ltd since 2001, E08/1166 (0.1 per cent), held by Cullen Exploration Pty Ltd and Intrepid Mines Ltd since 1999, and E08/1617 (at 71 per cent) and prospecting licence P08/507 (at 2.7 per cent), both held by Onslow Resources Pty Ltd since 2006.

Department of Indigenous Affairs (DIA) documentation provided by the Government party reveal there are no sites registered under the Aboriginal Heritage Act1972 (WA) (AHA) overlapping the area of the proposed tenements.
In regards to mining leases M08/455 and M08/456, the Mining Act entitles the grantee party to exercise the rights set out in s 85 of that Act subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84. The grant of a mining lease is for a term of 21 years from notification of grant and a right of renewal for 21 years, while a miscellaneous licence has a term of 21 years and may be renewed for further terms.
The Endorsements (the breach of which does not render the tenement liable to forfeiture) and Conditions to be imposed on the grant of M08/455 are as follows:
‘ENDORSEMENTS
1. The Lessee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. This mining lease authorises the mining of the land for all minerals as defined in Section 8 of the Mining Act 1978 with the exception of:
·Uranium ore;
·Iron, unless specifically authorised under Section 111 of the Act
3. The Lessee’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.
CONDITIONS
1.   Survey.
2.   All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
3.   All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
4.   All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
5.   The Lessee 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 Lessee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of :-
·the grant of the Lease; or
·registration of a transfer introducing a new Lessee;
advise, by registered post the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.   Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited.
Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
8.   The lessee submitting a plan of proposed operations and measures to safeguard the environment to the Director, Environment, DMP for his assessment and written approval prior to commencing any developmental or productive mining or construction activity.’
The Endorsements and Conditions in respect of M08/456 are in substance the same as for M08/455 with the exception that for some reason Endorsement 2 is not included. The grant of the mining lease does not restrict the grantee party as to the minerals which may be mined except as specified in proposed Endorsement 2 of M08/455.
The grant of L08/46 will be subject to the same Endorsements and Conditions directed to minimising disturbance and damage to the land; notification to pastoral or grazing lessees of the grant of the licence and of certain activities; and road safety measures. It also will include a condition in the same terms as Condition 8 proposed for M08/455 and M08/456 requiring the written approval of the Director, Environment, DMP prior to the commencement of any development or productive mining or construction.
The Government party also proposes four ‘Extra Conditions’ on the grant of the proposed tenements:
1. Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
2. If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
3. Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
4. Upon assignment of the mining lease the assignee shall be bound by these conditions.
The circumstances of the imposition of these Extra Conditions has been considered in FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, NNTT WF08/32 & WF08/33, [2009] NNTTA 69 (8 July 2009), Daniel O’Dea (FMG) at [22]-[24] and Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner at [35]-[40]. The Government party’s position is that these extra conditions are offered by it during negotiations and need to be responded to by the other parties. Unlike the standard conditions referred to above they are not automatically imposed. The native title party has requested imposition of these conditions as a bare minimum if the Tribunal determines that the acts may be done. On the basis that the native title party has ‘accepted’ the extra conditions, the Government party says they may be imposed and obviate the need for other conditions proposed by the native title party to be imposed (Government party’s response to the native title parties’ further submissions, filed 6 April 2011 dated 14 April 2011) (see below). The grantee party says that the extra conditions should only be imposed if justified on the evidence, a position which I accept while noting that relevant evidence includes the proposals, opinions and wishes of the native title party (s 39(1)(b) NTA). For the reasons given below I am satisfied that the Government party’s extra conditions should be imposed as conditions of the determination that the acts may be done.
The Government party in response to the native title party’s request for more extensive conditions (see below) notes that one of these was: ‘Notice of Grant 2. The Government party must give to the Native Title Party details of the grant of the Tenement, including conditions and endorsements, within 21 days of the date on which it was granted’. The Government party observed that a condition of this kind had been imposed by the Tribunal in the past and said that it was prepared to undertake to provide details of the grant and thus obviate the need for the requested condition. My determination is made on the basis that the Government party will comply with this undertaking.

Grantee party’s proposed activities

Grantee party evidence, including the affidavit of Anthony Warren Slater, provided the following uncontested evidence about the relevant parts of the Onslow Tenement Project.
Duck Creek Sand and Shingle Operation (Duck Creek Project)

Mining lease M08/456, together with M08/468 and L08/44 (which are not subject to this determination), form the Duck Creek Sand and Shingle Operation. The grantee party proposes to undertake a low impact mining operation over M08/456 and M08/468 in which sand and shingle will be excavated from the Duck Creek riverbed to produce sand and aggregate product lines.
The proposed mining activities for M08/456 and M08/468 include excavation of loose riverbed sand and shingle; screening to separate sand from shingle; stockpiling of sand on the embankment; crushing of shingle to produce aggregates; and stockpiling of aggregates on the embankment.
The total estimated resource for both M08/456 and M08/468 is 2 016 000 cubic metres or 4 536 000 tonnes.
Mining will occur on a campaign basis depending on contract requirements and river flows. As these factors are difficult to predict definitively, the annual rate of mining is anticipated to vary from between 0 cubic metres to 100 000 cubic metres per year with the possibility of large one-off single contacts in excess of 100 000 cubic metres.
The sand and aggregate product lines will be used for construction purposes for industrial and residential developments in the Onslow region.
Mt Edith Rock Quarry (Mt Edith Project)
Mining lease M08/455, together with Miscellaneous licence L08/46, form the Mt Edith Rock Quarry. The grantee party proposes to develop a quarry to mine and process dolomite within M08/455. L08/46 will be used to connect the proposed quarry with the Nanutarra Wittenoom Road.
The dolomite would be mined using conventional drill and blast techniques and processed using a crushing/screening plant.
The quarry would operate on a campaign basis depending on market demand. It is expected that approximately 1 hectare would be mined in the first year with another 2 hectares utilised with stockpiles and processing equipment.
The dolomite would be used to supply Main Roads WA, local Government and other regional developers with basic raw materials for road building and general construction purposes.

