Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd

[2012] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd, [2012] NNTTA 1 (6 January 2012)

Application No:               WO11/286 and WO11/287

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined) (WC99/12) (native title party)

- and -

The State of Western Australia (Government party)

- and -

Iron Duyfken Pty Ltd (grantee party)

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

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  6 January 2012

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

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 63

Mining Act 1978 (WA), ss 20(5), 63, 111

Environmental Protection Act 1986 (WA)

Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Land Administration Act 1997 (WA) s 91

Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127

Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15

Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1

Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15

Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35

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

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65

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

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18

Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24

Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representative of the

native title party:             Ms Lea Notte, Pilbara Native Title Service

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

Government party:         Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the      
grantee party:                 Ms Diya Sequeira, Tenement Administration Services Pty Ltd

REASONS FOR DETERMINATION

1. On 17 November 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E08/2190 and E08/2191 (‘the proposed licences’) to Iron Duyfken Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, they were acts which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences are located in the Shire of Ashburton and their size and location are as follows.

   ·   E08/2190 – 12.87 square kilometres, eight kilometres south west of Pannawonica; and

   ·   E08/2191 – 12.71 square kilometres, 19 kilometres south west of Pannawonica.

The proposed licences are situated entirely within the Kuruma Marthudunera (Combined) registered native title claim (WC99/12 – registered from 24 June 1999).  No other native title claims or determination areas overlap the proposed licence areas.

1. On 1 March 2011, an expedited procedure objection application was lodged with the Tribunal by Mark Lockyer and others on behalf of Kuruma Marthudunera (Combined) (the native title party) in respect of E08/2190 (designated as WO11/286) and E08/2191 (designated as WO11/287).

2. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. At a preliminary conference on 12 April 2011, all parties requested that the matter proceed to inquiry.

4. On 28 June 2011, the native title party requested an extension to the dates for provision of its contentions and evidence.  The request was granted, with the Government party to comply by 22 August 2011, followed by the native title party on 29 August 2011 and the grantee party on 5 September 2011, with a Listing Hearing scheduled for 9 September 2011.

5. The Government party lodged its evidence and contentions on 8 July 2011, with supporting documentation lodged by the Department of Mines and Petroleum (‘DMP’) on 16 June 2011.

6. A further extension of time was granted to the native title party to 17 October 2011, and on 13 October 2011 it lodged unsigned copies of witness statements made by Mark Lockyer and Elaine James. The native title party then requested an additional four week period to obtain signed versions of the witness statements, but due to an administrative error the Tribunal did not process this request. Had this request been processed, the compliance date would have been extended to 17 November 2011. On 25 October 2011, the native title party provided the Tribunal with a signed copy of the statement made by Ms James, followed by a signed copy of Mr Lockyer’s statement on 8 November 2011, which would have been within the compliance date of 17 November 2011. As the error was on the part of the Tribunal, the signed statements were identical to the unsigned versions provided earlier, there had been no objections from parties to previous requests for extensions of time and parties had the opportunity to provide evidence in relation to the submissions (see [10]-[12] below), I accept the signed statements for the purposes of making the predictive assessment required by s 237 of the Act.

7. The native title party had not provided a copy of the unsigned statements to other parties, and on 17 November 2011 the signed versions of these statements were provided to the other parties by the Tribunal. Although contentions were not lodged by the native title party, and they would have been helpful in this matter to support the statements which were provided, I find that the statements themselves are sufficient to constitute compliance with the directions and I accept the material for the purpose of making the predictive assessment required by s 237 of the Act. The grantee party has not lodged any contentions or evidence but indicated its intention to rely on those of the Government party.

8. At the listing hearing on 27 October 2011, the Government party representative asked whether there was any opportunity to raise questions about whether they could obtain oral evidence, and were advised that they could make such a request to the Member once the matter had been referred.  This was followed up by an email from the DMP representative for the Government, which indicated that a request may be made for further time to consider the information in the native title party submissions, with a view to filing a response with the Tribunal. 

9. The matters were referred to inquiry at a Listing Hearing on 27 October 2011 and on 31 October 2011 I was appointed by the Hon C J Sumner, Deputy President, as the Member for the purpose of conducting the inquiry.  

10. On 17 November 2011, the Tribunal allowed a further 21 days (that is, up to 8 December 2011) for the grantee party and the Government party to review the native title party statements and make any additional submissions to the Tribunal for the Member’s consideration. On 18 November 2011, the Government party provided maps indicating the dimensions of the tenement applications and the land actually available for grant. The email providing those maps reiterated the Government party’s intention to review the native title party contentions and, depending on the content, to prepare a response and consider making application to the Tribunal to test the evidence via an open hearing, rather than have the Member make a determination ‘on the papers’. The email indicated that the Government party welcomed the 21 day period in which to attend to these issues. On 25 November 2011, the Tribunal sought information about the status of any further submissions from the Government party, and was advised that the Government party may still apply for the Tribunal to hold a hearing prior to making a determination. The Tribunal advised it would expect to receive any such application by 8 December 2011, being the date set down for the Government party and the grantee party to respond to the native title party submissions, and make any additional submissions should they wish to do so. No further submissions were received from parties, and as such the inquiry is proceeding to be determined ‘on the papers’, as per s 151(2) of the Act.

11. I note that the evidence provided by the native title party is in the form of signed statements only, with no contentions provided by the native title party. The Tribunal is not bound by the rules of evidence (s 109(3) of the Act). The determination in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (‘Ryder’) (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that evidence relating to the matters in s 237 are central to the making of a determination, and that the best evidence relating to a matter will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. Applying these principles in the present case, I am satisfied that the statements are admissible, accept them on their face, and will deal with the material for the purpose of making a predictive assessment pursuant to s 237 of the Act.

12. I note that the objection application (at para 7) asserted that the s 29 notice did not meet the requirements of the Act. This issue was not pursued further by the native title party and no evidence was produced to support that assertion. I am satisfied that the Tribunal has jurisdiction to determine the matter.

Legal principles

1. Section 237 of the Act provides:

   ‘237 Act attracting the expedited procedure

   A future act is an act attracting the expedited procedure if:

   (a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

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

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

2. In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

4. In relation to determining s 237(a), I adopt the following findings from Tarlpa:

   · History and interpretation of s 237(a) as amended (at [57]-[64]).

   · The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.

   · The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

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

5. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).

6. The task of` the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court of the Federal Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in relation to the proposed act

1. The Government party has provided documents including: a statement of contentions; tengraph plans with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement applications; copies of the proposed endorsements and conditions of grant; and tengraph quick appraisals.

2. Government party documentation establishes the underlying land tenure of the proposed licences to be as follows:

E08/2190

·   Historical Lease 394/611 overlapping at 100 per cent;

·   General Lease K876559 at 4.2 per cent;

·   Pastoral Lease 3114/1013 (Yalleen) at 95.3 per cent;

·   Two File Notation Areas (FNA/7662 and FNA/7359) at 4.2 per cent and less than 0.1 per cent respectively;

·   Vacant Crown Land at 0.6 per cent; and

·   ‘Live’ leases/licenses as outlined in [24] below.

