Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd, [2012] NNTTA 59 (12 June 2012)

Application No: WO11/358, WO11/753

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Merle Forrest and Others on behalf of Central East Goldfields People (WC99/30) (native title party)

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The State of Western Australia (Government party)

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Aruma Exploration Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  12 June 2012

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – expedited procedure not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Vegetation) Regulations 2004 (WA)

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (8 May 2012), Daniel O’Dea
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales (2001) 166 FLR 46; [2001] NNTTA 104 (24 September 2001), John Sosso
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50 (9 May 2012), Daniel O’Dea
Harrington-Smithon behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (24 February 2012), Helen Shurven
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (24 February 2011), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Little v Western Australia [2001] FCA 1706
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory [2002] NNTTA 212 (27 September 2002), John Sosso
Parker on behalf of the Martu Idja Banyjima People v 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 v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (1 February 2002), John Sosso
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 (8 March 2002), Hon C J Sumner
Western Desert Lands AboriginalCorporation v Western Australia and Another [2009] NNTTA 49 (27 May 2009), Hon C J Sumner
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (23 February 2012), Daniel O’Dea

Representative of the
native title party: Mr Dante Mavec, Goldfields Land and Sea Council

Representatives of the     Mr Griff Ranson, State Solicitor’s Office
Government party:         Ms Alicia Warren, State Solicitor’s Office
  Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the Mr Roy Burton, Austwide Mining Title Management Pty Ltd
grantee party: Ms Clair Hornsby, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

On 1 December 2010 and 9 March 2011 respectively, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E28/2116 and E28/2127 (‘the proposed licences’, ‘tenement areas’) to Aruma Exploration Pty Ltd (‘the grantee party’) and included in each notice a statement that it considered the grant attracted the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are located in the City of Kalgoorlie-Boulder and comprise areas of:
·E28/2116 – 29.5 square kilometres, 75 kilometres east of Kalgoorlie; and
·E28/2127 – 2.95 square kilometres, 69 kilometres east of Kalgoorlie.

The proposed licences are situated entirely within the registered native title claim of the Central East Goldfields People (WC99/30 – registered from 4 October 1999). No other registered native title claims or determination areas overlap the proposed licences.

On 30 March 2011, Merle Forrest and others on behalf of the Central East Goldfields People (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of E28/2116 (designated as WO11/358).
On 12 April 2011, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry into the application. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date (1 April 2011) 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.
At a preliminary conference on 3 May 2011, the grantee party stated that it had offered the Regional Standard Heritage Agreement and did not understand why the objection remained on foot. The native title party notified the grantee party that there was an issue with the lake covering the proposed licences and had sent a letter seeking feedback from the grantee party. At a status conference on 24 June 2011, the grantee party acknowledged that parties had discussed the matter but was still unclear about the reason for the objection. At the status conference, the native title party stated that it would seek instructions and provide parties with an overview of the grounds for the objection. The matter was adjourned to a listing hearing on 8 September.
The Government party lodged contentions and evidence by 10 August 2011. On 28 August 2012, the native title party lodged a Statement of Contentions and the affidavits of Daniel Steven Sinclair and Dante Joseph Mavec, as well as a map of E28/2116. On 5 September 2011, the grantee party lodged a Statement of Contentions, along with two documents it sought to introduce as evidence concerning the significance of the lake. The native title party lodged contentions in reply to the grantee party’s contentions on 6 September 2011.
At the Listing Hearing, the grantee party requested a further period of time to gather evidence about the lake and lodge further contentions, on the understanding that the matter would proceed to inquiry. Directions were set accordingly, accommodating the native title party’s request to respond to any material filed by the grantee party.
On 5 July 2011, the native title party made another expedited procedure objection application to the Tribunal, this time in respect of E28/2127 (designated as WO11/753). At a preliminary conference on 30 August 2011, the grantee party requested that the matter proceed to inquiry. Government party contentions and evidence were lodged by 18 October 2011. On 17 October 2011, the native title party requested that, given the similarity of the matters in issue between the parties, the two objections be dealt with concurrently. On 27 October 2011, the grantee party requested an extension of time to obtain evidence and file contentions. On 31 October 2011, Deputy President Sumner directed that the objections be heard together and adjourned the matter to a directions hearing to determine the further conduct of the inquiry. At the directions hearing on 4 November 2011, further directions were made for the provision of further contentions from both the native title party and the grantee party.
On 7 November 2011, the native title party lodged a Statement of Contentions in respect of WO11/753 as well as the affidavit of Mr Sinclair, a map of E28/2127 and the lake prepared by the Goldfields Land and Sea Council and a search of the Aboriginal Sites Database maintained by the Department of Indigenous Affairs (‘DIA’) showing the lodgement of a heritage application in respect of the lake. On 28 November 2011, the grantee party lodged a ‘statement’ containing a mixture of contentions, documentary evidence and unsworn statements.
On 9 December 2011, the native title party requested further time to seek instructions and respond to the allegations made by the grantee party. On 16 December 2011, I was appointed member for the purposes of conducting the inquiry into the applications and I convened a further directions hearing on 10 February 2012. At the directions hearing, I addressed the shortcomings of the grantee party’s statement and set directions for the filing of further contentions and evidence by the grantee party, with the opportunity for the other parties to respond. The grantee party lodged additional submissions and the affidavits of Peter Bernard Schwann, Robert A.C. Jones and Andrew John Ford on 1 March 2012. The grantee party lodged a further affidavit made by Peter Bernard Schwann on 16 March 2012. The native title party lodged further contentions in reply, as well as the affidavits of Thelma O’Loughlin, Michael Tucker, Dr William Kruse and a further affidavit made by Dante Joseph Mavec on 16 March 2012, and lodged contentions in response to Mr Schwann’s affidavit on 27 March 2012. After requesting further time to respond, the Government party lodged contentions in reply on 30 March 2012. After seeking leave, the native title party lodged further contentions in reply to Government party contentions on 2 April 2012.
For the sake of clarity, I set out the submissions in chronological order according to the date on which they were filed with the Tribunal:
·Government party Statement of Contentions (WO11/358) filed 10 August 2011 (‘GVP 358’)
·Native title party Contentions (WO11/358) filed 28 August 2011 (‘NTP 358’);
·Grantee party Statement of Contentions (WO11/358) filed 5 September 2011 (‘GP 358’);
·Native title party Contentions in Reply (WO11/358) filed 6 September 2011 (‘NTP Reply 358’);
·Government party Statement of Contentions (WO11/753) filed 18 October 2011 (‘GVP 753’);
·Native title party Contentions (WO11/753) filed 7 November 2011 (‘NTP 753’);
·Grantee party Statement (WO11/358) filed 28 November 2011 (‘GP Statement’);
·Native title party Further Contentions in Reply filed 16 March 2012 (‘NTP Further Contentions’);
·Native title party Further Contentions in Response to Grantee Party’s Further Evidence filed 27 March 2012 (‘NTP Response to GP’);
·Government party Statement of Contentions in Response filed 30 March 2012 (‘GVP Response’); and
·Native title party’s Contentions in Reply to Government Party’s Contentions in Reply filed 2 April 2012 (‘NTP Reply to GVP’).
I have expressed to parties my dissatisfaction with the drawn out nature of this inquiry. To a degree, contentions received from parties have been repetitive and not entirely helpful. Nevertheless, while the Tribunal is under a statutory obligation to carry out its functions in an economical and prompt manner, it is my view that procedural fairness dictated that parties be given a reasonable opportunity to respond to the material submitted and the allegations made in the inquiry. I believe that object was achieved. While it is regrettable that, on occasion, parties were unable to file submissions within time, accommodations were made to ensure that no party was prejudiced as a result of the delay. In the circumstances, I am satisfied that the objections can be adequately determined on the papers (s 151(2) of the Act).