Native title party evidence

Native title party contentions included the statutory declaration of Ms Maudie Dowton (MDSD), affirmed on 17 December 2010, made in the following terms:
‘I, Maudie Dowton of Bindi Bindi Village, Onslow, WA 6710, pensioner, sincerely declare as follows:
1.I submit this declaration in support of a section 9 Aboriginal Heritage Act 1972 application by the Puutu Kunti Kurrama and Pinikura (PKKP) native title claim group for traditional custodianship of Duck Creek and Kalkarti Gorge.
2.I am a Kurrama elder. My father was a Kurrama man called Tommy Ashburton and my mother was a Pinikura woman named Topsy Ashburton. My father’s aboriginal name was Jukaan and my mother’s aboriginal name was Markakurru.
3.I was born ‘bush way’ at a waterhole called Walyruk in Katatjirri (Duck Creek), which is on Puutu Kunti Kurrama country. At the time my parents were living around the Duck Creek area working on the stations. Duck Creek runs from the hills near Mt Brockman Station homestead down to near Mt Stuart Station, where Kurrama and Pinikura countries meet.
4.When I was a child, I lived all around our traditional country. My father worked cattle and sheep mustering in the stations. We camped out in bough sheds. People were always travelling around working and visiting each other. When people were not working they stayed at holiday camps in Pinikura and Kurrama countries. I lived at Mt Stuart and Wyloo stations as a young woman and worked on the stations mustering and cooking. I used to go back to Duck Creek to visit family.
5.Sometimes the holiday camps were used for Law meetings and people would travel there from different stations. Women are not allowed to talk about Law business. My father was a Law man. As a young girl I went to Law meetings with my parents and later on I went with my husband. There was Law meetings at Kalkarti on Duck Creek. Everybody from the stations used to meet up there. Our people are still practicing the Law and the boys are still going through the Law.
6.As a young woman I worked on Mt Stuart, Wyloo and Nanutarra stations cooking and riding horses. I was a give-away bride to my nyupa (husband) Jack Dowton. Our parents organized it all. We married ‘straight’ according to our skin group system. This was when I was working on Wyloo Station.
7.We worked together on different stations: Mulga Downs, Wyloo, Hamersley, Duck Creek and Nanutarra, before moving to Onslow when my husband got older.
8.We had three daughters together. My eldest daughter was born bush way.
9.My father was born at Mt Brockman at the top end of Duck Creek, where the Brockman mine now is. He got his name from the closest yinta (permanent waterhole) Jukaari Spring.
10.Our country is full of places that our old people and families used to visit, camp and hunt. When travelling on country we still use these same campsites and visit the pools and hills. We don’t make new campsites, if there is an old one. That’s what the old people did too, went back to the old camp sites.
11.I know all about bush tucker and we still eat bush meat now. I know how to cook and hunt the animals the proper way. I have learned how to use bush medicines and fish and make spears and carry dishes from watching and listening to the old people. Our old people left lots of grinding stones on country too. We take young people on country so that they can learn the right way to do things as well.
12.Being ‘boss’ for country means that you know that country, that your old people are from that country and that you’ve been around there. They can help to make decisions about that country. Young people have to listen to the bosses for the country. In the old days it would have been the sons of the bosses who took over as boss for the country, but old women can be bosses too.
13.Ngurrara means home country and spirit place. It is the place where your family is from or where you were born. Our parents’ ngurrara are important places for us, and so are our ngurrara. My ngurrara is around Duck Creek because that’s where I was born and that’s where my father is from. So people have to come and see me first if they want to go and do anything there in Duck Creek.
14.Katatjirri (Duck Creek) is real Kurrama country, my father’s country, and most of it is in our native title claim. The top of the creek is up near Mt Brockman homestead, and it runs down through the hill country into Mt Stuart station, where Kurrama meet up with Pinikura. It becomes Pinikura country then. There was an old station called Duck Creek as well, and most of this station was on our Kurrama country.
15.My family and I used to camp all along the Duck Creek at the pools there. The names of some of the pools along the Duck Creek between Catho Well and July Springs are Kalkarti Gorge, which is also called Thara, then there is Urantjana pool, then Pantima pool and then there is Kalitna pool. Then you come to Walyruk pool, the place where I was born. Walyruk is a yinta and the warlu there is a very dangerous one. When you go there you have to blow the water and talk to the country, tell them that you belong to this country and then Kuwari, where my brother Kippy was born. Then there is Paawananara pool, Jilpanti pool where Lenny Ashburton was born, then there is Puun pool. Then finally at the top end of Duck Creek there is July Springs, where Angie Cox’s mother, Judy July, was born.
16.Lots of people were born on Katatjirri. My father, Tommy Ashburton was born at Mt Brockman at the top end of Duck Creek, near where the Brockman mine now is. He shares his name with the closest yinta (permanent pool) to Mt Brockman Hill, Jukaari Spring. My father’s father was a Kurrama man called Ngarupungu Willy – he was born on Kurrama country in Duck Creek. Angie Cox’s great grandmother, Kalkarti Dinah, was a Kurrama woman who was born at Kalkarti Gorge in Duck Creek. Lenny Ashburton was born on Duck Creek in Kurrama country at a pool called Jilparnti. Kippy Ashburton was born on Duck Creek in Kurrama country at a pool called Kuwari. When a child is born bush-way the mother gives birth in the bush the old way, same way they always did before women started going to hospital. A person’s birthplace is an important place.
17.Kalkarti is an important place on Duck Creek. Kalkarti is not far from the old Duck Creek station homestead. Kalkarti is also the name of Angie Cox’s great grandmother, who was born at Kalkarti. This was a big campsite for people in the early days; year after year people would come and stay there. It was a stock camp during station days, and I remember when I was a young girl camping here with a big mob of sheep during a bad drought time. My sister’s son, old Butler was born at Kalkarti Gorge too.
18.At the mouth of Kalkarti there is a yinta with a snake, called a warlu. He is not a very dangerous one, that one. But whenever we visit there we are sure to blow the water and speak to the warlu in Kurrama language so he knows this is our ngurrara (country), and then he will leave us alone.
19.We still catch jigura (bony bream) in this yinta after the rains. This fish looks like a cucumber. Winyalpa is a tree that has good fruit for eating. They have small yellow fruit that come out in summertime. There are two of these trees on the side of the hill right next to Kalkarti Gorge. These are the same trees that our families used to use when I was a young girl, when we used to camp at Kalkarti many years ago. Those are still good trees. I, my mother Topsy, Angie Cox’s mother, have all eaten the fruit from these trees. When we come out there these days, we can still go have a look and get those fruits.
20.There is a nulu ground (Law ground) at Kalkarti where women are not allowed to go. Women are still not allowed to go the nulu ground here even though there hasn’t been a Law ceremony here for many years. A nulu is always a dangerous place for women and children – it never stops being dangerous.
21.You have to respect your country and look after it. I sing out whenever I’m out on country, tell that this is my country, that is the proper way. The country is full of the spirits of our old people, and they always know who you are and where you have been.
22.There are places in our traditional country that we were always told we were not allowed to go to. Some of these places are yinta, some are marnta, some are dangerous like thalu places, some of them are places only men can go, like nulu grounds. You can get very sick if you go to these places and you don’t know what you are doing. That’s what our parents always told us, and that’s what we teach our young people today. We don’t want them getting sick because they don’t know what to do. You got to respect country. There are things that you should and shouldn’t do. You shouldn’t go killing anything unless you are going to eat it. You got to keep country clean. And you shouldn’t take any rocks or anything away with you.
23.If anyone wants to do something on Puutu Kunti Kurrama or Pinikura country, they have to come and speak to us first. You have to talk to people who are ngurrara for that country. We are happy for people to go hunting and fishing on country, but they can’t take anything away, like grinding stones or stone knives. You’ve got to leave those things on country.
24.We have stayed on our country. We have always been there. We walked through it when we were kids and we still go everywhere on our country. Our old people come from this country and are buried on this country. Their spirits are still in this country.’

Native title party contentions also included the statutory declaration of Ms Angie Cox (ACSD), affirmed on 17 December 2010, made in the following terms:
‘I, Angie Cox of Bindi Bindi Village, Onslow, WA 6710, pensioner, sincerely declare as follows:
1.I submit this declaration in support of a section 9 Aboriginal Heritage Act 1972 application by the Puutu Kunti Kurrama and Pinikura (PKKP) native title claim group for traditional custodianship of Duck Creek and Kalkarti Gorge.
2.I am a senior Kurrama woman. My father was an Innawonga man called Bill Cox and my mother was a Kurrama woman, Judy July. My father’s aboriginal name was Palgunji.
3.My mother was born bush way at the top end of Duck Creek at Jimpartarnya (July Springs). July Springs is close to a marngkurla (baby) thalu, where women, who want to get pregnant go and sit in the water.
4.My father was born on Hamersley Station.
5.I was born ‘bush way’ on Kooline Station in 1950. I was born under a eucalyptus tree, and that’s how I got my nickname Eucy. My mother was working as a cook there. We stayed there until I was 12, and then moved around working at all stations in our country. That’s when I started helping my mum in the kitchen.
6.I was 15 when I first married Arthur Cox. He was an Innawonga man, born in Rocklea. I have seven children.
7.I can speak Kurrama. I also speak Bunjima and Yindjibarndi. We take the young fellas out on country on surveys and camping. We teach them our language and culture.
8.When I was a child, I lived all around our traditional country. I know this country inside out. I used to work at Wyloo Nanutarra, Kooline and Mt Stuart Stations. I worked around the house and did some fencing and so on.
9.When I was growing up, the bosses would give us holidays and we would be living and camping in the Kurrama country, in places like Jirtilkangku well, Catjuput Pool and Katangarla campsite. We would stay about a week at a time.

10.When I was working in Mt Stuart we used to go every time we could to Kalkarti Gorge and Walyruk fishing – we always go visiting the country. We used to go out with the poor old fella (Beasley and Simon’s father) and we would go there looking at the waterholes at Kalkarti Gorge – to check on them.
11.People were always travelling around working and visiting each other on the Stations and camps. When there was no work, people stayed at holiday camps in Pinikura and Kurrama countries, including on the Duck Creek and Kalkarti Gorge.
12.I learned to hunt, fish, collect bush tucker and bush medicine from my parents and the old people. I followed my grandmother around a lot. I learned to do it proper way, how to cook it the right way. I still go hunting, fishing and get bush medicine and purlku (bush tobacco) any time I can. My mother used bush medicine for me when I was a child and I still use it myself.
13.My grandparents would tell me where people were born and buried, and where they come from. They taught me how to dance in corroborees and told be [sic] stories about mapan (magic) men. I used to sit down with the old people and listen and learn, and now I have been teaching the songs to my children.
14.Kalkarti is part of my land, its on Kurrama country. That one will never get dry – it’s a yinta, and that’s where the spirit water snake – a warlu – is. It’s a bit low at the moment but when the rain comes it will fill up again. Even Walyruk too on Duck Creek, never get dry because its a yinta. A yinta means a warlu will stay there all the time – he’s been there a long, long time. You have to call out in language when you go out on country and you have to blow water from your mouth if you go to a yinta (permanent pool), so that they recognize you as belonging to that country. I was told never go to a waterhole by yourself and be careful that your shadow doesn’t fall on water. Otherwise the warlu might grab your shadow, and that’s it: your feeling is gone.
15.Kalkarti is very important to me because the old people have always been there, and that’s where my great grandmother was born – my mother’s mother’ mother. Her name was Kalkarti Dinah.
16.Kalkarti Gorge used to be a big camp for all the old people. My mother and grandmother stayed at Kalkarti. When my mother was a baby Kalkarti Gorge was a big camping ground – it was a Law camp there. Maudie showed me the star post from the bow shed. Sandra’s Hayes grandmother been camp there too. Under the tree next to the hill near the water, around there is where people used to camp.
17.They had a big camp there, a meeting camp – a Law Camp, my old pop became a man there. People would travel there from different stations at around Christmas time. Women can’t talk about Law business. We still have Law meetings and put boys through Law.
18.And there is an area there at Kalkarti Gorge you don’t go through there because there is men’s gear there. Brother Toby told me that, but women don’t talk about that. That is a very dangerous place.
19.We still go and camp at Kalkarti Gorge, but they don’t have Law meetings there now. We go fishing and hunting and everything. We still have to visit there and other important places, and take our children and grandchildren to show them.
20.You can get all kinds of bush tucker and medicine in the Duck Creek and at Kalkarti Gorge. When we are in Kartatjirri (Duck Creek), and in Kalkarti, we can go fishing and hunting – we get everything there – kurumundu, turkey, kangaroo, bush medicine, wild honey. To get the wild honey you need an axe or tommy-hawk.
21.When we go on country we still use the same campsites and visit the pools and hills, which the old people used and told us about. We go hunting and collect bush tucker and medicine from the same places. I cured my son from pneumonia with bush medicine only.