E08/2191

·   Two Historical Leases (394/611 and 394/612) overlapping at 35.8 per cent and 28.7 per cent respectively;

·   Pastoral Lease 3114/1127 (Yarraloola) at 46.3 per cent;

·   Vacant Crown Land at 53.7 per cent; and

·   ‘Live’ leases/licences as outlined in [24] below.

1. DMP evidence indicates that services affected on proposed licence E08/2190 includes: one operating open pit mine (East Deepdale Mesa), 95 minor roads (unsealed), 28 tracks, railway infrastructure, nine unknown buildings, three non-perennial major watercourses, 19 non-perennial minor watercourses, nine quarries, as well as a channel/drain, one named spring/soak/rockhole/waterholes (Medawandy Waters), six unnamed spring/soak/rockhole/waterholes and two transmission lines.  In relation to proposed licence E08/2191, DMP evidence indicates that services affected on the proposed licence includes: 26 cliff/breakaway/rockridges, two non-perennial major watercourses, 24 non-perennial minor watercourses, one named spring/soak/rockhole/waterhole (Gnieraoora Pool), and 12 unnamed spring/soak/rockhole/waterholes.

2. Government party documentation also establishes in respect of the proposed licences:

   ·   E08/2190 – one ‘live’ mining lease granted in 1971 overlapping at 70.0 per cent, one ‘live’ exploration licence granted in 2006 at 4.5 per cent and one pending exploration licence applied for in 2010 at 25.0 per cent.  Three dead tenements were withdrawn before they were granted in 1997 and 2008 respectively, and one tenement granted in 1962 was cancelled in 1976.

   ·   E08/2191 – one ‘live’ mining lease granted in 1971 overlapping at 46.4 per cent and one pending miscellaneous licence applied for in 2005 at 14.4 per cent.  Recent ‘dead’ tenements include one exploration licence granted in 1994 and surrendered in 1996 overlapping at 40.7 per cent, and one exploration licence granted in 2005 and surrendered in 2006 at 53.6 per cent.  The remaining three dead tenements were all granted in the 1960’s and cancelled by 1976.

3. In further submissions provided to the Tribunal on 18 November 2011, the Government states that the land available for grant does not include the area covered by the ‘live’ tenements, and the area affected by the proposed licences will be confined to those areas that do not overlap the existing tenements.  This reduces the size of the proposed licences substantially.  The non overlapped portion of E08/2191 is in approximately the southern third, along with a 0.5 kilometre corridor along the western boundary, and a 100 metre corridor along the northern boundary.  For E08/2190, the non overlapped portion is in the south east area of the proposed licence (approximately a fifth of the total area).

4. The Government party documentation indicates that there is an Aboriginal community (Yatharla) approximately six kilometres from the western most boundary of E08/2190 and approximately four kilometres from the north-eastern boundary of E08/2191.

5. The Register of Aboriginal Sites maintained by the DIA pursuant to the Aboriginal Heritage Act1972 (WA) (‘AHA’) documents 15 registered sites, or boundaries (exclusion zones) to sites, within E08/2190:

   ·   6130 – Mesa L. Pannawonica, artefacts/scatter, open access;

   ·   7047 – Rock Python Stone, mythological, closed access;

   ·   7048 – Robe River Thunder Talu, ceremonial, artefacts/scatter, man-made structure, open access;

   ·   8128 – Deepdale 69, artefacts/scatter, rockshelter, open access;

   ·   8129 – Deepdale 70, artefacts/scatter, rockshelter, open access;

   ·   8175 – Deepdale 61, artefacts/scatter, open access;

   ·   8176 – Deepdale 62, artefacts/scatter, archaeological deposit, camp, rockshelter, open access;

   ·   8177 – Deepdale 63, skeletal material/burial, artefacts/scatter, archaeological deposit, camp, rockshelter, closed access;

   ·   8178 – Deepdale 64, artefacts/scatter, open access;

   ·   8179 – Deepdale 65, artefacts/scatter, rockshelter, open acces;

   ·   8181 – Deepdale 67, artefacts/scatter, open access;

   ·   8182 – Deepdale 68 A-D, artefacts/scatter, rockshelter, open access;

   ·   10095 – Pannawonica K Ore Body, artefacts/scatter, camp, open access;

   ·   10096 – Pannawonica K Ore Body, artefacts/scatter, camp, open access; and

   ·   10098 – Pannawonica Rail Loop, quarry, artefacts/scatter, camp, open access.

In addition to the registered sites listed above, there are an additional 32 ‘other heritage places’ within E08/2190.

1. The Register of Aboriginal Sites documents three registered sites, or boundaries (exclusion zones) to sites, within E08/2191:

   ·   6462 – Yeera Bluff North, ceremonial, closed access;

   ·   6517 – Deepdale Burial, skeletal material/burial, closed access; and

   ·   6980 – Deepdale A, artefacts/scatter, open access.

In addition to the registered sites listed above, there are an additional 31 ‘other heritage places’ within the E08/2191.

1. When looking at the plan available for grant (that is, the area which does not include that covered by the live tenements) and looking at Tribunal mapping created on 7 December 2011, it appears that the following identified sites, or boundaries to sites, are positioned on the unoverlapped portion-that is, on the portion available for grant:

E08/2191

·   6462 Yeera Bluff North;

·   6517 Deepdale Burial Area;

·   6434 Nyiryinmaru;

·   21526 Robe River (Gadjiwura);

·   Lockyer Yinta; and

·   Thalaratna Law Ground.

E08/2190

·   8177 Deepdale 63;

·   7048 Robe River Thunder Talu;

·   21526 Robe River (Gadjiwura);

·   Buggumadda Law Ground; and

·   Yuntu Thalu.

1. A draft tenement endorsement and conditions extract for each of the proposed licences included in the Government party’s documentation indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licences and of certain exploration activities (conditions 5-6).

2. In relation to E08/2190, a further condition is to be imposed as follows:

   ·   The rights of ingress to and egress from General Lease K476559 being at all times preserved to the lessee and no interference with any installations, structures, excavations, roads and improvements situated or to be situated on the Lease.

In relation to E08/2191, the following conditions in addition to those listed in paragraph [30] of this determination will also be imposed:

·   The rights of ingress to and egress from Miscellaneous Licence 08/30 (if granted) being at all times preserved to the licensee and no interference with the purpose or installations (either present or future) connected to the Licence;

·   Mining on any road, road verge or road reserve on Miscellaneous Licence 08/30 (if granted) being confined to below a depth of 15 metres from the natural surface;

·   The rights of ingress to and egress from Mineral Lease 258SA being at all times preserved to the lessee and no interference with the purpose or installations (either present or future) connected to the Lease;

·   The Licensee ensuring that all matter containing saline, alkaline, cyanide or other process chemical constituents being retained within holding facilities, such that there is no impairment of surface or underground waters;

·   No activities being carried out that will adversely affect the waters from surface and underground sources, the holder of Miscellaneous Licence 08/30 (if granted) being notified as soon as possible of any incident with potential to adversely affect quality or quantity of water from any source on the Licence; and

·   Mining on a strip of land 20 metres wide with any (water main/pipeline) situated on Miscellaneous Licence 08/30 (if granted) as the centreline being confined to below a depth of 31 metres from the natural surface and no mining material being deposited on such strip.

1. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the proposed licences.

   · The Licensee’s attention is drawn to the provisions of the AHA and any Regulations thereunder;

   ·   The Licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained; and

   ·   The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 (WA) (Mining Act) under Section 111 of the Mining Act is authorised to explore for iron.

In relation to E08/2190, a further endorsement will be imposed as follows:

· The Licensee’s attention is drawn to the existence of a licence for geotechnical investigations granted pursuant to section 91 of the Land Administration Act 1997 (WA) and which is shown designated as FNA 7359 in tengraph.

1. Government party contentions (at para 5(e)) indicate that a further condition will be placed on the grant of the proposed licences requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (RSHA) as follows:

   “In respect of the area covered by the licence the Licensee, if so requested in writing by the Kuruma Marthudunera, the applicants in Federal Court application no. WAD6090 of 1998 (WC99/12), such request being sent by pre-paid post to reach the Licensee’s address c/- Tenement Administration Services Pty Ltd, Level 2, 326 Hay Street, East Perth WA 6004 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Kuruma Marthudunera the Regional Standard Heritage Agreement endorsed by peak industry groups and Pilbara Native Title Service.”

Evidence provided by the native title party

1. The evidence provided by the native title party in relation to the proposed licences comprises the signed statements of Ms Elaine James and Mr  Mark Lockyer.

2. The statement of Ms James is made in the following terms:

   ‘Introduction

   1. I am a Robe River Kuruma woman and a member of the Kuruma Marthudunera (‘KM’) native title claim group (WAD6105/98, WC96/73).

   2. I am authorized to make this statement in support of the KM native title claim group’s contention that the grant of E08/2190 and E08/2191 to Iron Duyfken Pty Ltd (‘the Licences’) is not an act attracting the expedited procedure.

   3.Except where I say otherwise the facts set out in this statement are within my own knowledge and belief, and to the best of my knowledge and belief they are true and correct.                   

   4.I was born at Old Yalleen Station in the claim area on 25 December 1949 and I grew up there with my mother Ruby and my father Finlay (both Kuruma people).

   5.My father was a stockman and we travelled from station to station mustering – stations like Yalleen, Red Hill Station, Mount Enid Station and Yarraloola Station and Millstream Station.

   6.Growing up I learnt about Kuruma law and culture from my parents and from all the Kuruma old people who lived with us on the stations or who we met as we travelled around or at the holiday camps for law meetings.  They taught me how to hunt for kangaroo, goanna and other animals, and where to find water, about bush plants, about rain season. They taught us about the land too.

   7.My mother and father always told me “this is our country and you have gotta learn to look after it, you were born here, all your ancestors came from here, you have to look after it”.  When we travelled around with my father he would teach us as we camped for dinner by asking us where we were.  We would look around for the mesas and the rivers.  That is how they found their way around in the old days and that is why it is important to keep the mesas and the rivers the same today.

   8.Birthplaces are also places we are supposed to look after.  Where the old people were born and where our generation was born.  We have to look after those places for spiritual reasons.

   9.Burial places should not be disturbed.  The old people should be allowed to rest in their own country.  Our old people said “we’ll always be there – make you feel stronger”.

   10.There are many important sites on Kuruma country – law grounds, burial grounds, dreamtime places like thalu sites.

   11.I moved away from Kuruma country when I was married to a Bardi man, but I always came back and now I live in Karratha – back near my country and my Kuruma people.

   12.When I was growing up at Yalleen I learnt about bush medicines.  I still use bush medicines.  On a field trip in 2007 I collected a plant called Jami in Jajiwara (the Robe River) near Urruna.  You can use it as a medicine or you can rub it on your skin to take away bad spirits, so the good spirits will know that you are in the country – so the spirits of the old Kuruma people will know that you are.  I have for some time been compiling a book of all the bush medicine plants I was taught about.  I want my children to know about them.

   13. I am respected as a knowledgeable elder of the KM claim group.

   Experience with Mining

   14.I am a regular member of heritage survey teams advising mining companies on ethnographic and archaeological sites within the KM claim area that are in the path of ground disturbing exploration activity like roads and drilling.

   15.I know what is involved in exploration.  I have been on heritage surveys with many mining companies and they told me exactly what is involved.  They use big machines like bulldozers to make a road to get into the exploration area.  They used big machinery, drills.  They have to bring the drills in on the back of trucks, so they have to make clear tracks for the trucks.  I’ve seen what the drills do and the tracks – that is can [sic] damage sites. We don’t want that kind of disturbance near the river.

   16. The river is our main concern.  Our people have always lived along the river, there are so many camping places, where there is always water, and it’s been like that for generations.  And if they do find some mineral like iron or copper, then the company will have to dig it out and leave a big hole in the ground.

   17.On heritage surveys our job is to go in before the bulldozers and drilling and check if there are any sites or artifacts [sic] that might be damaged by the ground disturbing exploration activities.  I have now been doing heritage survey work for 6 years and am very experienced in recognizing sites and artifacts [sic].

   Kuruma Traditional Law and Custom

   18.In our traditional law and culture we must look after our country and respect it and keep it healthy.

   19.We have to make sure that strangers do not go and damage our country – that’s why they need to ask us first so we know who is going there and what they are doing.  We need to make sure they are not going to damage the country and important places in there.

   20.There are also dangerous places in our country because of the spirits.  People can get sick if they go to these places, maybe even die.  We need to protect people so they don’t come to any harm, that’s why they need to ask come [sic] and talk to us before they go on our country.

   The Licences

   21.I have been shown a map of the Licence areas by Samara Gillard, an employee of Yamatji Marpa [sic] Aboriginal Corporation.  I know this area very well and I am able to talk about the sites in the Licences as they are in Kuruma country.  The map I was shown is annexed and marked ‘EJ1’.[1]

   [1] Note that there is no annexure named EJ1- the only annexures of this statement are outlined in paragraph [37] of this determination.

   22.The country in these Licences is our place and other people have to ask us permission before they go there.

   The Country Covered by E08/2190

   23.These Licences (both E08/2190 and E08/2191) cover the most important waterway in our country – the Robe River, which we call Jajiwara.  We are Jajiwara people – it’s the main river that belongs to the Kuruma people.  Our old people live all along that river.  It is the most important place to us.

   24.The Robe River is a no go zone for miners, a forbidden zone. It is a registered site (DIA Site ID 21525[2] [sic]).  The River is the most important things to us.  Water flows into the river from the sacred pool in Bungaroo, called Martimarti.  It is outside the Licences but these waterways are all connected by the water snakes and the flow of the water– every pool has a name and they are all connected.

   [2]  I note that the DIA Register references Robe River as Site ID 21526 so take this reference to Site ID 21525 to be a typographical error.