Legal principles

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.

In Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (8 March 2002) (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
With respect to issues arising under s 237(b), I also 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 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18 (1 February 2002), John Sosso.

Evidence in relation to the proposed acts

Government party documentation establishes the underlying land tenure of the entirety of the proposed licences is the Hampton Hill Pastoral Lease 3114/1214. Government party documentation also indicates that there are two fence lines located within E28/2116 and three tracks and two fence lines located within E28/2127. Mapping provided by the Tribunal’s geospatial unit locates E28/2116 on the eastern arm of Lake Yindarlgooda and E28/2127 approximately 5 kilometres west along the northern shoreline.
There are no Aboriginal communities within the vicinity of the proposed licence areas.
DIA documentation provided by the Government party indicates that are no registered sites or other heritage places under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence areas. However, a more recent search of the Aboriginal Sites Database provided by the native title party establishes that both of the proposed licences now overlap an ‘Other Heritage Place,’ being Lake Yindarlgooda, Mammu Tjukurrpa (Site ID 30602, mythological, open access, no restrictions), which reflects a recent application for registration of the lake under the AHA.
Government party Quick Appraisal documentation also establishes in respect of proposed licence:
·E28/2116 – one live prospecting licence overlapping at 1.7 per cent and 26 previously granted tenements, including one dredging lease granted in 1904 and forfeited in 1905 overlapping at 2.7 per cent, 16 exploration licences granted and surrendered, forfeited or expired between 1991 and 2010 overlapping between 0.8 and 80 per cent, eight mineral claims granted and surrendered between 1970 and 1971 overlapping between 1.2 and 4.1 per cent, and one mineral claim active between March and December 1983 overlapping at 0.1 per cent; and
·E28/2127 – seven previously granted tenements, including five exploration licences granted and surrendered between 1994 and 2006 overlapping between 7.2 and 100 per cent, and two mineral claims granted and surrendered between 1970 and 1973 overlapping at 8.8 and 18.8 per cent.
Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (24 February 2011), Hon C J Sumner (‘Tarlpa’) at [11]-[12]) and two further conditions requiring the pastoral lessee to be notified of the grant or transfer of the proposed licences and of certain exploration activities (conditions 5-6).
The following draft Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licences if breached) are noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The contentions of the Government party (at para 5(d)) state that:
The duly authorised agent for the grantee party has signed a statutory declaration declaring that the grantee party has executed and sent a copy of the Regional Standard Heritage Agreement (‘RSHA’) to the objectors to execute should they accept its terms and conditions. A copy of the statutory declaration is annexed and marked attachment ‘B’.
Government party contentions (at para 5(e)) also 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 Central East Goldfields People, the applicants in Federal Court application no. WAD70 of 1998 (WC99/30), such request being sent by pre-paid post to reach the Licensee’s address c/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central East Goldfields People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Goldfields Land and Sea Council.

Native title party contentions and evidence

In support of its submissions, the native title party provide the affidavits of:
·Daniel Steven Sinclair sworn 6 December 2011 (‘DSS Affidavit’);
·Dante Joseph Mavec sworn 24 August 2011 (‘DM Affidavit 1’);
·Dante Joseph Mavec affirmed 16 March 2011 (‘DM Affidavit 2’),
·Michael David Tucker sworn 14 December 2011 (‘MDV Affidavit’);
·Thelma Mary O’Loughlin sworn 15 December 2011 (‘TMO Affidavit’); and
·William Henry Kruse affirmed 10 February 2012 (‘WHK Affidavit’).