22.Kartatjirri (Duck Creek) is our country – Puutu Kunti Kurrama. They all with me together with Maudie – Puutu Kunti Kurrama people. A lot of people have been born on Duck Creek. Kippy Ashburton born there at Kuwari. Leon Ashburton was born in that same area too.
23.Kuwari is another important waterhole on Duck Creek. That is where Kippy Ashburton was born and its a yinta too. All those waterholes on Duck Creek are important because that is where all the old people used to travel. They would camp in one pool, and then move onto the next one.
24.Even where my Mum been born at the top end of Duck Creek – in July Springs – no one should go there either. It never goes dry there too, the warlu there too. And that’s where that Mangalu thalu is. I don’t want a road to go through there either... they can go the top way around it.
25.Ngurrara means your home country and spirit place. We have to look after our land. Ngurrara is where your family is from or where you were born. You get the country from your old people. That is why the birth and burial places are important. Our parents’ ngurrara are important places for us, and so are our ngurrara. You have to respect the country. Our old people told us to look after it. Our old people’s spirits and warlu (snake) still live there.
26.When I was growing up, I used to walk with the old people, and I got our history from our old people. We used to be together, looking for wild potato or Kurrumundu (goanna). They’d tell us ‘this is your grandmother’s country, your mother’s country, your grandfathers country’. They’d say ‘you take over now, this is your country, you have to look after it’. And that’s why I want my kids to be with me out on country too so I can show them and teach them, so then they can take over when I get older. My old people are getting old now, like Nanna Maudie and Nanna Lilly, they can’t walk in the country now, so now we, the younger generation, have to take over.
27.We‘re the right people to look after that place – we’re the traditional owners for that country. We have to take care of that place – that is our place – that is our parents’ country.
28.In our culture you have to ask permission from the people whose country you are on, if you want to go fishing and hunting, or collect firewood or camp there. This is the right way of doing things and everyone knows that. The spirits are watching you on country and if you do the wrong thing, you might get hurt.
29.We get everything from the country but we don’t bring it back to town, because the spirit is still there, old people’s spirit is still there. They can watch you, whatever you do in the country. But they glad to see you there. One part [on Kurrama country] we standing up, big willy willy come. We all standing in a cave. And I sing out, don’t worry, we Kurrama nhaawungkarli* [K: Aboriginal people], this is our ngurrara [country]. The wind just come cold after that. They know we was there. Some other people go get the rocks, pick all the rocks. But that spirit, he still watching. Even if I go to my mother’s country, my mother’s spirit still there.
30.We got to keep them (white people) away from there because they gonna get into trouble if they go near there. If they’re doing mining, or drilling, or make a road, its up to them to be careful, because we don’t want anyone to go near that place – the whole of Kalkarti Gorge. There are dangerous places there, and we have to look after that place.
31.We don’t allow any drillers there, not let them build a road there, no mining or drilling at Kalkarti gorge. And anything the whitefellas want to do there, they got to come and see us first, because we’re the right people to look after that place.’