   25.From the start to the finish there are grave sites, dream time places and thalus.  There are also many artifact [sic] scatters from my old people living there (there are 16 artefact scatters registered with the DIA).  One example is a registered site (DIA site ID 8177) in E08/2190 where there is an artifact [sic] scatter and camp not far from the river.

   26.There are many important places in our country.  There are a number of law grounds on the Robe River.  These include Jungarri, Duck Pool (Yarramarda), Pakumarra (under the railway bridge over the Robe River to Mesa J) and Kayiyawarra (on the tip of the Robe River, on the north side).

   27.Pakumarra (Bugumarra) is in this licence (E08/2190).  My mother and father particularly told me that the law grounds on the Robe River should not be touched. They said “This is for your people.  Make sure you keep them the way we kept them”.  It was all Kurrama.  They should not be disturbed, no cars. According to tribal law it is a restricted area.  Burial places should also not be disturbed.  The old people should be allowed to rest in their own country.

   28.The other important places are the major landmarks: the mesas and the rivers. They are our maps.  There are special mesas were [sic] the old people used to watch out where you go.

   29.Pannawonica hill (Parlapuuni) is the biggest story and heritage for our people and according to our law, it should be untouched, especially the river.  Parlapuuni is not far from this tenement – about 3 km upstream.

   The Country Covered by E08/2191

   30.In Licence E08/2191 there are also lots of artefact scatters, rock shelters and grinding stone – there are 3 Registered Aboriginal Sites and 31 Other Heritage Places (including artifact [sic] scatters, rock shelters and pools) in that Licence.  That is because my old people have always lived along the river.

   31. This tenement is next to Deepdale Station about 100m away.  Nirrara is an important yinta (permanent pool) inside this Licence (E08/2191).  It’s the yinta that belongs to Mr. (Gordon) Lockyer (respected Kuruma elder now deceased), because he was born near there at Deepdale station.

   32.There are birth places all along the river.  I was born on another part of the Robe River.

   33.There is a men’s place I know there across from Thallaratna in that Licence (E08/2191).  It’s a Law ground, but I can’t talk about it much because it is a men’s place.  It is a dangerous place and a sacred site.  It’s a no go zone except for initiated men.  No one can go there.  Only keepers, Kurruma men who have earned the right to go, there [sic] can go there.

   34.I travel all along the Robe River.  We are always going along the Robe; if it’s not me then other families are.  There are a lot of camping areas, good camping areas.  We camp at Pannawonica hill, then visit Jadina and camp near the river there.  Then there are good camping places at Ngalooin Pool, Churdy Pool.  Mundary is a good fishing place.

   35.We camp, fish, hunt, gather bushtucker, tell stories, get badi grubs, little witchety grubs – Janguna, we call them.  They live in young gum trees and you find them along the river.  We also get Malia (bush honey) from the paper bark trees which grow around the river.  We also get the white flakes of the gum trees – warranungu.  They’re sweet, like fairy floss, stuck to the leaves.  These things grow along the river where there is water.  Millinja is fresh water trout – it lives in the permanent pools all along the river.  Jamni, a medicine for colds and coughs, that is in the river bed too.

   36.Minjarra is a tree that only grows in the river.  It’s for smoking naughty kids– you burn it and blow the smoke over the kids and it makes them strong.  You speak the language when you put them in the smoke.  It’s like a cork tree– it has a beautiful perfume smell, and you rub the ashes on the little kids too.  It always grows in the river where there is plenty of water.

   37.Because they are permanent pools, you know you can always go there and camp and have plenty of food and water.  We teach our kids about them.  These permanent pools have to be looked after.  That’s why Kuruma people always go along the Robe River and to the country within these Licences whenever they can.

   38.These places are important to the KM native title claim group and we have to protect them.  If there is a drill hole or a big truck there, we will feel as though we failed in looking after the country, and we’ll get in trouble.

   Consequences of disturbing Country and Sites

   39.If these places were disturbed or changed, this would destroy our beliefs, our culture, our identity as a people.  And it would be dangerous for us if other people go to those places – it could be my family, my kids that get hurt as punishment for not protecting the country from strangers.

   40.We want to save the white people as well, protect them.  I know about one old white man, he was married to an Aboriginal woman but he made just one mistake and went swimming in that dangerous waterhole in Bungaroo and he died.  That water hole is outside of these Licences but the water from Bungaroo flows down into the Robe River and it is all connected.  There are dangerous pools like that in these Licences.

   41.It is important that the mining company comes and talks to us so we can tell them where it is safe to go and so they know not to go to our significant places.  We don’t know them and haven’t met them so we can’t trust them.

   42.I believe that the grant of the Licences involves a real chance of interference with sites and areas of particular significance to members of the KM native title claim group.’

3. The statement of Mr Lockyer is made in the following terms:

   ‘Background

   1. I am a senior member of the Kuruma Marthudunera (‘KM’) native title claim group (WAD6105/98, WC96/73) and I am an applicant on the claim.

   2. I am authorised to make this statement in support of the KM native title claim group’s contention that the grant of E08/2190 and E08/2191 (‘Licences’) is not an act attracting the expedited procedure.   

   3.I was born in Roebourne in 1961.  My father, Gordon Lockyer, was a senior law man and was the one who got the KM native title claim started.

   Kuruma Law and culture

   4.I grew up on Kuruma country and travelled everywhere with my father who was a government dogger.  I know everything about that country as I have been everywhere on it.  My father and other old people taught me all about the country and about Kuruma law.

   5.I know our law and culture.  I am a senior initiated and knowledgeable Kuruma man and I have the authority to speak for country.

   Experience with Exploration and Mining

   6.I have seen a lot of mining over my lifetime.  I have worked for mining companies in other regions – Granny Smith Mines.

   7.As a senior man, I have been also monitoring and surveying for exploration.  I have been doing heritage surveys for our native title claim for many years.  I know a lot about what exploration involves.  Before they go out they look at a map and put into a GPS where they think there is likely to be minerals.  Then they make a plan for exploration drill lines, where they will drill.  But before they drill anything, they also need roads to get the drill pad into the area.  So, first they have to do a survey to find out if the roads or the drill holes will impact on any heritage sites.  They have to do a survey with us to check.  If there is a site, they have to go around it, and if they can’t go around it then they have to apply for a Section 18 to destroy that heritage site.  They need to go with people who are from that country so they know where the heritage sites are.

   8.Before any of this, the company has to come to the table and negotiate with the right people for country.  All companies should do this.

   The Licences

   9.I have been shown a map of the License [sic] areas by Samara Gillard, an employee of Yamatji Marpla [sic] Aboriginal Corporation.  I know this area very well and I have the authority to speak for it.  A copy of the map I was shown is annexed and marked ‘ML1’.[3]

   [3] Note that there is no annexure named ML1- the only annexures to this statement are outlined in paragraph [37] of this determination.

   10.People need to come and ask permission from the KM before they go anywhere on our country.  The country in the Licences is particularly special to us, so strangers to that country must come and ask permission.  They should come and speak to me, the same way I talk to the bosses of other places before I go there.