In addition to the affidavit evidence, the native title party also provide maps of the proposed licences, a search of the Aboriginal Sites Database indicating the lodgement of a heritage application in respect of Lake Yindarlgooda and a high resolution aerial imagery map of E28/2127.

The affidavit of Mr Sinclair is made as follows:
I, Daniel Steven Sinclair, of 38 Killington Crescent, Boulder, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Daniel Steven Sinclair. I am 42 years old.
2.I am a member of the Central East Goldfields native title claim and an applicant for the claim. I am a wati, an initiated man.
3.The country covered by the Central East Goldfields native title claim is my father’s country. He name was Don Sinclair, and he is an apical ancestor for the Central East Goldfields claim. He was from Karonie, which is on the transcontinental railway line just south of Lake Yindarlgooda. My father also worked at Hampton Hill Station, which surrounds parts of Lake Yindarlgooda. These places are in the Central East Goldfields claim area.
4.I also have rights and responsibilities to country in the Spinifex lands through tjamu (grandfather). His name was Jingi or Roy Sinclair and he called me Tjilpi Tjilpi, which means old man. Tjilpi Tjilpi is my Aboriginal name. My skin group is panaka.
5.I went through the Law (initiation) first time in Tjuntjunjara in 1988 or 1989. Second time I went through at Kiwirrkura and Tjuntjunjara. When I went through the Law I was taught the stories by the wati tjilpi (old initiated men). They showed me the sacred things, the minma (dance), the Tjukurrpa (Dreaming stories) – the culture.
6.Tjukurrpa is our history, connection stories, our Aboriginal Law. The Law is minmil (sacred). The Law was given to us by our ancestors, the old people, and in the Tjukurrpa. We have to give to Law to our kids. Tjukurrpa happened before white men came to this land. Tjukurrpa (ancestors from the Dreaming) always been here, they roamed this area, they made all the lakes and the hills. The stories of the Tjukurrpa come from the animals and they made things. When we learn about Tjukurrpa the old people teach us what we have to do, where in the country the stories start and stop.
7.It is my job to look after this country, including Lake Yindarlgooda. Other families in my claim group, like the Graham and Barnes families, ask me to talk for country and to look after country because I am wati. I also have to look after the Tjukurrpa places for other wati from the desert, like Dinny Smith and Laurence Pennington.
8.If a Tjukurrpa place gets damaged our culture and history is disturbed. If the wrong people let a Tjukurrpa place get disturbed it bounces back on them and they get sick. We wati (initiated men), we have to keep the Tjukurrpa going. It is our job to keep the Tjukurrpa protected. We have to look after it so we can pass it on.
9.I know that the mining companies have done drilling on Lake Yindarlgooda before. That was all wrong. It should never have happened. White people have to follow our Law too. They need to leave that lake alone.
10.If I say drilling can go ahead on this lake I will get into trouble. It will be ngulu (dangerous). If one community hears that this place is getting disturbed and that I said yes to it then they will hear it all along the desert communities and they’ll know what’s going on and they might punish me. It is not a money issue, not a white man’s way, it is the Law we got to follow. We’ve got to say no.
Lake Yindarlgooda
11.I’ve been to the area around the Lake Yindarlgooda many times with my family for hunting, camping and to learn and teach bush skills with my family. We have to be careful though because that area is mammu country. I can sense that the mammu is around, so we have to light a big fire to warn him we’re around and show respect to him.
12.Danny Graham, Dinny Smith and I went out to the proposed tenement E28/2116 on the lake with an anthropologist Bill Kruse and we told him the story. Dinny Smith and I sang some of the Mammu Tjukurrpa song for him.
13.Lake Yindarlgooda is Mammu Tjukurrpa (Devil/Ghost Dreaming). The mammu came from Coolgardie. There are standing stones there and they are the mammu. Some mammu ate up Mt Monger people and ate up the old Spinifex mob too. The Wati Kutjarra [Two Men], Papa [Dingo] and other Dreamtime people, they stayed away from the mammu because he tried to eat them.
14.The mammu lived at Mt Monger but on their way to Mt Monger from Coolgardie, they travelled and hunted on Lake Yindarlgooda. When he’s travelling he’s looking for food, he eats wanga (insects) and people too. He hangs around the lake, it’s ngulu (dangerous) and when we come here we got to burn smoke to let the mammu know we are here. The tjilpi (old men) taught me it’s the whole lake that’s ngulu. Wati mammu he travelled on from Lake Yindarlgooda up through near Menzies.
15.Mammu Tjukurrpa and all Tjukurrpa show us the country. Wati and minma mammu (man and woman devil/ghost), while they travel around, they bump into other Dreamtime people like the Wati Kutjarra and the Seven Sisters and also Aboriginal desert people. Sometimes when mammu camp on their ngurra (their country), if they see buru (smoke) from people they kill and eat them. Mammu sometimes trick people – they pretend to be a person and they cry like they are sad so people come up, and then they catch them and eat them.
16.The Tjukurrpa story for Lake Yindarlgooda is an open one, for men, for boys, for ladies. Anangu [central desert Aboriginal people] and Wangkayi [goldfields Aboriginal people] can all see the dance and hear that song. It’s an ‘open door’, history and culture for all our mob.
17.When I was young, when I was a boy at Cundeelee, I heard the old men and ladies singing the mammu song, this Tjukurrpa. I also heard it at Tjuntjuntjara when I was older. They call it “mammu show”.
18.I gotta look after the Tjukurrpa and stop the mining companies making pirti (holes) in the Lake. Where they already done some holes that’s wrong way. We can’t say playa (good/ok) to pirty in this birlkili (flat or lake).
19.The lake is a Tjukurrpa, which we can’t let them drill. I don’t want Lake Yindarlgooda disturbed, they need to stay off the lake because it will wreck the Tjukurrpa and make people sick, tkilpi (old people) will get sick. If they drill, other wati will hear and I’ll get in trouble and people will be angry. They can drill up in the scrub but not on the lake, not from the sand ridge down to the lake either.
The affidavit of Ms O’Loughlin is made as follows:
I, Thelma Mary O’Loughlin, of 22 Sobota Street, Kalgoorlie, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Thelma Mary O’Loughlin. I am 62 years old.
2.I am a member of the Central East Goldfields native title claim. I am an elder and a senior woman. My skin group is Yiparrka.