Ms Cox and Ms Dowton depose to be senior Kurrama women and are both named as two of the persons comprising the applicant for native title on behalf of PKKP. Their evidence is uncontested by the Government and grantee parties. These declarations were made in support of an application to the Government under s 9 of the Aboriginal Heritage Act 1972 (AHA). This section enables the Minister to authorise a representative body of persons of Aboriginal descent who have an interest in a place or object to which the AHA applies, to exercise the powers of the Minister in respect of it. The evidence was not prepared with the present inquiry in mind and is not specific to the proposed tenement areas. While this has limited the weight which can be given to it I am satisfied that the evidence has some relevance and can be considered. I am also satisfied that Ms Cox and Ms Dowton have authority to speak on behalf of the native title party for the area of the proposed tenements.
Mr Kakay provided correspondence from the Department of Indigenous Affairs of 23 March 2011 which responded to YMAC’s letter to the Aboriginal Cultural Material Committee of 20 December 2010 by which the application under s 9 of the AHA was made. This letter points out that the s 9 application relates to Duck Creek and Kalkarti Gorge but that neither of these sites are registered and that this process must be completed before the s 9 application can be considered.
Native title party contentions also included the statutory declaration of Ms Pamela Faye McGrath (PMSD), an anthropologist employed by PNTS and author of the PKKP Connection Report which was also made for the purpose of the s 9 AHA application. The details of this statutory declaration, which I have also had regard to, are as follows.
‘I PAMELA FAYE MCGRATH of 18 Morphett St, Dickson, ACT 2602, sincerely declare as follows:-
1.I submit this declaration in support of a section 9 Aboriginal Heritage Act 1972 application by the Puutu Kunti Kurrama and Pinikura (PKKP) native title claim group for traditional custodianship of Duck Creek and Kalkarti Gorge.
2.I am a qualified anthropologist (B.Arts, Anthropology and Development Studies, ANU 1992; Masters Preliminary, Anthropology, La Trobe University, 2004; PhD, ANU (Interdisciplinary Cross-cultural Research, 2006-ongoing). I have ten years experience working as a native title anthropologist, and I have completed a number of research reports for native title claims in the Pilbara region of Western Australia and in Victoria. I currently work as a consultant native title anthropologist.
3.I have been involved in anthropological and historical research for the Puutu Kunti Kurrama and Pinikura people’s native title claim since late 2000. While employed as an anthropologist with Pilbara Native Title Service (2000-2002), I conducted research for the initial PKKP claim documentation and registration test for the National Native Title Tribunal, and conducted several heritage surveys in the PKKP claim area. In 2007, I was contracted to author the PKKP Connection Report, which was finalised and submitted to the Western Australian Office of Native Title (‘ONT’) in 2009. Field research for the PKKP connection report involved over six weeks fieldwork with Kurrama and Pinikura people, and several different site visits to country. This research also involved considerable historical research during which I reviewed and assessed scores of ethno-historical documents from primary and secondary sources relating to the history of the Pinikura and Kurrama people.
4.The Puutu Kunti Kurrama people and the Pinikura people are two different Aboriginal language groups who share close family ties and cultural practices, and who have chosen to come together to jointly manage their country for the purposes of native title.
5.My knowledge about Kalkarti Gorge and Duck Creek is informed by several on-site interviews with senior Pinikura and Kurrama people over a period of ten years. Since I began working with the Pinikura and Puutu Kunti Kurrama people in 2000, I have visited Kalkarti gorge on at least five separate occasions and have explored different parts of Duck Creek during these visits. Three senior Pinikura and Kurrama people who provided information about both Duck Creek and Kalkarti during these visits have now passed away. These individuals were Chloe Hayes, Maggie Drage, and Claude Butler. Other knowledgeable elders, most notably Maudie Dowton and Angie Cox, remain living in Onslow, which is the nearest town to their traditional country.
Duck Creek
6.Duck Creek, known as ‘Kartatjirri’ by Pinikura and Kurrama people, is a large ephemeral water course that runs from the ‘top’ Puutu Kunti Kurrama country in the northeast of the PKKP claim, to its junction with the Ashburton River near Boolaloo in Pinikura country in the southwest of the claim.
7.The cultural importance of Duck Creek to both Pinikura and Kurrama people is in part informed by the fact that it is home to many known and named sites associated with both the sacred geography (mythological landscape) of Pinikura and Kurrama people, and events of people’s recent history living in the area. The river is considered central to Puutu Kunti Kurrama people’s identity as traditional owners, so much so that they are referred to by other Aboriginal people throughout the Pilbara as ‘the Duck Creek mob’, or ‘the Duck Creek Kurrama’.
8.The creek is a named Aboriginal place along which at least twelve (12) other named Aboriginal sites are located. These sites include a jarutu (kookaburra thalu, or ‘increase’ ceremonial site); a number of permanent pools which are home to warlu (mythological water snakes), for example Walyruk pool (where Maudie Dowton was born ‘bush way’ circa late 1920s, early 1930s) and Kuwari pool, where her brother Kippy was born sometime in the 1930s or 1940s; and a mangkurla (‘baby’ or fertility) thalu called Jimpartarnya July Springs, where Angie Cox’s mother was born in the mid-1930s.
9.Along the length of its watercourse are many permanent pools, and Duck Creek therefore provides many places for fishing (mainly jiwura ‘bony brim’), hunting (for example, kurrumantu goanna), collection of plant resources for food, medicinal purposes and firewood, and short and long-term occupation. Importantly, its permanent pools are a reliable source of water. It is in this sense a ‘rich’ place in both cultural and material terms.
10.A number of other important sites, including permanent pools with warlu, birth and burial sites, a massacre site (‘Battle Hill’), a rock art site (also at ‘Battle Hill’), and many camping and historical sites, are located along a tributary of Duck Creek known as House Creek. This creek runs past the Mt Stuart homestead site before joining Duck Creek. It is documented that known individuals from Pinikura and Kurrama families have camped in and around the Mt Stuart station homestead since the mid-1920s, and continued to do so until the 1970s.
11.Kurrama and Pinikura people have a long history of occupation of the Duck Creek area that has been in part enabled through residence and employment on pastoral stations through which Duck Creek runs. These stations have had various names since the area was opened up to pastoralism in the 1890s, but today the majority of the area through which Duck Creek runs is part of the leasehold of Mt Stuart and Wyloo stations. A number of PKKP people were born and raised in the area and spent significant amounts of time camping, hunting and foraging in the area of Duck Creek.
12.Many Kurrama and Pinikura families have direct experience of living along Duck Creek and hold knowledge of its important places and sites. This knowledge has been passed down through at least four generations of Kurrama and Pinikura families, who themselves have also lived, worked and regularly visited the area. Many individuals from Pinikura and Kurrama families lived and worked on these stations up until the 1980s.
13.Recorded known births along Duck Creek date back to circa 1895 when Kurrama woman Dinah Kalkarti (Angie Cox’s great-grandmother) was born at Kalkarti gorge. Almost a century later, Dinah’s great-grandson Beasley James was born at a mustering camp near Timbuck Creek, a tributary of Duck Creek on Mount Stuart Station in 1969. And Pinikura woman Annabell Stewart was born at the old Duck Creek station homestead very close to the Duck Creek watercourse in 1967. Many other Pinikura and Kurrama people were born on or near the creek in the years in between.
14.Kurrama apical ancestors, Tommy Ashburton (a Kurrama man) and Topsy Ashburton (a Pinikura woman) lived and worked around the Duck Creek area for most of their married lives, from circa 1920 until Tommy’s death sometime in the 1950s. Three of their 10 children were born on the banks of Duck Creek including Mudie Dowton, Kippy Ashburton and Leo Ashburton. Most of Topsy’s 12 children (three of whom were from her first marriage to a Pinikura man) grew up living around Duck Creek. Many of their children including Maudi Dowton, Kippy Ashburton, Chloe Hayes, Joe Ashburton and Leo Ashburton later lived and worked in the area during their adult lives, and also raised their children in the area. Individuals such as Toby Smirke (a Jurruru man whose mother was a Puutu Kunti Kurrama woman and sister to Tommy Ashburton) and Pinikura man Darryl Hughes (son of Topsy Ashburton and Punch Hughes) spent many years mustering cattle along the Duck Creek.
15.Throughout the many years conducting anthropological and historical research with traditional owner groups in the Pilbara region of Western Australia, I have never heard or witnessed any challenge to the assertion of Puutu Kunti Kurrama people that they are the traditional owners of the Duck Creek area to at least Kalkarti gorge. Their authority to speak for this area of country is acknowledged by all surrounding traditional owner groups. Puutu Kunti Kurrama people consider that it is both a right and a responsibility of their ancestral connection to Duck Creek to ensure its health and protection of the area of the river to which they belong.
16.Similarly, I have never heard or witnessed any challenge to the traditional rights and interests of Pinikura people in the area of Duck Creek from its junction with the Ashburton River upstream to Mt Stuart station. These rights and interests of traditional ownership also likely extend further upstream to Kalkarti gorge. Throughout the west Pilbara region Pinikura people are understood to have the authority to speak for this area of country. As with their Kurrama neighbours, Pinikura people consider that they have both rights and responsibilities to care for the section of Duck Creek to which they belong.
Kalkarti Gorge
17.Kalkarti is located on Kartatjirri Duck Creek, in a section of the river as it runs out of the hills of the Hamersley tableland and into the low-lying country of the Ashburton Plains (located approximately AGD66 (50K) northing 0429557, easting 7512813). Kalkarti gorge is also known as Thaa, or by its English name, Catho Gorge.
18.Kalkarti is a gorge and yinta (permanent pool). It is located at (or near) where the country of the Puutu Kunti Kurrama people and the Pinikura people meet, and is therefore is of considerable importance to both groups, and members of both groups are considered to have a range of traditional rights and interests in the area. To date it has been unclear as to whether Kalkarti Gorge is a solely a Puutu Kunti Kurrama place, or whether it is a ‘meeting’ place (on the boundary) between Puutu Kunti Kurrama and Pinikura country. Regardless members of both groups have traditional rights and interests in the area by virtue of both descent from ancestors who are known to have occupied the area, and by virtue of contemporary historical events such as births and occupation.
19.Kalkarti gorge is one of the most important locations on Duck Creek for the Puutu Kunti Kurrama and Pinikura people. Not only is it a site of mythological and ceremonial importance, it is also a site of occupation of known Kurrama and Pinikura ancestors dating back to at least circa 1895. The number and diversity of different sites in the immediate location is such that it Kalkarti can reasonably be described in terms of a ‘complex’ of sites. I discuss the significance of each site type below. None of these sites exist in isolation from each other, however. The fact that there is a Law ground in the vicinity, for example, means that it was also a site of medium-term occupation, hunting, foraging etcetera, and sometimes birth and death, for Aboriginal families who participated in such ceremonies. These sites represent different aspects of the totality of Aboriginal people’s social, economic and cultural practices and experiences (both pre- and post-contact), as they were lived while residing in and around Kalkarti.
20.On every occasion I have visited Kalkarti gorge with PKKP people, I have witnessed senior Kurrama people spontaneously ‘greet’ the warlu (mythological water snake) that is believed to inhabit the permanent pool at Kalkarti. This important ritual, conducted in the Kurrama language, is intended to alert the warlu to the presence of visitors who are themselves from this country and who therefore are not strangers. The greeting is performed by ‘singing out’ (calling out) in a loud voice to the warlu, in between taking handfuls of water from the pool to the mouth, and then ‘blowing’ it back out into the pool. Greetings to country are properly only performed by the people who ‘belong’ to the country, that is, traditional owners. The ability to effectively communicate with the spiritual forces of a particular place in this way is considered to be the exclusive domain of traditional owners. Every greeting to country, therefore, is an assertion and affirmation of traditional ownership and associated rights and interests in an area.
Kalkarti Nulu ground (Law ceremonial site)
21.There is nulu (Law) ground located at Kalkarti, to the immediate north of the permanent pool and gorge. I have been told this by at least four different senior Aboriginal men from the west Pilbara region. This nulu ground is a site where men’s initiation is conducted, and is prohibited to women. On every occasion I have visited Kalkarti, myself and other women have remained on the southern side of the gorge and pool, and have not been permitted to venture further upstream. The precautions Pinikura and Kurrama people have taken in my presence to ensure that no one mistakenly (or otherwise) ventures into the area of the nulu ground have been stridently and consistently implemented, and there is little doubt in my mind that there is a Law ground in the immediate vicinity.
22.As far as I have been told, this Law ground was last used for men’s initiation ceremonies sometime in the 1930s, and it is believed that Kurrama man Tommy Ashburton participated in Law here. The fact that the Law ground has not been used for such a long time does not diminish the significance or spiritual power of the nulu ground. Like all other nulu grounds, it remains a site of immense importance, and is potentially a very dangerous place for uninitiated men, women and children.
Kalkarti Birth and Burial Events
23.In pre-contact time, Aboriginal families would have regularly came together at places such as Kalkarti Gorge for the performance of ritual and Law, often for long periods (Law ceremonies and associated family camps can often last for up to three months).
24.As previously stated, oral history of PKKP people recalls that Angie Cox’ maternal great-grandmother, Dinah Kalkarti, was born at the gorge circa 1895 and takes her name from the site. Pinikura man Claude Butler was born at Kalkarti ‘bush-way’ (i.e. his mother gave birth traditionally with the assistance of an urrurru, traditional midwife) sometime in the mid to late 1930s, indicating that his Pinikura mother Molly and her husband Jack Butler were resident in the area at the time. They were camped at Kalkarti during a ‘holiday’ period from work on a nearby station. Both Claude, and his mother’s sister, Maudie Dowton (who is older than Claude) have confirmed the fact of his birth here.
25.There is also a known burial site in the area dating back to the early part of the 20^th Century.
Kalkarti Occupation and camping
26.For as long as people can remember, Kalkarti has been a camping place for Puutu Kunti Kurrama and Pinikura people. During the period in which people lived on pastoral station prior to a shift to permanent residence nearby towns such as Onslow (a trend that began in the late 1940s but continued until the 1980s), families employed by stations located on Pinikura and Kurrama country (such as Mt Stuart, Wyloo and Duck Creek stations) spent periods of ‘pinkeye’ or ‘holiday time’ (periods when their labour was not required by the station) camped at Kalkarti. The gorge was a stock camp at one time, and Maudie Dowton recalls camping here with sheep during a time of bad drought in the 1930s.
27.During the several heritage surveys and field visits I have conducted in the area of Kalkarti (the first of which was in 2002), I have sighted considerable archaeological material in the immediate area of the permanent pool and the ‘flats’ (areas of high ground) of the nearby banks where people camped while visiting in the gorge. This material has included many deposits of stone flakes, cores and blades, as well as more contemporary material such as old tin cans and pieces of wire. A number of scar trees are also located in the vicinity of the site complex. There is little doubt that the gorge has been a long history as a site of Aboriginal occupation, and that this occupation continued throughout the 20^th century despite the presence of pastoral leases in the area.
28.Middle-aged members of Pinikura and Kurrama families who grew up at stations such as Mt Stuart and Wyloo recall spending time camping and fishing at Kalkarti gorge. For example, Mitchell and Burchell Drage (great-grandsons of Topsy Ashburton) lived at Mt Stuart station homestead in the 1950s and 1960s and recall regular visits to Kalkarti. Similarly, Sandra Hayes, the daughter of Chloe Hayes, recalls spending time there in the 1960s. Many other PKKP claimants have similar memories of visits to Kalkarti as children and then adults.
Kalkarti Fishing and Foraging
29.Kalkarti is a renowned fishing site that is still used by Pinikura and Kurrama people today. Every time I have visited Kalkarti since 2002 with Kurrama and Pinikura people, members of our party have taken the opportunity to fish while there, but only after having properly ‘greeted’ the warlu in the permanent pool. Maudie Dowton recalls Aboriginal people fishing for jigurra (bony brim) in Kalkarti Gorge using drag nets, circa 1940, while she was camped there with her family as a young girl.
30.There are a number of useful plants growing in the vicinity of Kalkarti which have been used at times of occupation by Aboriginal families. For example, there are two winyarpa (fig) trees on a small hill that forms the embankment on the southern end of the permanent pool. These two trees have been on this hill for as long as Maudie Dowton can recall; she and her family used to harvest the fruit from them when they camped here when Maudie was a child.
Contemporary Use and Care
31.Over the years since I first visited Kalkarti gorge, the strength of Puutu Kunti Kurrama and Pinikura people’s attachment to Kalkarti gorge has been constantly reinforced. That Pinikura and Kurrama people believe they have responsibilities to protect Kalkarti, and the associated right to speak for the area and exploit its resources is clear. I believe that a perceived failure to ensure that Kalkarti gorge, and in particular the Law ground is protected from interference would cause profound spiritual hurt to Kurrama and Pinikura people.
32.Today, members of Kurrama and Pinikura people, in particular individuals such as Maudie Dowton and her daughter Elizabeth, Angie Cox, Toby Smirke and his Kurrama wife Sandra, and Margie Hughes still visit and use Kalkarti gorge and much knowledge about the historical and mythological importance of the site complex is retained. People’s visits are sometimes opportunistic, that is, they are made while in the area for other business, for example a nearby heritage survey or while travelling through Mt Stuart station. At other times, people make planned visits in order to ‘check up’ on it, that is, to make sure that it has not been disturbed. Whenever I have planned a fieldtrip to the area of Mt Stuart station, I have been instructed by PKKP claimants to include Kalkarti gorge on the itinerary.
33.When visiting Kalkarti with PKKP claimants, I have witnessed individuals of all ages fishing, gathering seasonal plants, and spending recreational time by the permanent pool. To the best of my knowledge, people have not camped here for some years but prefer to just visit during the day. I have also witnessed a senior woman harvesting tree seedlings growing in the soft river sand to take home for her garden in Onslow. She was doing so on the basis that she was entitled to do so because these were trees from her country.
34.People’s experiences of Kalkarti have been intergenerational, that is, the youngest Pinikura and Kurrama people have spent time there with the oldest generation Pinikura and Kurrama people, and while there have themselves learned about the place its history, and (importantly) where they can and cannot walk in the area in order to avoid the Law ground.
35.The majority of older Puutu Kunti Kurrama and Pinikura people with knowledge of the Duck Creek and Kalkarti gorge area continue to live in towns located close to their traditional country, that is, the towns of Onslow (to the west of Pinikura country) and Paraburdoo and Tom Price (to the east of Kurrama country). Their residence in these towns facilitates opportunities to visit and use areas of Duck Creek, in particular Kalkarti Gorge.
36.There is no doubt in my mind that the Puutu Kunti Kurrama and Pinikura people are considered by Aboriginal people throughout the west Pilbara region to be the traditional owners of the Duck Creek area, and in particular Kalkarti gorge, and that they are therefore responsible for its protection. Senior Kurrama elders from other Kurrama groups–most notably Peter Stevens (now deceased) and Nelson Hughes from the Eastern Gurama native title claim to the northeast of the PKKP claim–have confirmed in evidence for their own native title claims that Duck Creek, and Kalkarti gorge, is the country of Puutu Kunti Kurrama people to Kalkarti gorge, and Pinikura people downstream from Kalkarti gorge. Further, it is widely acknowledged that it is the descendants of Kurrama man Tommy Ashburton and his siblings, and Tommy’s Pinikura wife, Topsy Ashburton, who are the ‘right’ people to speak for this area.
37.Because Kalkarti Gorge contains so many different types of Aboriginal sites– mythological, ceremonial, occupation, archaeological, resource and historical– I believe it is of considerable significance to the Western Australian community more broadly. Rarely, in my experience, is such a density of sites to be found in a single location and in such pristine condition. Because Kalkarti is located away from a main road on a cattle station and appears to be rarely visited by others, it shows no signs of over-use and there has been very little disturbance of archaeological material. Together, the many different aspects of this unique site illustrate, as few other sites do, how Aboriginal people from the Pilbara region adapted their lives to the circumstances of European occupation in ways that enabled them to continue living very traditional lives on their own country despite the presence of pastoral stations and the emergence of nearby towns. By exploiting opportunities provided through residence and work on pastoral stations, people continued to have access to and use of a place of traditional significance. While there, they practiced Law, passed on knowledge of mythological sites, used plant and animal resources, gave birth to their children, buried their dead, and generally ‘looked after’ country. In my opinion there is little doubt the occupation, use, care and knowledge of all aspects of this site has continued by Puutu Kunti Kurrama and Pinikura people through to the present day.
38.As far as I am aware, there has never been an thorough archaeological survey of the Kalkarti gorge area, but I would suggest that such a survey would recognise extensive archaeological deposits in the immediate area that may be of considerable use to better understanding the pre-history of a region that is undoubtedly under-researched in comparison to other areas of the state.
39.The importance of Kalkarti gorge was once again made clear to me when, at a recent PKKP community meeting in Onslow in July 2010, those present named Kalkarti gorge as one of the two most important sites in the PKKP claim area (from among at least 100 other named sites), and stated that it was a site that must be protected from disturbance from exploration and mining activities at all costs.’