   11.I need to be able to tell people where they can and can’t go in that country so they don’t go to dangerous places and get hurt, or disturb the spirits and then we get hurt.

   The Country Covered by E08/2190

   1 [12][4].    There are a hell of a lot of significant sites and places in these Licences.  Yuntu Thalu – This is a dangerous one.  A thalu is like an increase site – you go there to ask the country to give you things.  There are thalu sites for food, like kangaroos or goannas, and bush medicine, things that you need from your country.

   [4] Note that the paragraphs of the statement re-number from (1)1 as of the heading ‘The Country Covered by E08/2190’ – as such, the numbers in square brackets have been added to the statement as extracted in this determination for ease of reference to sequentially numbered paragraphs in this determination.

   2 [13].When things are getting dry and the kangaroos are getting skinny, and you had to go a long long way to get a kangaroo, the old people would decide to go and make the country good again – fat kangaroos – and all the animals would come back, and trees and water and everything.  They would pick out about three or four blokes, good boomerang throwers, and send them to a camp next to where new Yalleen is now, and then down the river to the Yuntuthalu.  Its [sic] sort of a mound and it has got all these white and black pebbles on top. Alongside that mound, about four or five metres away there is a big big gum tree.  These three guys have got to come down the river to the Thalu, they have to say in language that the country is getting dry. That’s how they pray for things like that.  They want water.  One man has got to throw a boomerang at that mound and it will bounce away.  Then he will name all the rivers.  Another bloke will throw a boomerang and it might bounce away in a different direction.  He will do the same thing – name other places.  They all go through that stage.  One bloke might throw his boomerang at that mound and it might bounce away and hit the tree.  If that happens, the others start crying straightaway.  They will cry for that bloke now, because they know he will die.  They go back to the camp and the one whose boomerang hit the tree comes behind.  Some people back at the camp know what is coming.  That bloke, he might be married with children, from then on he has to camp a long way away from everyone else including his wife and children.  Because, before that rain comes, the lightning comes first and the lightning is going to kill him.  That’s why the others are crying for him.  Over the years numerous people whose boomerangs have hit that tree have been struck by lightning.  Only those men who are skilful with boomerangs should try to work that Thalu.

   3 [14].No one else can go there except us Kuruma people because the thalu belongs to the people who own the country.  If other people go there, they get sick and they could die.

   4 [15].There are some places in this area (Licence E08/2190) that no one goes to – only initiated men go there.  There are old men’s ceremonial grounds and initiation places in that Licence – the Law ground is called Buggumada.  They haven’t been used for a while but they still hold the same significance and are powerful. . [sic] I know all the men’s places in there but I can’t talk about them too much or say where they are.  No women are allowed to go there.  In the old days, she would get killed if she went there.  If any women or whitefellas went there it would make us feel really bad.  It’s against our laws and traditions for any one apart from initiated Kuruma men to go there.  Anyone else could get harmed by the country.  Women shouldn’t go there and any strangers to the country need us to go with them so that we can talk to the country, and so they are under our protection.  I have special duties and obligations about these places.

   5 [16].It is my duty to look after those men’s places in E47/2040[5] [sic].  If other people do the wrong thing, it all comes back to me and I’ll get into big trouble.  This is my responsibility as a senior initiated Kuruma man.

   [5] I note that in all other respects, this statement refers to the relevant tenement numbers of E08/2191 and E08/2190 so take this reference to E47/2040 to be a typographical error

   6 [17].There are probable other burials along the river and in the hills, because this is where my people lived.  Our laws tell us that burials should not be disturbed at all.

   7 [18].There is a very sacred waterway that flows through both of the Licences – the Robe River.  It is registered with the DIA (Site ID 21526).  We call the Robe River Jajiwara and it is the most important waterway for the KM native title claim.  It is a big river, it comes all the way from the Hamersley Ranges and it is sacred to us.  I know exactly where it comes from.  I’ve been up there many times from when I was a little kid and I go back when I can.  The river is so important to us that we are known as Jajiwara Kuruma people.

   8 [19].We are not happy about what is happening to the Robe River.  Some people (mining companies) are going too close to the river.  If there would be exploration it would not be good.  All along the Robe River, all the warlu (spirit snakes that live in permanent pools) are very friendly, but with things happening in the river, like blasting or drilling, they may get upset.  If they get upset, they could move on and then the permanent pool where they were would dry up.  But the Robe River is also one big snake called bardimindi, he is all along the river. Bardimindi is very important to us, and we don’t want to disturb him.

   9 [20].We make rain at Puthulanya up in the Hamersley Range where the river comes from – it’s the main place where we’ve got a thalu to make rain. I’ve been there and I’ve seen it happen.  Puthulanya is not in the Licences but it is connected to the river.  Anything that happens to the river in the Licences will affect it in other areas, like where the rain thalu is.  This is because the Robe River is one big snake – Bardimindi.  If he is upset in one place, this could upset the river all the way along.  Warlu can make big rains if they get angry, and floods affect the whole river and could harm people.  When we make rain at Puthulanya, we name all the rivers, like for example the Robe River and the Kumina Creek.

   10 [21].There is another thalu just downstream about 1.5km.  It is a Rock Python Thalu. There are black rocks there the size of three houses put together.  It is right in the middle of the Robe River next to a pool called Yirramarda.  The rock python is like is a carpet snake and in the old days they used to eat them.

   The Country Covered by E08/2191

   11 [22].The most important thing to us in this Licence (E08/2191) again is the Jajiwara.  We are Jajiwara Kuruma people and we have always lived along the river.  There are important ceremonial grounds, burial places, birth places, permanent water holes and artefact scatters along the river in this Licence.  There are 3 registered Aboriginal sites and 31 other heritage places with the DIA in this Licence.

   12 [23].Another main place just a few hundred metres from this licence is Deepdale Station, and there is a burial (a graveyard) there as well.

   13 [24].My father and his brother were born at Deepdale.  The Aboriginal name of the place is Thallaratna.  There is a big pool there and they were given it because they were born right there.

   14 [25].Churdy pool is an important place to us.  It’s an old station (Wirrawarra) where lots of old people were born and reared up.  Old Marshal Bobby grew up there.  It is a good place to stop and camp.  There is a hill next to Churdy Pool that is a thalu.  The hill was destroyed by mining in the early 1970s, but there are still important engravings on that hill.  The engravings are about the thalu, and it is still a sacred place.

   15 [26].People go fishing in the Licence area as well.  Ngararu pool is where they fish, which means it’s like a grandchild.  I go there now. It’s on the old public road that goes to old Yalleen, where the old people used to go up the creek to Yalla.

   16 [27].There is another old ceremonial ground in this Licence as well – where only initiated men can go there, and like the other is [sic] still is powerful and holds the same significance.  It is the Thallaratna (Deepdale) Law ground and it is in this licence (E08/2191).