3.The country covered by the Central East Goldfields native title claim is my country because it was my mother’s country and her mother’s country and my father was a wati, initiated at Dingo Rock (Karonie). Karonie is in the Central East Goldfields native title claim area.
4.I have rights and responsibilities in the country by this claim through my mother’s mother, Yampii who was from Karonie, south of Lake Yindarlgooda and is a named ancestor on the Central East Goldfields native title claim.
5.I travelled through the country covered by the Central East Goldfields native title claim with my parents for law business as a child. They taught me the Tjukurrpa dances and stories while we travelled through the country. They told me it is important to teach others these things and look after country.
6.On one of these trips in 1963 I was travelling with my father and a large group of people from all over such as Wiluna, Jigalong, and Warburton, to attend law business in Cundeelee. We camped on the east side of Lake Yindarlgooda and my father and other senior men and women present told us the Tjukurrpa associated with the Lake called Mammu Tjukurrpa.
7.The Mammu Tjukurrpa (is also called a dreaming track by white people), includes Lake Yindarlgooda, Mount Monger and Duncan Swamp near Hogan’s Hill.
8.I was told by my father and other senior people to stay away from the southern side of the Lake as it is pika ngulu (dangerous) and is for wati (initiated men) only. I can not [sic] discuss the Mammu Tjukurrpa that applies to the Lake Yindarlgooda section as it is wati business so only they have authority for it.
9.I know there is a song about the Lake that I have heard them sing from when I camped there as a child to now, but only a wati can sing it all so you would need to talk to them to get further information.
10.We can talk about the story for Mammu Tjukurrpa from the Transline road down to Mount Monger way. The other side of the Transline to Lake Yindarlgooda is wati business.
11.I was taught that the Mammu needs to know when you are there. If you are not accepted it is ngulu and you will be tormented spiritually and must leave the area.
12.When entering the country where Mammu Tjukurrpa is I was taught to do as the old people did and sing out in our language that I have come back home (camp) and to throw sand toward the wind. The mammu is in the wind and sand so if the sand comes back on you, you are not welcome and must leave. If the sand settles you are okay to stay and will be safe on country.
13.Mining companies should not be disturbing any part or site along all of Mammu Tjukurrpa including Lake Yindarlgood and there should not have been a road there either, as it damages the Mammu Tjukurrpa.
14.If people do not respect the Mammu Tjukurrpa it is pika ngulu (dangerous) for them and will hurt us too.
15.What I was taught as a child I have continued to practice and teach to other children, the dances and stories of Tjukurrpa as it is my responsibility to care for my country and follow our law and custom.
The affidavit of Mr Tucker is made as follows:
I, Michael David Tucker, of 272 Hall Road, Kalgoorlie in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Michael David Tucker. I am a member of the Central East Goldfields native title claim group. I also own and run a mining contracting company called Kyrok Pty Ltd.
2.Hemisphere Resources had existing drill holes of Lake Yindarlgooda that they wanted to re drill [sic] so I did minor earthworks (pushed out mud) with a bulldozer for them to access the drill pads. I heard that Hemisphere Resources were working in the area and I contacted them to see if they had any work available for my company.
3.When I did the earthworks I did not know that Lake Yindarlgooda was a sacred site. If I had known it was a sacred site I wouldn’t have gone anywhere near it with a bulldozer.
4.I have not done any other work on Lake Yindarlgooda.
5.I have seen the map on page 9 of Aruma Exploration Pty Ltd’s statement dated 28 November 2011. I picked up sample bags left from previous drilling and did the minor earthworks which could be some of the clearing that can be seen on that map but most of it was done before I got there. That area was a big mess when I first saw it.
6.Before I did the work Hemisphere Resources told me that a heritage survey had been done. I assumed that he meant he’d done a survey through the Central East Goldfields group and the Goldfields Land & Sea Council. I don’t know if that was correct or not.
7.If the wati are saying that lake is a sacred site then I believe them. They know about the traditional law and I support that Law.
8.I am a member of the Central East Goldfields native title claim and an applicant for the claim. I am a wati, an initiated man.
Mr Sinclair states he is a member of, and applicant for, the native title party, with authority under the native title party’s law to speak for the area of the proposed licences. Ms O’Loughlin states she is a member of the native title party and an elder and senior woman. Mr Tucker states he is also a member of, and applicant for, the native title part and is an initiated man. Accordingly, I accept Mr Sinclair, Ms O’Loughlin and Mr Tucker have the necessary authority to give the evidence they have adduced in this matter.
The affidavit of Dr Kruse is made as follows:
I, William Henry Kruse, of 8 Nanson Place Florey, in the Australian Capital Territory affirm
Background
1.I make this affidavit in support of the native title party in National Native Title Tribunal matters WO11/358 and WO11/753.
2.I hold a Doctor of Philosophy in Social Anthropology from the Australian National University and a Bachelor of Arts with Honours in Social Anthropology from the University of Sydney, and I work across Australia on native title and Aboriginal heritage matters. Since 1997 I have been briefed to conduct anthropological research for a range of non-government, government and private organisations across Australia. I have been working in Western Australia since 2001 and have worked and consulted with people from the Goldfields and Desert Regions since 2002. Annexed hereto and marked WHK1 is a copy of my curriculum vitae.
3.Except where otherwise stated the facts deposed to in this affidavit are known to me to be true and correct to the best of my knowledge. Where such facts are not known to me of my own direct knowledge those facts are true and correct to the best of my knowledge, information and belief and I have stated the source of that knowledge, information and belief. Where I have stated my expert opinion, I have provided the basis for that opinion.
4.On 10 August 2011, the Goldfields Land and Sea Council (GLSC) engaged Big Island Research to consult with members of the Central East Goldfields native title claim group (the claim group). I am an employee of Big Island Research and was tasked with undertaking the consultation and providing my expert opinion as set out below:
(a) Is the area of exploration licence E28/2116 (“the Relevant Area”) of particular significance to the Central East Goldfields native title claimants, in accordance with their traditions?
(b) If the answer to (a) is in the affirmative:
(i)Describe in detail the area(s) or site(s) within the Relevant Area and the basis and nature of their particular significance to the Central East Goldfields claimants in accordance with their traditions;
(ii)Consider whether there are any activities on or types of access to the Relevant Area that would, according to the traditions of the Central East Goldfields claimants, constitute interference with the area(s) or site(s) of particular significance within the Relevant Area; and if so
(iii)Describe how such activities on or access to the Relevant Area constitutes interference to the area(s) or site(s) of particular significance within the Relevant Area.
A copy of my brief is annexed hereto and marked WHK2.
5.Following my engagement, Dante Mavec, lawyer and employee of GLSC, provided me with background information about the Central East Goldfields native title claim, including identifying senior knowledgeable members of the claim group to consult with. It is in my opinion that I consulted appropriate senior knowledgeable people from the claim group relevant for the purpose of the brief. This opinion is based on three considerations. First, background research and identification of knowledgeable members of the claim group to interview for the site investigation of Lake Yindarlgooda was conducted by the claim group’s representatives at the GLSC. Secondly, I confirmed with the people I interviewed that they believed the right persons had been identified by GLSC for the research. Thirdly, based on my judgement and experience having consulted with Aboriginal groups in the goldfields and western desert regions, the persons I spoke with identified the basis for their right to speak for the area in a way that was consistent with western desert law and custom.
6.My opinion in relation to the probity and relevance of the information provided by the claimants is also based on my experience and a comparative understanding of the traditions and society of Aboriginal people in the goldfields and desert regions of Western Australia.
Research and Site Visit
7.On the 13^th of August 2011 I interviewed Ms Betty O’Loughlin and Ms Thelma O’Loughlin, who are members of the claim group and who reside in Kalgoorlie. Both women appeared to be aged in their mid-50s or older.
8.Ms Thelma O’Loughlin explained to me when she was a young girl she had travelled with her family from Leonoa to Cundeelee and that they had camped not far from Lake Yindarlgooda (the Lake). Ms O’Loughlin explained to me that at that time she had been told by her parents and other people “there’s a mammu (ghost or devil) dreaming there” and that the place was ngulu (dangerous) and that she should stay away from the Lake. Ms O’Loughlin also stated that Daniel (‘Stevie’) Sinclair was a member of the claim group, a wati (initiated man), and is one of the “right families” for the Lake.
9.On the 14^th of August 2011 I visited the Lake with Mr Sinclair, who is a member of the claim group, and Leo Thomas, a GLSC Project Officer. We drove to an area at the south-western end of the Lake not within the tenement applications E28/2116 or E28/2127 at coordinates 51J E0399872, N6593025 (GDA 94 datum) where Mr Sinclair discussed the Lake’s significance. Later the same day we drove to the northern shore of the Lake and stopped at location 51J E0429048, N6613388 (GDA 94 datum) within tenement application E28/2116. At this location Mr Sinclair confirmed that the information he had provided earlier in the day at the south-western part of the Lake also related to the whole of the Lake.
10.Whilst driving around the south-western edge of the Lake we encountered an old campsite. The campsite included two mulga trees that had been cut for what Mr Sinclair identified as karli, boomerangs, and mirru, spear throwers. The location of this camp site was recorded as 51J E0387741, N6596953 (GDA 94 datum), which is not within tenement applications E28/2116 or E28/2127. There were many severely rusted old tins lying about, which may suggest, from the perspective of a layperson without qualifications in archaeology, that the camp site was post contact.
11.On 15^th August 2011 I interviewed Mr. Cyril Barnes of Kalgoorlie who stated to me he was in his 70s and John Walter “Danny” Graham of Kalgoorlie who stated to me he was “over 50”. Both men are members of the claim group. I also briefly discussed the Lake area with Bruce Hogan, a man in his 50s who resides at Tjuntjuntjara and who is a member of the Spinifex native title holding group, and Dinny Smith, a Warakuna man in his mid to late 70s, who is a member of the Ngaanyatjarra Peoples native title holding group. Mr Hogan confirmed to me and Mr Sinclair (who was present during the conversation) that the Lake is associated with the Mammu Tjukurrpa.
12.I noted that Mr Barnes stated that Mr Sinclair was an appropriate person to speak for Lake Yindarlgooda and that “wati, I gotta listen, western desert way, because Stevie’s a wati we can’t talk against the man, we follow the traditional culture”. Mr Barnes also stated, “if whitefella dig it up [Lake Yindarlgooda] the wati will say the place is finished, wybela karanu, ngurra wybela kuranu, whitefella finished, the land whitefella finished it”.
13.Mr Graham also confirmed when I interviewed him that Mr Sinclair was an appropriate person to speak for the Lake under the claim group’s traditions. Mr Graham stated to me, “if Stevie says the Lake is a site I gotta support him. If he believe that there is something there that can’t be touched I gotta believe him...we been brought up from little kids that what is sacred if you mess with it you’ll get sick, you’ll end up in hospital, if you do the wrong thing you get sick”.
14.In the late afternoon on 15 August 2011 I returned to the area of tenement E28/2116 with Daniel Sinclair, Danny Graham, Dinny Smith and Leo Thomas. We drove along the northern shore of the Lake and then camped for the night at a location approximately one or two kilometres north of the lake.
15.In the morning on 16 August 2011 around the campfire Mr Sinclair and Mr Smith further discussed the significance of Lake [sic]. As part of the discussion Mr Sinclair and Mr Smith spent some time discussing in western desert language the significance of the Lake and the tjukurrpa story associated with it. They referred to this tjukurrpa story as the Mammu Tjukurrpa (devil or ghost story). As they discussed this tjurkurrpa, they sang several parts of the song relating to the Mammu Tjukurrpa and mimicked and joked about the dance that is performed with the song. When I was unable to follow the discussion Mr Sinclair translated for me. From observation it was clear that both men knew the song and had witnessed it being performed and knew the story, or parts of it, that related to country they knew well. I asked Mr Sinclair to confirm with Mr Smith if the song and story related to the Lake we had driven past yesterday afternoon and were camped near. Mr Sinclair asked Mr Smith in Ngaanyatjarra language and I could follow that he replied yes.