Duck Creek is approximately 150 kilometres long from its origins in the Hamersley Range (near Mt Brockman) in the east and flows in a westerly direction to where it runs into the Ashburton River. The Duck Creek Project is 20 kilometres east of the Ashburton River and Kalkarti Gorge a further 20 kilometres east from there. Mt Brockman, reference to which is made in the native title party’s evidence, is a further 90 kilometres from Kalkarti Gorge to the east. The Mt Edith Rock Quarry itself (i.e. M08/455) is 15 kilometres from Duck Creek at its closest point and 5 kilometres east of Ashburton River. Duck Creek is an ephemeral waterway which contains some permanent pools identified in the evidence at Kalkarti Gorge and further to the east of it. The Duck Creek Project is located partly on Duck Creek at a place where there is no permanent water source and the mining will take place on a dry creek bed when that is possible.
In relation to the proposed tenement areas and the respective PKKP registered claims, the evidence establishes that most of the area of mining lease M08/456 for the Duck Creek Project is covered by the PKKP 1 claim but a small part which covers Duck Creek itself and from where the minerals will be extracted is covered by the PKKP 2 claim (6.3 per cent). The Mt Edith Project (including the road) is some 10 kilometres south of Duck Creek at their closest point where L08/46 intersects the Nanutarra to Wittenoom Road and is covered at this point to a small extent by the PKKP 1 claim (10.9 per cent). The balance of L08/46 (which will include the access road to M08//455) and M08/455 itself is within the PKKP 2 claim area. The area of M08/455 is some 15 kilometres south of Duck Creek and M08/456.

Legal principles

I rely on the principles enunciated in the following Tribunal future act determinations:

Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (Koara 1);
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (Evans). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (Koara 2) - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen); and
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (WMC/Evans).

Section 38 of the Act sets out the types of determination that can be made, being a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party (s 38(2)).
Section 39 lists the criteria for making such a determination:

‘39 Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e)     any public interest in the doing of the act;
(f)     any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and
(b)    existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

The Tribunal’s duty in making a determination requires the exercise of a discretion which involves a weighing of the various effects, interests and other relevant factors referred to in the s 39 criteria in accordance with the circumstances before it (Waljen at 165-166).

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

First native title party’s registered native title rights and interests (PKKP 1 – WC01/5))

The following rights and interests have been registered in respect of the first native title party’s claimant application:
‘The native title rights and interests claimed are the rights to possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with any other [sic] who establish [sic] that they are native title holders) of the area, an in particular comprise:
(a) rights and interests to possess, occupy, use and enjoy the area;
(b)the right to make decisions about the use and enjoyment of the area;
(c)the right of access to the area;
(d)the right to control the access of others to the area;
(e)the right to use and enjoy resources of the area;
(f)the right to control the use and enjoyment of others of resources of the area;
(g)the right to trade in resources of the area;
(h)the right to maintain and protect places of importance under traditional laws, customs and practices in the area’
These rights registered are claimed ‘as against the whole world’. Therefore it is a claim to exclusive possession.
However, it must be read down to be a claim made on a non-exclusive basis in some circumstances because, as is noted on the Register, the claimed rights are ‘subject to’ the following statements (among others):
‘(iii) The applicants do not make claim to native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession acts [which includes a non-exclusive pastoral lease], as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in section 231 [sic, read as s 23I] in relation to the act;
(iv) Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing.’
The Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) makes ‘provision as mentioned in section 23I’ in relation to previous non-exclusive possession acts attributable to the State of Western Australia. Therefore, there is no claim to exclusive possession in relation to any area included in the first native title party’s application that is subject to a previous non-exclusive possession act unless that area is also subject to ss 47, 47A or 47B of the Act.
The proposed tenement areas are subject to pastoral lease 3114/1267 (Mt Stuart). I am aware that the parcel identifier ‘3114’ indicates that this is a lease issued under s 114 of the Land Act 1933 (WA). Therefore, according to the High Court in Western Australia v Ward (2002) ; (2002) 191 ALR 1; [2002] HCA 28 at [187] to [190], it is a non-exclusive pastoral lease. It seems, therefore, that pursuant to s 4 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and s 23F of the Act, it is a ‘non-exclusive possession act’ attributable to the State of Western Australia. I am not aware of any challenge having been made to its validity. There is no assertion in this case that either s 47 or s 47A applies to the Mt Stuart Pastoral Lease and s 47B cannot, on its terms, apply.
That being the case, the first native title party’s registered rights in relation to the tenement areas are non-exclusive rights to:
‘(a)    possess, occupy, use and enjoy the area;
(b)make decisions about the use and enjoyment of the area;
(c)     of access to the area;
(d)    control the access of others to the area;
(e)     use and enjoy resources of the area;
(f)     control the use and enjoyment of others of resources of the area;
(g)     trade in resources of the area;
(i)maintain and protect places of importance under traditional laws, customs and practices in the area’
However, I also note that the delegate recognised that a claim to hold rights (d), (f) and (g) was only capable of being established prima facie in relation to areas subject to s 47, s 47A, or s 47B or where there had been no prior extinguishment. I would add to that list areas where the non-extinguishment principle applies. The rights described in (d), (f) and (g) were accepted for registration on the basis that the statements noted in [46] applied (see the delegate’s decision at p 28, available on the Tribunal’s website at Applications-And-Determinations/Registration-Test/Pages/search.aspx).