   17 [28].I know all the men’s places in there but because of our laws, I can’t talk about them too much or say where they are.  No women are allowed to go there.  In the old days, a woman would get killed if she went there.  If any women, or whitefellas went there it would make us feel really bad.  It’s against our laws and traditions for anyone apart from initiated Kuruma men to go there.  Anyone else could get harmed by the country.  Women shouldn’t go there and any strangers to the country need us to go with them so that we can talk to the country, and so they are under our protection.  I have special duties and obligations about these places.

   18 [29].It is my duty to look after those men’s places in E08/2191.  If other people do the wrong thing, it all comes back to me and I’ll get into big trouble.  This is my responsibility as a senior initiated Kuruma man.

   Going out on Country

   19 [30].I go to this area within the Licences whenever I can.  Other Kuruma people go out as much as they can too.  It belongs to us and our old people.  We go back there, tell stories, and it reminds us who we are.  We make friends to the spirits that are still there and keep them company, let them know we still care about the country and are still looking after it.

   20 [31].The permanent water, the river and the hills are the most important sacred things to us, so we like to go there whenever we can.  There is everything there that we need.  It has never happened yet that there are things aren’t there [sic] and I think that is because we still look after our country.

   21 [32].Most of all, Kuruma people have a feeling of belonging when we are in those places (the country inside the Licences).  I first stop at that cemetery and talk for about an hour to my old people buried there.  Then we camp along the river where there is water and snakewood trees [sic].  Then anywhere along the river I stop and camp.  We hunt, fish, collect other bush tucker and medicines and tell stories.

   Consequences of Disturbing Country and Sites

   22 [33].Rules about our country are very serious.  I’ve been having a lot of trouble with those rules.  A lot of Aboriginal people who work out on our country in mining, they get sick.  When they go back to their country they get sick and I get in trouble.  Me and my big brother, we were out at one mine in our country and now he’s gone.  That’s one man and I keep wondering, will I lose my mother?  A lot of white people don’t think about these things but us people, we know what can happen: we can lose a lot of our mob.  But the mining company doesn’t think about that.

   23 [34].It is risky for a company to come and explore in these areas.  Elsewhere in my country there are all these mesas that used to have names, every one of them.  My father used to name every one of those mesas all the way along.  Now they are destroyed, got no names and they are not pretty.  That is what mining has done and it has been dangerous.  I have lost a lot of my old people over this kind of thing.  I don’t want those things to happen to the country in the Licences.

   24 [35].We don’t know this company and we want them to come and speak with us, prove that they are going to do the right thing in this place.  They have to come to the table and then we can set the rules, tell them where they can and can’t go.

   25 [36].Based on my knowledge as a Kuruma elder, and on our laws and traditions, I believe that the grant of the Licences involves a real chance of interference with places of particular significance to us.

1. Annexed to the statements of Ms James and Mr Lockyer are topographical maps describing the boundary coordinates of the following sites:

   ·   G. Lockyer Yinta (Nirrara);

   ·   Yuntu Thalu;

   ·   Buggumadda (Bugumarra / Pakumarra) Law Ground;

   ·   Deepdale Station and Burial; and

   ·   Thalaratna (Thallaratna) Law Ground.

Tribunal mapping indicates that these sites or the boundaries of these sites are either wholly within or partially overlapping the area of the proposed licences available for grant.

1. The evidence of Ms James and Mr Lockyer, including the maps annexed to each statement, is uncontested and I accept it.   Mr Lockyer is a named applicant to the native title party’s claim and a senior initiated law man, and the native title party’s claim application notes Ms James as one of the persons claiming to hold native title.  I accept that both Ms James and Mr Lockyer have authority to speak on behalf of the native title party.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to them are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’) at [23]. Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [23]. The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 concerning conditions deemed to affect exploration licences, and s 20(5) relating to exploration activity on pastoral leasehold areas, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party regarding the area of land concerned. The Government party also points to the fact that no Aboriginal communities are situated on the proposed licences, although Government party documentation and Tribunal mapping indicates that the community of Yatharla is located within six kilometres of the tenements. I note the Tribunal’s previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to s 237 assessment (see for example Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:

   ‘The section is obviously not designed to protect Aboriginal interests.  Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party.  Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal Reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.’

3. The evidence establishes that some exploration activity has occurred in the area of E08/2191 between 1994 and 2005, and pastoral leases currently overlap the proposed licences by 95.3 per cent (E08/2190) and 46.3 per cent (E08/2191).  The same live mining lease (AML 70/248 or 248SA) overlaps the proposed licences by 70.0 per cent (E08/2190) and 46.4 per cent (E08/2191) and a live exploration licence (E08/1685) overlaps E08/2190 by 4.5 per cent.  I accept that these activities will already have interfered to some extent with any community or social activities carried out by the native title party on the area of the proposed licences, although part of these areas are not available for grant (as outlined in [25]).  Moreover, the native title party’s evidence in relation to community or social activities must be considered in light of the fact that the grant of the proposed licenses will be subject to both the live tenements and the pending miscellaneous licence (if granted), so that the area affected by the proposed licences is likely to be further reduced.

4. The evidence of Ms James in relation to community or social activities establishes the following:

   ·   She and other Kuruma people visit the area of the proposed licences to collect traditional medicine (at paras 12, 35);

   ·   Kuruma people camp along the river and near permanent pools on the proposed licences and engage in activities such as fishing, hunting, and gathering bush tucker (at paras 34-35);

   ·   Kuruma people use the minjarra tree, which grows along the river, in a ritual for disciplining children (at paras 36); and

   ·   She and other Kuruma people take children to the area of the proposed licences to teach them about country (at paras 37).

5. The evidence of Mr Lockyer in relation to community or social activities establishes the following:

   ·   As a senior initiated law man he looks after sites on the area of the proposed licences (at paras 16, 29);

   ·   He and other Kuruma people visit the area of the proposed licences on various occasions to tell stories, look after country, camp along the river, hunt, fish, and collect bush tucker and traditional medicines (at paras 30-32); and

   ·   He visits burial places on the proposed licences and spends time talking to the people buried there (at para 32);

Mr Lockyer’s statement also refers (at paras 13, 15 and 27) to ceremonies associated with particular sites on the proposed licences.  However, it is unclear from the evidence whether these activities are still carried on.

1. There are a number of difficulties with the native title party’s evidence in relation to community and social activities.  First, a number of the places that Ms James identifies as ‘good camping areas,’ such as Pannawonica Hill, Ngalooin Pool and Churdy Pool, appear from Tribunal mapping to be to the east of the proposed licences.  Second, while I accept that it appears that members of the native title party do visit the areas of the proposed licences, there is no indication in the native title party’s evidence about the frequency of such visits.  Third, though many of the activities described by Ms James and Mr Lockyer are associated with the Robe River, there is no evidence that the activities are connected in any special way to those parts of the river that flow through available portions of the proposed licences.  Given the total area of the Kuruma Marthudunera (Combined) claim area is approximately 15,717 square kilometres, I consider that the size of the proposed licence areas in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.  I accept that the community of Yatharla is in the vicinity of the tenements, but there is no evidence from the native title party that members of that community frequently visit the proposed licences.  The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration was granted, as significant ground disturbing exploration will only occur at any one time over a relatively small area.  

2. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way.  I believe this is such a case and I am unable to find that there is a real chance or risk that the proposed exploration activity in and around these proposed licences will directly interfere with the community or social activities of the native title party, as they have been outlined by the native title party, in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [27] and [28], there are 15 registered sites and 32 other heritage places within E08/2190 and 3 registered sites and 31 other heritage places within E08/2191. Not all of these are located within the portion of the licence which is available for grant (as outlined in para [29]). However, the presence of registered and other DIA sites in the area does not mean that there may not be other sites or areas of particular significance to the native title party over the area available to the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The intention of the AHA is to protect all Aboriginal sites, whether on the Register or not.

2. The Government party relies on relevant aspects of its regulatory regime, including ss 5, 17 and 63 of the AHA, to contend that there is not likely to be interference with sites of significance. In relation to intentions, the grantee party in this matter has indicated its reliance on the State’s contentions and evidence. The State’s contentions are not of a great deal of assistance in understanding the intentions of the grantee party in relation to the proposed licence. The Government party contentions state (at para 12):

   ‘A predictive assessment allows the Tribunal to receive evidence of a grantee party’s intention where that evidence is adduced.  In the absence of any intention, the Tribunal would be at liberty to assume that a grantee party will fully exercise the rights conferred by the tenement.  This assumption does not necessarily result in a finding that there is a likelihood of interference or major disturbance as the legal regime may require the grantee party to operate in a manner designated to minimise the risk of interference or major disturbance: see Silver v NT at [30]-[32].’

I accept the State’s argument that the absence of evidence of a grantee party’s intention does not automatically lead me to a finding that sites of particular significance will be subject to  interference.  However, in the absence of any particular evidence from the grantee party as to how they will fully exercise their rights, the Government party (at para 24) argues that the Tribunal may consider evidence as to what extent the grantee party will go in ensuring that the risk of interference is minimised and refer to Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’), stating that in that determination there appeared to be a genuine desire on the part of the grantee party to ensure that any exploration activities be conducted in a culturally sensitive manner.  In the present matter, there is no information from the grantee party in relation to how they will exercise their exploration activities, either generally (apart from through the Government party contentions), or in relation to sites or areas of significance or of particular significance to the native title party.

1. In Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Hon C J Sumner indicated there was no evidence from the grantee party as to site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. This is similar to the present matter, where there are no statements as to the grantee party’s willingness to consult with the native title party to ensure their views are taken into account if there is exploration in the area.

2. In Ryder, the native title party suggested there were a number of sites on the proposed licence and that these sites were not on the DIA register. In that matter, the grantee party provided statements in its contentions as to its willingness to avoid those sites, and to act in accordance with the AHA - it was determined that there was not likely to be a real risk of interference with sites of particular significance. In the present matter, apart from the Government party contentions and the signed and executed RSHA on the part of the grantee party, there is nothing before the Tribunal to identify the likely extent of the grantee party’s future activities on the proposed licence area. As the grantee party has not provided any evidence of the type of activity it intends to carry out over the area of the proposed licences, I must assume that the grantee party will fully exercise its rights under the Mining Act: Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239 at [34]-[35]). I note the Statutory Declaration of the grantee party dated 9 September 2010 whereby the grantee party executed and offered to enter into a RSHA with the native title party, from which I can infer that the grantee party is aware of its responsibilities. However, if the Government party wishes the Tribunal to consider evidence of what the grantee party will do, it would be of assistance if evidence was lead to that effect, as was the case in Silver and other matters which have come before the Tribunal.

3. The Government party submissions in the present matter rely on the conditions and endorsements it will impose on the grantee party to protect areas or sites of significance (at paras 4(c), 5(a)-(e), 6 and 22) and also relies on the effectiveness of the AHA and DMP guidelines to protect Aboriginal sites (at para 21). The Government party state (at para 22) that their proposed conditions add weight ‘to the effectiveness of the existing regulatory regime and makes interference with sites less likely to occur. It is therefore relevant to the Tribunal’s task of weighing up the nature and extent of sites and whether the government party’s regulatory regime is sufficient to make interference with them unlikely’ and refer to Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1 in support.

4. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has often found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’) at [81]-[91]). The Tribunal must consider, based on the facts of a particular case and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance which are found to exist. In ButcherCherel, the Tribunal found that although there were sites of particular significance in the area of the proposed licence, and even in the absence of an RSHA, AHA protection was sufficient because of the evidence of the intentions of the grantee party to protect any sites of significance and consult with the native title party before ground disturbing work was undertaken.  In the present matter, while the grantee party has executed an RSHA in favour of the native title party, that has not yet been accepted by the native title party, and no further intentions have been provided from the grantee party.  In addition, I note that the proposed RSHA allows the grantee party to carry out low impact exploration in the proposed licence area available for grant without conducting a heritage survey on any area that is not recorded as a Protected Area under the Heritage Act, provided they use their best endeavours to give the native title party an outline of the nature, location and timing of those activities. While the native title party can then raise any concerns with the grantee party, this would not appear to be as effective for site protection as are the normal negotiations available to the native title party under s 31 of the Act.

5. The evidence of Ms Elaine James and Mr Mark Lockyer (as noted in brackets below as EJ and ML respectively) identifies the following sites:

   ·   The Robe River (Jajiwara or Gadjiwura), which is recorded on the DIA Register as an ‘other heritage place’ (Site ID 21526, Information Assessed, Named Place, open access) and is noted as extremely significant to the native title party (EJ paras 23-29; ML paras 18-20, 22) – portions of the River are within the area available for grant;

   ·   An increase site (Yuntu Thalu) considered to be dangerous by the Kuruma people (ML paras 12-14) – this is within the area available for grant;

   ·   Bugumadda (Bugumarra / Pakumarra) law ground, a site used for male ceremonies and initiation (EJ paras 26-27; ML paras 15-16) – this is within the area available for grant;

   ·   Rock Python Thalu, an increase site situated on the Robe River (ML para 21) – it is not clear whether this site is within the area available for grant;

   ·   Deepdale Station and Burial, which is a registered site (Site ID 6517, skeletal material/burial, closed access), described as a ‘main place’ and burial site close to E08/2191 (EJ para 31; ML para 23) – this site is within 100 metres of E08/2191 and its boundary overlaps the area available for grant;

   ·   Nirrara or G. Lockyer Yinta, a permanent pool belonging to a respected and now deceased Kuruma elder (EJ para 31) – portions of this site are within the area available for grant;

   ·   A men-only ceremonial ground (Thallaratna) which is also considered to be dangerous (EJ para 33, ML paras 27-28) – about 50 per cent of this site is within the area available for grant;

   ·   Numerous law grounds and ceremonial sites along the Robe River, including Jungarri, Duck Pool (or Yarramarda) and Kayiywarra (EJ para 26; ML para 22) – it is not clear whether these sites are within the area available for grant;

   ·   Churdy Pool, described as an ‘important place’ and the site of a thalu and engravings (ML para 25) – this is not within the proposed licences;

   ·   Birth and burial places along the Robe River (EJ paras 25, 27, 31; ML paras 17, 22)   – portions of the River are within the area available for grant;

   ·   Permanent pools that are purported to be the homes of warlu or spirit snakes (ML para 19) – it is not clear which of these sites are within the area available for grant (apart from Nirrara as referred to above); and

   ·   Artefact scatters, rock shelters and permanent water holes along the Robe River (EJ para 25; ML para 22) – it is not clear which of these sites are within the area available for grant.