16.In my opinion based on having witnessed many similar conversations between senior men about tjukurrpa, the men’s mimicking and joking reflected their enjoyment of recalling the song and how the dance is performed, and sharing their knowledge of it with each other.
17.I have read the affidavit of Daniel Sinclair, sworn 24 August 2011. The information set out in that affidavit reflects the information Mr Sinclair provided to me during my fieldwork. A copy of Mr Sinclair’s affidavit is annexed hereto and marked WHK3.
Opinion on Information from Claimants
18.On the basis of the language I observed Mr Sinclair and Mr Smith speaking, their actions and the stories they told, elements of their life history such as being initiated into western desert law and custom and living between Kalgoorlie and desert communities to the east, the way the other claimants interacted with or spoke with both men, and my own experiences working with Aboriginal people of the Goldfields and Desert Regions, it was apparent to me that Mr Sinclair, Mr Smith and the other claimants I spoke to observe that traditions of what anthropologists refer to as the Western Desert Cultural Bloc.
19.Mr Sinclair explained to me that according to his traditions, the cultural basis for the significance of particular areas is if there is a story or “tjukurrpa” associated with it. The term tjukurr, or tjukurrpa, is used throughout Western Desert Aboriginal languages and is typically translated into Australian English to mean “story”, “Law” and “the dreamtime”. Tjukurrpa refers to a key concept of western desert Aboriginal people’s religion that is well known in Australian anthropology and cited in specialist as well as popular literature.
20.Tjukurrpa is a term that can be used to describe events that formed the world in the creative epoch. It encapsulates the activities of mythic beings such as papa (dingo), wati kutjarra (two goanna man), karlaya (emu), marlu (kangaroo) and, in the case of Lake Yindarlgooda, mammu (devil or ghost people). The actions and events of these creative beings, told through tjukurrpa, establish a set of truths about the world as well as social rules, ceremonies and ways of living that from the basis of traditional Western Desert Aboriginal society and religion. Consequently, tjukurrpa also heavily shapes the way Western Desert Aboriginal people see and understand their country and their rights and responsibilities in respect to it.
21.Tjukurrpa stories tend to involve narrative events linked to named places and/or types of country and/or features of the landscape. In my experience such places have included Spinifex plains, rock holes, soaks, hills, small rock outcrops, types of rock (i.e. quartz), rivers, creeks, trees, animals and, on several occasions, lakes and salt lakes.
22.I have often heard Western Desert Aboriginal people speak of mammu, devils or ghosts, and the expression, mammu ku ngurra, devil’s or ghost’s country, is typically used to describe the areas associated with the actions of these mythical beings. As noted by Mr Sinclair in his affidavit (WHK3 at [13] and [15]), the actions of individual or groups of mythical beings are often intertwined or intersect with the actions of other mythical beings, such as the wati kutjarra (two goanna men). In my opinion, the story related by Mr Sinclair (with the assistance of Mr Smith) is a typical example of a western desert tjukurrpa story that is based in long established themes and narratives. I have no doubt the story, and the song I heard which describes it, stems from the claim group’s traditions.
23.The Western Desert Aboriginal religion frames all land through the lens of religion. However, in my experience, Western Desert Aboriginal people clearly distinguish between country and locations that are associated with specific tjukurrpa and country which is not. That is, not all land has the same religious significance. In my experience, it is the locations associated with tjukurrpa stories and events that Western Desert Aboriginal people commonly seek to protect by stopping damage from activities that they perceive will have a permanent impact on the land, or that they believe may be a precursor to greater damage in the future.
24.On many previous occasions Western Desert Aboriginal people have explained to me that they have no choice in seeking to protect areas associated with tjukurrpa from damage because the Law, and the religious responsibility it creates, does not allow an alternative. The responsibility to protect areas associated with tjukurrpa is enforced by the members of the wider Western Desert society – that is, by those with a high level of ceremonial knowledge who may not necessarily be members of the same native title claim group. As Mr Sinclair and Mr Smith explained to me when we visited the lake, other initiated men (wati) and people in other communities will find out if they gave permission for significant ground disturbing works (for example, exploration drilling) on Lake Yindarlgooda and they will be punished. Punishment may take a number of forms, including public admonishment at meetings or informal gatherings but also physical violence can occur (and is common) and it can include being hit with what is commonly known as a nulla nulla (a large club).
25.In my opinion, the information provided to me by Ms O’Loughlin, Mr Graham and Mr Barnes that I have outlined in this affidavit supports the view that Lake Yindarlgooda is a site of particular significance. Specifically, the information provided by the aforementioned claimants supports Mr Sinclair’s claim to be able to speak for the Lake area and about matters pertaining to Western Desert Aboriginal Law and culture. Ms O’Loughlin’s statement that she camped by the Lake as a young girl and was informed of its significance is also noteworthy in the context of the field visit discovering an Aboriginal camp site adjacent to the Lake.
26.In my opinion, the presence of Mr Dinny Smith during the fieldwork is characteristic of the way initiated Western Desert Aboriginal men who hold rights to a certain area seek counsel from other older initiated men in order to ensure that decision-making is shouldered by more than one person. Such behaviour is indicative of the way members of Western Desert society, particularly old men with deep religious knowledge, have a role in assisting to protect significance country – tjukurrpa – on behalf of those who follow “the Law” and, as I have observed on several other occasions, this can include areas outside of their own ngurra or country to which they might assert native title.