Second native title party’s registered native title rights and interests (PKKP 2 – WC05/4)

The registered rights and interests for the second native title party are divided into three types: those that apply to ‘Area A’ (Area A rights); those that apply to Area B (Area B rights) and those applying to areas that are neither Area A not Area B, designated ‘Area C rights’. Area C rights are claimed in relation to land and waters ‘within the Application’ that are not:
‘(i)areas of unallocated Crown land (including islands) that have not been previously subject to any grant by the Crown;
(ii)areas to which s.47 of the Act applies;
(iii)areas to which s.47A of the Act applies;
(iv)areas to which s.47B of the Act applies; and
(v)other areas to which the non-extinguishment principle, set out in s.238 of the Act, applies and in relation to which there has not been any prior extinguishment of native title.
...
[or]land and waters which are a "nature reserve" or “wildlife sanctuary” as those terms are defined in the Wildlife Conservation Act 1950 (WA) created before 31 October 1975.’
The registered rights and interests of the second native title party’s claim, relevant to the proposed tenements are ‘Area C rights’ and are as follows:
‘1)     Not established;
2)     A right to occupy the area;
3)     A right to use the area (other than the right to hunt, gather or take fauna);
4)     A right to enjoy the area (other than the right to hunt, gather or take fauna);
5)     A right to be present on or within the area;
6)     Not established;
7)     Not established;
8)     Not applicable;
10)A right to invite and permit others to have access to and participate in or carry out activities in the area;
11)    A right of access to the area;
12)    A right to live within the area;
13)    A right to erect shelters upon or within the area;
14)    A right to camp upon or within the area;
15)    A right to move about the area;
16)    A right to engage in cultural activities within the area;
17)    A right to conduct and participate in ceremonies and meetings within the area;
20)A right to visit, care for and maintain places of importance and protect them from physical harm;
21)A right to take traditional resources, other than minerals, gas and petroleum from the area (other than the right to hunt, gather or take fauna);
22)    Not established;
23)    Not established;
24)    Not established;
25)    Not established;
26)    Not established;
27)    Not established;
28)    Not established;
29)    A right to take ochre;
30)    A right to take water;
31)    A right to manufacture traditional items from the resources of the area;
32)    Not established;
34)A right to maintain, conserve and protect significant places and objects located within the area;
35)    Not established;
36)    Not applicable.’
‘Not applicable’ means the Native Title Registrar’s delegate found the claimed right was not ‘readily identifiable’ and so did not meet the condition found in s 190B(4). ‘Not established’ means the delegate did not consider that the right claimed could, prima facie, be established, as required under s 190B(6), one of the conditions of the registration test. The note to s 190B(6), which forms part of the statute according to the Full Court in Erubam Le (Darnley Islanders) (No 1) v Queensland (2003) 134 FCR 155; [2003] FCAFC 227 at [77], states that:
‘Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).’
For the purposes of the right to negotiate provisions of the Act, claimed and registered native title rights and interests are treated as being on the same footing as determined and registered native title rights and interests. Claimed and registered native title rights are assumed to exist as if they had been recognised as existing in a determination of native title. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (see Waljen at 166-167 and WMC/Evans at 339-341). In other words a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole of the native title party’s claim area just by virtue of their registration.
The native title party’s contentions state that the grant of the mining leases will result in PKKP losing their registered right to ‘exclusive possession’ (NTPSC, para [55]) of the proposed tenement areas.
It is apparent from the above that the only registered rights claimed in relation to the tenement areas and the only rights relevant to this determination are those of a ‘non-exclusive’ nature. [as outlined in [50] and [53]] That being the case, it cannot be said that PKKP would lose “their registered right to ‘exclusive possession’” because they do not claim that right over the tenement areas and so that right is not registered in respect of either of the PKKP claims in relation to those areas.
The native title party’s contentions are based only on the registered rights and interests of the first native title party (PKKP 1) which are applicable to the most of the Duck Creek Project but do not cover the greater part of the Mt Edith Project. There is no reliance on, or specific reference to, the registered rights and interests of the second native title party (PKKP 2), which would be applicable to the large majority of the Mt Edith Project area. Despite this omission the Tribunal can still have regard to the PKKP 2 registered rights and interests which are before it in evidence even though there are differences between them and those registered for PKKP 1. I observe that while not of great importance in this matter because of the paucity of evidence of the enjoyment of any native title rights and interests which could be affected by the grant of the tenements, the Tribunal is entitled to expect that the native title party’s solicitor would correctly identify the registered native title rights and interests applicable to the appropriate areas and provide relevant evidence relating to them if it exists.
There is no evidence of the actual exercise or enjoyment of native title rights and interests that relates directly to the Mt Edith Project area and very limited evidence of the actual exercise or enjoyment of native title rights and interests over the proposed Duck Creek Project area. The statutory declaration evidence of Ms Cox, Ms Dowton and Ms McGrath primarily centres on Kalkarti Gorge, which is located along Duck Creek but to the east of M08/456 and the Duck Creek Project. At best the evidence relates to Duck Creek even if concentrated some kilometres east of the Project area. The evidence does not in any material way relate to the Mt Edith Project area.
With respect to the Mt Edith Project area (both the mining lease and proposed road) there is no evidence of how the registered native title rights and interests in either of the PKKP claims are exercised or enjoyed. The evidence establishes that PKKP People have had historically and still have an association with both Project areas which may be relevant for the purposes of establishing a native title claim or to the s 9 application under the Aboriginal Heritage Act. However, there is simply no specific evidence of how the registered rights and interests are enjoyed currently over the Mt Edith Project area.
With respect to the Duck Creek Project the evidence is very general. Ms Cox deposes to taking young people out on country on surveys and camping and to teach them language and culture (ACSD, para 7). She and others still go hunting, fishing and to get bush medicine (ACSD, para 12) but apart from visiting Kalkarti Gorge there is no specific evidence of where these activities take place. Ms Cox states that ‘we still go and camp at Kalkarti Gorge’ and ‘when we are in Kartatjirri (Duck Creek), and in Kalkarti, we can go fishing and hunting’ (ACSD, paras 19-20). In para 20 Ms Cox talks of getting ‘bush tucker and medicine in the Duck Creek and at Kalkarti Gorge’. They go fishing and hunting in Kartatjirri (Duck Creek) and in Kalkarti where they obtain kurumundu, turkey, kangaroo, bush medicine and wild honey. They use the same campsites and visit the same pools and hills as their old people (para 21). Ms Dowton (MDSC, para 15) says that she and her family ‘used to camp’ all along Duck Creek at pools there. She then lists a number of pools and places which are to the east of the proposed Duck Creek Project. Ms Dowton states that ‘we still catch jigura (bony bream)’ and ‘used to camp’ at Kalkarti Gorge (MDSC, para 19). She says that she and other PKKP people ‘still go everywhere on our country’ (MDSC, para 24).

In my view none of this activity is likely to be affected by the operations at Duck Creek except possibly to a minimal extent. There is only evidence of a very general nature about the enjoyment of native title rights and interests over the Duck Creek Project area. This general evidence can be contrasted with the more specific enjoyment of native title rights and interests identified at Kalkarti Gorge and other places well to the east of the Duck Creek Project. Duck Creek covers a distance of some 150 kilometres and at no point in the statutory declarations of Ms Cox or Ms Dowton is there any specific reference to the area on Duck Creek where mining will take place pursuant to tenement M08/456. Kalkarti Gorge is located some 20 kilometres east of the Duck Creek Project area so I don't consider the grant of these tenements would have any real effect on this area.
I also note that in the PKKP 2 claim, the registered native title rights and interests do not include the right to hunt, gather or take fauna. Any evidence of this activity in the PKKP 2 area is therefore not relevant to s 39(1)(a). However, this has not made any difference to my determination as minimal evidence of those activities has been given over the proposed tenement areas. The evidence of the enjoyment of these rights is relevant to s 39(1)(a)(ii).
I accept that Duck Creek at Kalkarti Gorge and further east is used by members of the native title party for camping and hunting and gathering from time to time but having been prepared for the purposes other than this inquiry the evidence provided by the native title party in respect of s 39(1)(a)(i) is not very extensive or detailed in relation to the Duck Creek Project area itself.
Native title is not extinguished by the proposed grants. The Government party’s proposed Extra Condition 1 permits access to the Project areas except where there are actual exploration or mining activities taking place or there are safety or security issues relating to them. The evidence does not support any weight being given to any effect of the future act on the enjoyment of native title rights and interests in the Mt Edith Project area and only limited weight given to this factor in relation to the Duck Creek Project area.