6. The evidence of Ms James and Mr Lockyer establishes that the Robe River (Jajiwara) is a particularly significant water course according to the traditions of the native title party.  The river is not only the site of numerous law grounds, ceremonial areas, burial places and permanent pool within the proposed licences, but it also connects these areas to other sites of significance within the broader claim area, such as Pannawonica Hill (Parlapuuni), Puthulanya and Bungaroo Creek.  The river is so central to the community and spiritual life of the native title party that it uses the name of the river to identify itself (that is, as the Jajiwara Kuruma People).  Parts of the river run through the available portions of both licences and have been marked as heritage sites by the DIA.  I am satisfied that the Robe River (Jajiwara) is a site of particular significance to the native title party.  This finding is consistent with the decision of Deputy President Sumner in Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Brockman Iron Pty Ltd [2010] NNTTA 106 (‘Brockman’).  The tenements in that matter were, approximately, 8-20 kilometres north east of the tenements in this present determination, and all tenements lay within the general contour of the Robe River and within the area of a large number of DIA recorded sites.

1. Although it is unclear whether the ceremony Mr Lockyer describes in relation to Yuntu Thalu is still practised, I am satisfied that where it is practiced is also a site of particular significance.  It is on the available portion of proposed licence E08/2190.  The story that Mr Lockyer relates about the site, its association with death by supernatural forces and the fact that it is acknowledged to be a dangerous place suggests that the site has particular importance for the native title party.  I accept that any intrusion on the site by outsiders would interfere with the spiritual and cultural responsibilities of members of the native title party.  I also find that the male-only law grounds described by Ms James and Mr Lockyer (namely, Buggumadda and Thallaratna) are sites of particular significance, despite Mr Lockyer’s evidence that they are not currently in use.  Both of these sites are partly on the available portion of the proposed licences (E08/2190 for Buggumadda and E08/2191 for Thallaratna Law Ground).  As Mr Lockyer states in his evidence, the sites still have the same power and significance for the native title party and he has special duties and obligations in respect of these places.  I accept that it would cause particular distress to the native title party for women or uninitiated men to access those ceremonial grounds, and it is clear from this that they are sites of particular significance to the native title party.

2. Rock Python Thalu, which Mr Lockyer mentions in relation to E08/2190, may refer to one of two registered sites, namely Rock Python Stone (Site ID 7047, mythological, closed access) and/or Robe River Thunder Talu (Site ID 7048, ceremonial, man-made structure, artefacts/scatter, open access).  The only description that Mr Lockyer provides is that the site is 1.5 km downstream and situated next to a pool called Yirramarda.  While site 7048 is on the available portion of E08/2190, site 7047 is not.  Regardless of the exact identity or  precise location, it is my view that Mr Lockyer has not provided the Tribunal with sufficient detail about this site’s significance to support a finding that it is of more than ordinary significance.  Similarly, I do not consider that Ms James has provided the Tribunal with sufficient evidence about the particular significance of Nirrara, although I accept it is an important site for the native title party due to its association with the birthplace of a respected elder.   

3. Mr Lockyer also refers to Churdy Pool as an important place.  He has also provided evidence that the hill next to Churdy Pool was destroyed by mining in the early 1970s.  However, I consider that Mr Lockyer’s statement provides too little detail to establish the significance of the site.  Tribunal mapping indicates that Churdy Pool is some distance to the east of E08/2190.  Mr Lockyer identifies Deepdale Station as another ‘main place.’  I accept that Deepdale Station is a site of particular significance due to its special use as a burial place.  The grantee party is on notice about the existence of all of the sites which exist on the DIA Register (and which are outlined in [27]-[28] and [52] of this determination) and I am satisfied that the regulatory regime may be sufficient to prevent interference with these sites where they are clearly identified.

4. Of greater force in this respect is the evidence of Ms James and Mr Lockyer about the various burial sites scattered throughout the proposed licences, especially those along the Robe River. Although the burial sites have not specifically been identified, the evidence of Ms James and Mr Lockyer is uncontested and I am satisfied that a number of unidentified burial sites exist throughout the proposed licences given the level of occupation by previous generations of Kuruma people in those areas. I also accept the evidence of Ms James and Mr Lockyer that these sites are ones of particular significance in the traditions of the native title party. As their precise location has not yet been established, apart from stating that they are along the Robe River, I am satisfied that there is a real chance of interference with these sites unless there is adequate consultation with the native title party as contemplated by s 31 of the Act. A similar statement could be made in relation to the as yet identified permanent pools/water holes which Mr Lockyer and Ms James state are of particular significance, are situated throughout the proposed licences, and which are intimately connected to the stories and myths associated with the Robe River.

5. The Government party contends that the distribution of registered sites in and around the proposed licences should be viewed in comparison with the land actually available for grant.  While it is true that a majority of registered sites and other heritage places situated within the original applications fall outside the area available for grant, I am satisfied on the basis of the evidence provided by Ms James and Mr Lockyer and with the benefit of DIA records and Tribunal mapping (which shows a rich diversity of sites in the area and which shows the Robe River flowing through the areas available for grant), that there are sites of particular significance to the native title party which are situated either on or close to the area available for grant of the proposed licences, and which have not necessarily been identified or registered with the DIA.  That there is such a large number of registered sites and other heritage places within the vicinity of the proposed licences is only reinforced by findings made by Deputy President Sumner in Brockman about the overarching significance of the Robe River within the traditions of the native title party, and suggests there is a real risk of interference of these sites of particular significance unless negotiations take place under s 31 of the Act.

6. Similar to the Tribunal’s finding in Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35, the existence of many registered sites in the vicinity of the proposed licence area, along with areas outlined in the native title party’s statements, collaborates the importance of the area to the native title party, which contains sites of particular significance. It appears the area available for grant in the proposed licence falls into the territory of site rich areas, such that the presumption of regularity is insufficient to preclude a real risk of interference with these sites of particular significance without the negotiation process available in s 31 of the Act.

7. In my view, the evidence establishes the relevant areas to be ‘site rich’.  Consistent with previous Tribunal determinations, this provides sufficient basis for a finding that, despite the regulatory regime in place, interference with sites of particular significance is likely.

8. Taking all of these factors into account, I am of the opinion that this is a case where the normal negotiations mandated by s 31 of the Act should take place.

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

1. No findings in relation to this limb of s 237 are necessary as no specific evidence was submitted by the native title party in respect of it and a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).

Determination

1. The determination of the Tribunal is that the acts, namely the grant of exploration licences E08/2190 and E08/2191 to Iron Duyfken Pty Ltd, are not acts attracting the expedited procedure.

Helen Shurven
Member
6 January 2012