Conclusion
27.Based on the material and opinions discussed above, and the affidavit of Mr Daniel Sinclair (WHK3), in my opinion Lake Yindarlgooda (encompassing the whole of the Lake area) is an area of particular significance for those members of the Central East Goldfields claim group whom I interviewed and also for Western Desert Aboriginal people generally. Ground disturbing activities, such as drilling through the surface of the Lake, the creation of small bunds of waste collection and the tracks and marks left by large drilling vehicles will impact on the Lake’s appearance in a lasting way. The drill holes will take material from the Lake and its subsurface that will not be returned. Drill holes will be established that will not be remediated to a standard similar to if the Lake was not drilled, and they will stay in place on the Lake. Areas of vehicle disturbance will also be visible for some time. These tangible and ongoing impacts to the Lake created by drilling are perceived by the claimants to interfere with the ongoing maintenance and practice of their traditional laws and customs. Specifically, this includes being able to protect the Lake as a place of particular significance from disturbance so its landscape of Tjukurrpa remain intact.

The Government party submits that the usefulness of Dr Kruse’s evidence is doubtful. The Government party contends that where Dr Kruse’s affidavit ‘merely repeats’ evidence given the members of the native title party, the primary evidence of the Aboriginal witnesses should be preferred. Conversely, the Government party submits that, to the extent that Dr Kruse’s affidavit contains evidence not found in the affidavits provided by members of the native title party, it should carry little weight. In this respect, the Government party relies on the Tribunal’s statement in WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (23 February 2012), Daniel O’Dea (‘Emergent’) at [44] that ‘anthropological evidence should not be relied upon to supply information that does not appear in the primary evidence.’ With respect, the approach taken by the Tribunal in Emergent does not dictate that Dr Kruse’s evidence be treated in the manner the Government party suggests. As the Tribunal went on to say in Emergent, anthropological evidence about the nature and content of traditional laws and customs, being within the knowledge and expertise of anthropologists, may be accepted on its own. To the extent that Dr Kruse’s evidence in this matter deals with the traditional laws and customs of the native title party, I have given it appropriate weight. As the Tribunal noted in Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (8 May 2012), Daniel O’Dea at [30], the point made in Emergent was that ‘in the context of the predictive assessment required by s 237(b), expert anthropological evidence about the existence, location and significance of Aboriginal sites may not be accorded significant weight where the anthropological evidence is not supported by the evidence of traditional owners.’ However, where traditional owners have given evidence about a site or sites, anthropological evidence may help to explain, elucidate or put in context what has been said by the Aboriginal witnesses: Tarlpa at [36]. In my view, Dr Kruse’s affidavit does just that. Accordingly, I have given Dr Kruse’s evidence appropriate weight.
The affidavit of Mr Mavec sworn 24 August 2011 is made as follows:
I, Dante Joseph Mavec, of 10 Teahan Street, South Kalgoorlie, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Dante Joseph Mavec. I am employed by the Goldfields Land and Sea Council as a solicitor. My role includes representing the Central East Goldfields claim group in relation to expedited procedure matters.
2.On 4 May 2011 I have a telephone conversation with Peter Schwann, Managing Director of Aruma Exploration Pty Ltd (‘Aruma’). After the conversation I prepared a file note that recorded what was said. I made use of that file note when preparing this affidavit.
3.During the conversation, I informed Mr Schwann of the significance of Lake Yindarlgooda to the Central East Goldfields native title claim group. Mr Schwann informed me that if tenement E28/2116 is granted, Aruma intend to conduct drilling on Lake Yindarlgooda.
The affidavit of Mr Mavec affirmed 16 March 2012 is made as follows:
I, Dante Joseph Mavec, of 10 Teahan Street, South Kalgoorlie, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.I am a lawyer employed by the Goldfields land and Sea Council (GLSC). I commenced employment with the GLSC in May 2010.
2.One of my roles at the GLSC involves representing the Central East Goldfields claimants in relation to expedited procedure matters as well as some other future acts, in consultation with Wendy Gilbert, the claim lawyer for the Central East Goldfields native title claim.
3.The Central East Goldfields working group comprises representatives of Central East Goldfields families and has been given authority by the claim group to make decisions on its behalf in relation to certain matters.
4.I have been instructed by the Central East Goldfields working group to contest these objection matters.
5.I take my professional obligations seriously. I only act on instructions.
Claim group outcomes regarding heritage surveys
6.In the minutes of the Central East Goldfields claim group meeting held on 31 May 2001 the following item of discussion is recorded:
“Spoke about the survey that Ron Parker done. People not replying – complains to future surveys, sites overlooked. People knowledgeable on sites should go on surveys.”
7.In the minutes of the Central East Goldfields claim group meeting held on 26 May 2005 the following item of discussion is recorded:
“Concern about heritage agreements – mining companies are not following up with the surveys. Surveys have not been occurring in the Central East claim area in recent times. Resolved: (removed: [redacted], seconded: [redacted] all in favour): The GLSC is requested to ensure that mining companies conduct heritage surveys:
i.Prior to any ground disturbing activities
ii.Within a reasonable time of the tenement being granted and
iii.Always invite Central East people of surveys”
8.In the minutes of the Central East Goldfields claim group meeting held on 23 May 2007 the following item of discussion is recorded:
“There was discussion about heritage surveys in the Central East area. Fabian asked if the group can get confirmation about how many leases are being granted in the Central East claim area because leases may have been granted without GLSC’s knowledge.”
Communications with Peter Schwann
9.On 16 February 2012, Peter Schwann, Managing Director of Aruma Resources Ltd, emailed me seeking consent to directly contact Central East Goldfields claimants. Attached to this affidavit and marked DM1 is a true copy of the email I sent in response on 17 February 2012.
10.Mr Schwann responded by email on the same day. Attached to this affidavit and marked DM2 is a true copy of that email.
11.On 2 March 2012, Mr Schwann left a message on Wendy Gilbert’s answering machine. Ms Gilbert replayed that message for me. In the message Mr Schwann states that he will not work with Annie Muir regarding heritage surveys. Mr Schwann did not state any reason for this decision.
12.Ms Muir is the GLSC’s Coordinating Heritage Anthropologist. She is responsible for the coordination of all requests for heritage surveys received by the GLSC.
13.The Central East Goldfields claim group has appointed the GLSC its agent in relation to all requests for a heritage survey made to the native title claim group.
Mr Mavec is employed by the Goldfields Land and Sea Council and is the legal representative for the native title party. His evidence is uncontested and I accept it.