Section 39(2) – existing non-native title interests

I have had regard to the existing non-native title rights and interests which will already have had an adverse impact on the enjoyment of native title and other matters dealt with in s 39(1)(a) through partial extinguishment of native title rights and interests within the area of the proposed tenements. The existence of pastoral activities over the years are likely to have had a practical effect on the enjoyment of the native title rights and interests.

Section 39(1)(a)(ii) – way of life, culture and traditions

The native title party contend that the evidence given by Ms Dowton broadly explains the culture and traditions of the native title party and evidences how the proposed tenements will ‘destroy’ the native title party’s culture.

The native title party draws attention to the statutory declaration of Ms Pamela McGrath, specifically her evidence in relation to the Law ground located at Kalkarti which, the native title party contends, ‘is within the area of the proposed quarry mine’ (NTPSC, para 81). Again, the native title party seems to be operating under the misapprehension that the proposed tenements directly relate to the site known as Kalkarti, however at no point is this relationship described or explained. The native title party’s evidence relating to Kalkarti Gorge and places further east is not directly applicable to the Duck Creek Project area and even less so to the Mt Edith Project area.
There is insufficient evidence provided by the native title party about the way of life, culture and traditions practised within the area of the proposed tenements to support a conclusion that the grant of the proposed tenements will affect them except in the minimal way as already described in relation to s 39(1)(a)(i).

Section 39(1)(a)(iii) – development of social, cultural and economic structures

There is insufficient evidence provided by the native title party about the development of their social, cultural and economic structures. The native title party contends that the grant of the proposed tenements and subsequent development of projects will undermine the native title party’s authority, which will ultimately damage social and cultural structures (NTPSC, para 85). However this statement is general in nature and provides no clear evidence regarding the social and cultural structures and how they will be affected by the grants.
In this case there is no evidence that the native title party’s social, cultural and economic structures will be affected in any positive way.

Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

There is some evidence of ceremonies being carried out in the past in the Kalkarti Gorge area (MDSD, para 20, ACSD, para 17) but no evidence that the native title party regularly frequents the Project areas or that rites, ceremonies or other activities of traditional cultural significance are currently carried out there. In practical terms access to the area of actual mining will be restricted. However, the grant of the proposed tenements does not confer exclusive possession of the area on the grantee party and continuing access to some extent at least will be preserved by the Government party’s Extra Condition 1.

Section 39(1)(a)(v) – sites of particular significance

The question to be considered here is whether there are areas or sites of particular significance (i.e. of special or more than ordinary significance to the native title party) that will be affected by the future acts (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21, 34–35). The Tribunal will have to make a value judgement about whether, from the native title party’s point of view and according to their traditions, the area or site is special or different from other land in which the native title party has, or claims to have, native title rights and interests.
The native title party’s contentions address a very broad idea of the ‘affected area’ and as already stated make no distinction between the two Projects, which are located about 10-15 kilometres apart. Native title party evidence relating to sites concentrates on Duck Creek and particularly Kalkarti Gorge and other sites to the east of it. There is no evidence of the Mt Edith Project area being an area or site of particular significance to the native title party in accordance with their traditions. Native title party contentions (para 95) state that the affected area ‘contains a camp site which is of significant importance’ to the native title party, and that if the proposed tenements are granted, ‘the camp site will be destroyed’. It is unclear from this statement if the native title party is saying that the camp site is located within or even near any of the proposed tenements. There is no evidence to support this contention. The evidence of a camp site relates to the Kalkarti Gorge area and there is no evidence of any camp site in the vicinity of the proposed tenements which could be affected.
The evidence of Ms Cox and Ms Dowton establishes that the area described as Kalkarti Gorge, located on Duck Creek, is a place of special significance to the native title party in accordance with their traditions. Their evidence, together with the statutory declaration of Ms Pamela McGrath, documents a site complex comprising a law ground, camp site and burial site located at or near Kalkarti Gorge, which I can accept is an area or site of particular significance to the native title party in accordance with their traditions. However, as discussed above, even though both the Duck Creek Project and Kalkarti Gorge are situated on Duck Creek, Kalkarti Gorge is some considerable distance from the Duck Creek Project area and will not be affected by the proposed mining operations.
The native title party also contend (NTPSC, para 90) that the affected area contains ‘more than 12 sites registered’ on the Department of Indigenous Affairs (DIA) Site Register for the purposes of the Aboriginal Heritage Act1972 (WA). However, DIA Site Register documents provided by the Government party show there are no registered sites on or in the vicinity of the proposed tenements areas. Again it is unclear from the native title party’s statement which sites are being referred to but the Tribunal map shows a number of registered sites in a much wider area around both Projects but they are some kilometres away from them and none are likely to be interfered with by the mining operation or road construction.
It may be that the native title party contentions are meant to refer to para 8 of Ms McGrath’s statutory declaration where she refers to Duck Creek as ‘a named Aboriginal place along which at least twelve (12) other named Aboriginal sites are located’. The evidence is that none of these sites are registered and they are to the east of the Duck Creek Project and some even further east than Kalkarti Gorge. The examples given by Ms McGrath (PMSD, para 8) of Walyruk and Kuwari pools are established by Ms Dowton’s evidence to be further east along Duck Creek from Kalkarti Gorge at the ‘top end’ of Duck Creek (MDSD, para 15). Ms Dowton earlier described (MDSD, para 9) the ‘top end’ of Duck Creek to be near Mt Brockman, which is located much further east of Kalkarti Gorge and not in close proximity to any of the proposed tenements.
Ms Dowton’s evidence is that lots of people were born on Duck Creek (Kartatjirri) (MDSD, para 16) but most of the specific places she refers to are to the east of the Duck Creek Project area. Likewise Ms McGrath’s evidence refers to births along Duck Creek although none are identified to be near the Duck Creek Project area (PMSD, para 13).
The evidence relating to the significance of the whole of Duck Creek itself, as opposed to sites or areas either on or around it, is less specific and clear. Ms McGrath (PMSD, at paras 7 and 8 in particular) refers to the cultural importance of Duck Creek to PKKP people being ‘in part informed by the fact that it is home to many known and named sites associated with both the sacred geography (mythological landscape)’ of PKKP people. It is ‘considered central’ to PKKP people’s identity as ‘traditional owners’. It is also a ‘named Aboriginal place’ associated with other culturally significant places (PMSD, para 8). This evidence, when reviewed in the context of the other quite extensive evidence about the significance of parts of Duck Creek leads to a finding that Duck Creek itself is a site of particular significance to the native title party in accordance with their traditions. Whilst most of the specific evidence of the special cultural places relates to areas along the creek to the east of the Duck Creek Project I am satisfied, on balance, that the whole of Duck Creek is an area or site of the relevant kind even though there are some areas of even greater traditional significance identified at and to the east of Kalkarti Gorge.
The sites of particular significance to the native title party, such as Kalkarti Gorge, the law ground and burial site and other sites further to the east are sufficient distance from both Projects to make it unlikely they will be disturbed by the mining operations. With respect to Duck Creek itself the effect of the mining will not be great in the context of the length of it, the identified important sites that will not be affected and given that the Duck Creek Project impacts on a relatively small part of Duck Creek.
Another factor to consider is the nature of the proposed mining activity, which is relatively low impact over a comparatively small area. The grantee party’s proposed activities do not involve the sorts of activities undertaken in larger mining operations, such as open cut mines with substantial earth moving equipment and a processing plant.
As already noted, the Mt Edith Project is located some distance from Duck Creek and the evidence does not establish that there will be interference with any site of particular significance from the mining or construction activities proposed there.
The Tribunal has, on numerous occasions, considered the protective provisions of the Aboriginal Heritage Act 1972 (WA) (AHA). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner at [31]–[38], [40]-[41]. The Government party’s Extra Condition 2 will enhance the protective regime. Given the relatively limited manner in which the Duck Creek area or sites of particular significance to the native title party will be affected by the grant of any of the tenements, the protective provisions of the Aboriginal Heritage Act will provide a mechanism for dealing with any interference. The grantee party is now aware of the significance of Duck Creek as an Aboriginal site and will need to ensure that it complies with the AHA. There is no evidence to suggest that it will not do so.
The native title party’s evidence is quite detailed and based on considerable knowledge of the subject areas. Ms McGrath has spent a considerable amount of time acquainting herself with the PKKPs connection to country and with the native title party’s areas and sites of importance to them. The evidence relating to Duck Creek east of Kalkarti Gorge is quite detailed and compelling and establishes the existence of a number of important sites and identifies at least some current enjoyment of native title rights and interests in relation to that area. However, no such detail is provided in relation to either of the two Project areas. While accepting that Duck Creek is a relevant site I can safely infer that neither of the Project areas involve areas or sites of the same significance as those specifically identified. There was ample opportunity for evidence to be provided specifically about the Project areas but it was not forthcoming. Had Ms McGrath been in possession of such information after the extensive enquiries she has obviously made then it could have been readily provided in evidence.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters

There is limited detailed evidence of any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the area of the land. The native title party’s primary contention was that a determination should be made that the act may not be done. Alternatively, if the grant was to proceed then conditions of the kind imposed in Koara No.2 should be imposed (see below) or alternatively as a bare minimum the Government party’s ‘Extra Conditions’ should be imposed. There is no doubt that the native title party was prepared to enter into an agreement to allow the Onslow Tenement Project to proceed on terms acceptable to it. Indeed, the final submissions of Mr Kakay assert that such an agreement had been reached. It is well established that the Act does not give the native title party a veto over mining (Australian Manganese Pty Ltd v State of Western Australia and Others [2008] NNTTA 38; (2008) 218 FLR 387 at 408-409 [55]-[57] and 412-413 [71]-[72]). Nevertheless, there are circumstances were the evidence, including the interests, proposals, opinions or wishes of the native title party, in opposition to a future act, supports a determination that the act may not be done. The fact that a native title party is not opposed to mining but has not reached a satisfactory agreement in relation to it does not automatically justify a determination that the act may be done (Western Desert Lands Aboriginal Corporation v Western Australia and Anor [2009] NNTTA 49; (2009) 232 FLR 169; (2009) 2 ARLR 214 (Martu/Holocene) at [162]). The Tribunal is required to take into account all evidence and give appropriate weight to the interests, proposals, opinions or wishes of the native title party in that context. The facts on which the Martu/Holocene determination were based are clearly distinguishable from the present facts. There was evidence of direct and substantial interference with a site of particular significance to the native title party in accordance with their traditions. There is no such evidence in this case and the evidence of other adverse effects of the kind referred to in s 39(1)(a) is minimal or non-existent. In the circumstances of the present case I have had regard to the fact that the native title party was prepared to negotiate an agreement for mining to proceed over the proposed tenement areas and that there was no insuperable obstacle from their cultural or traditional perspective to the proposed mining taking place.

Section 39(1)(c) – economic or other significance

Both the Government party and grantee party have provided information regarding the economic benefits to the community. The Government party contends that the grant of the proposed tenements will benefit the State through royalty payments and there is likely to be benefits to the local economy generally.
The grantee party contends that the grant of the proposed lease will assist the local economy by allowing the development of a local resource and engaging local communities to provide services for the Project; the State of Western Australia by the payment of royalties; and Australia generally by the contribution to the national tax base (GPSC, para 11.1).
The native title party contends that there is no evidence to support the economic significance of the projects or benefit to the PKKP people, in particular employment or development opportunities.
I adopt the Tribunal’s findings in Waljen at 215-216 on the significance of the mining industry to Western Australia. The Duck Creek Project and Mt Edith Quarry involves exploitation of a mineral resource and I generally accept the Government and grantee parties’ contentions as to its economic significance. The products mined are to provide material to support the construction of infrastructure of various kinds in the Onslow Region. Although not of great national significance, I accept that the purposes will be of significance to the local economy. However, as explained above, it is not clear the extent to which (if at all) the local Aboriginal community will benefit and no weight has been given to this alleged benefit.

Section 39(1)(e) – public interest

The grantee party considers that the use, development and management of a local resource is in the public interest (GPSC, para 12.1). The Government party says the public interest is served by the development of a mine or mines over the area of the proposed lease as a result of the economic benefits on a local, state and national level. I am satisfied that the public interest is served by the development of the proposed mine and its potential economic significance (Evans at 214-215 and Waljen at 215-216). In this case there are no countervailing public interest considerations based on the proposed mining having a substantial effect on the factors in s 39(1)(a) of the Act.

Conditions

The native title party has sought the imposition of conditions similar to those imposed in Koara 2 (at 314-332). The native title party contends that these conditions should be imposed because of the substantial uncontested evidence in relation to the likely detrimental effect of the mining operations on the PKKP people’s rights (para 82 – First and Second native title party’s Supplementary submissions – Conditions, filed 6 April 2011). For the reasons already given this is not my view of the evidence.

The Koara 2 conditions deal with the following issues.

The native title party’s right of access to the tenement areas (similar to the Government party’s Extra Condition 1).
The Government party to give the native title party details of the tenement grant (referred to above in para [32] and which the Government party has undertaken to do).
Aboriginal site protection including:
- compliance with the Aboriginal Heritage Act 1972 (WA);
- the conduct of an Aboriginal site survey; and
- no exploration or mining operations to be carried out on sites except with the written consent of the native title party or pursuant to s 18 of the AHA (which enables the Minister to authorise interference with a site).
The grantee party to serve on the native title party any notice to the Aboriginal Cultural Material Committee under s 18 of the AHA to disturb a site (similar to Government party Extra Condition 2).
The Government party to forthwith provide to the native title party any recommendation and supporting documents of the ACMC to the Minister in respect of a site.
The Government party to forthwith give the native title party notice of the Minister’s decision on a s 18 application.
Where development or productive mining or construction activity is proposed the grantee party is to give a copy of the proposals with relevant information to the native title party including any material changes to it (similar to Government party’s Extra Condition 3).
Where there is to be a formal assessment of a proposal to undertake development or productive mining or construction activity under the Environmental Protection Act 1986 (WA) (EPA) the grantee party must conduct a socio-economic impact statement in relation to the proposal.
The Government party to give a native title party the opportunity to make submissions on whether a proposal for developmental or productive mining or construction activity should be referred to the Environment Protection Authority under the EPA.
The grantee party to develop an employment and training policy and program designed to provide employment and contracting opportunities for members of the native title party.
The grantee party to provide information on Aboriginal cultural awareness to its employees.
The grantee party to establish a Liaison committee with the native title party.
Conditions dealing with assignment of the tenements to another entity (dealt with in Government party’s Extra Condition 4).

In my view the evidence does not support the imposition of conditions in addition to the Government party’s Extra Conditions. The Koara 2 conditions were formulated in the specific circumstances that existed at the time in Western Australia where a mining lease could be granted for further exploration purposes and where there might be no knowledge of whether productive mining would result from the exploration or the scale or location of it. It was in these circumstances that the Koara 2 conditions were imposed to provide a native title party with certain rights in the event that the mining lease was used for productive mining. That is not the present situation. The Tribunal knows of the current intentions of the grantee party and has details of the proposed mining before it. The Tribunal is in a position itself to assess the grantee party’s proposal in the light of the factors in s 39 of the Act. For instance, the socio-economic impact assessment condition is not necessary because the Tribunal has the opportunity to consider evidence produced in relation to the s 39(1)(a) factors which cover the same ground (see Western Australia v Thomas [1999] NNTTA 99; (1999) 164 FLR 120 (Anaconda 1) at p 184-188).
The evidence does not support the imposition of conditions dealing with a site survey, employment and training, a cultural awareness program or a Liaison Committee. There is very little evidence that the Projects will affect native title rights and interests and the manner in which the sites of particular significance to the native title party (Duck Creek) will be affected has been identified. Further, the projects are not large, disruptive enterprises employing large numbers of people in close proximity to existing Aboriginal communities. It could also be argued, as the grantee party has done, particularly in relation to the Mt Edith Project that there is no evidence justifying any conditions. However, on balance I have decided that it is appropriate to impose the Government party’s Extra Conditions in relation to all three tenements taking into account among other things the Government party’s view that this is an appropriate course.
The right to negotiate provisions of the Act maintain the status quo pending a determination of native title. The native title party is in negotiations with the Government party about a consent determination of native title which may give them non-exclusive native title rights and interests to the subject areas (PMSD, para 3). If a determination is made the native title party will have an interest in knowing what is happening on their country and the notice condition provides for that to happen. Further, the area is not devoid of sites and the work at the Duck Creek Project being on Duck Creek itself will probably interfere with an Aboriginal site. A condition requiring notices about the grantee party’s intention to interfere with a site is justified. I have already pointed out that the grantee party will need to comply with the AHA and this may need them to consider whether an Aboriginal heritage survey should be carried out.
No contentions for the imposition of a bank guarantee or trust condition security payment to the native title party in the event of a determination of native title and subsequent determination of compensation (s 41(3)-(5) NTA) were made and the evidence does not justify the imposition of one.

Conclusion

In weighing the various factors which the Tribunal is required to take into account, I have had regard particularly to the fact that there is minimal evidence that the grant of the proposed tenements will have an effect on the enjoyment by the native title party of their native title rights and interests or other factors in s 39(1)(a) of the Act.
Although the evidence is not entirely clear (because it was concentrated on areas well to the east of the Duck Creek Project) I am satisfied on balance that Duck Creek at the point where mining will take place is part of an Aboriginal site under the AHA and is of particular significance to the native title party. I have considered that the regulatory regime under the AHA and the Government party’s proposed Extra Condition 2 are adequate to deal with this situation. The Projects will have some economic significance to the local area in particular and are in the public interest in supporting economic development in the region. I have taken into account the native title party’s wishes and the Government party’s preparedness to accede to their request to impose the Government party’s ‘Extra Conditions’. No other conditions are justified on the evidence.
The determination is made on the basis that the Government party will comply with its undertaking referred to in para [32].

Determination

The determination of the Tribunal is that the acts, namely the grant of mining lease M08/455 and miscellaneous licence L08/46 to Magnesium Resources Pty Ltd, and mining lease M08/456 to Anthony Warren Slater, may be done subject to the following conditions:
Any right of the native title party (as defined in Sections 29 and 30 of the Native Title Act1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Where, prior to commencing any development or productive mining or construction activity, the grantee party submits a plan of proposed operations and measures to safe guard the environment or any addendums thereafter to the Director of Environment at the Department of Mines and Petroleum for his assessment and written approval; the grantee party must at the same time give to the native title party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
Upon assignment of the mining lease the assignee shall be bound by these conditions.

Hon C J Sumner
Deputy President
9 May 2011