Grantee party contentions and evidence

The grantee party filed several sets of documents at different stages in this inquiry. The first set of material (GVP 358) was accompanied by two texts the grantee party appears to have obtained from internet websites and which the grantee party provided to support its contention that ‘lakes are avoided by aboriginal [sic] people’ (para 6). The first text is what seems to be a mostly apocryphal account of Aboriginal ‘folklore’ by the writer CW Peck, while the second is a version of a creation story entitled ‘The Two Wise Men and the Seven Sisters.’ Neither text goes to the point which the grantee party seeks to make and they are not relevant to the issues to be determined in this inquiry. The second set of material (GP Statement), though in the form of contentions, contains a number of unsworn ‘witness statements’ attributed to the officers and employees of mining companies. While I have accepted the grantee party’s statement as a statement of contentions, I have given little weight to the witness statements contained within it and there is no need to repeat them here.
The third and fourth sets of material, though not accompanied by contentions, included two affidavits sworn by Peter Bernard Schwann on 1 March 2012 (‘PBS Affidavit 1’) and 16 March 2012 (‘PBS Affidavit 2’), as well as the affidavits of Robert A.C. Jones, sworn 1 March 2012 (‘RACJ Affidavit’) and Andrew John Ford, sworn 29 February 2012 (‘AJF Affidavit’).
The affidavit of Mr Schwann sworn on 1 March 2012 is made as follows:
I, Peter Bernard Schwann of 10 William Street, Cottesloe, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Peter Bernard Schwann, and I am 61 years old.
2.I have been involved with aboriginal people all my working life and quite familiar with Aboriginal families and culture.
3.My first Heritage Site and Clearance as an active participant was with the Ophthalmia (Newman) Dam and caves in 1980.
4.I am a geologist with over 40 years experience and the Managing Director of Aruma Resources Limited (‘Aruma’), the Grantee Party.
5.Aruma has been involved with the Central East Goldfields People (WC99/30) (‘CEG’) and Goldfields Land and Sea Council (“GLSC”) since 2010 through the Glandore Project and has a signed Deferred Production agreement (“DPA”) with the CEG and GLSC on Aruma’s three (3) granted (11 may [sic] 2011) Mining Leases M 25/327, 328 and 330 on Lake Yindarlgooda completed in April 2011.
6.The Glandore Project was previously owned by Aruma’s parent company, Hemisphere Resources Limited (Hemisphere).
7.Hemisphere Resources Limited had been involved with the Glandore Project since 2007.
8.The Glandore Project covers the western end of Lake Yindarlgooda.
9.I have been involved in exploration on Lake Yindarlgooda for several years in my capacity as both geologist and Managing Director of Aruma and have undertaken several exploration programs on the Mining Leases.
10.I have been in consultation with the CEG through their agent, Ms Wendy Gilbert since May 2010 and in all the time negotiating the Mining Leases and DPA’s on them the Lake Site was not mentioned up until January 2011. This included a group presentation by Aruma to the assembled CEG claimants at the GLSC offices in Kalgoorlie on 29^th July 2010.
11.On the 18^th of January 2011, a meeting was held with the CEG at the GLSC and Mr Dante Mavec, a new employee with the GLSC, was introduced and it was on this occasion that the possibility of Lake Yindarlgooda being a site was first mentioned. This was also the first mention of Lake Yindarlgooda being a Dreaming Site by any of the people present, and this mention did not come from a claimant, a local aboriginal but the GLSC representative, Mr Mavec who started there two weeks before.
12.During a heritage site clearance of a licence at Steeple Hill E28/1833 on 20 June 2011 I asked traditional members of the survey team about the mentioned lake business and they said it was ‘rubbish’. On that survey, there were two factions, with one being described by a signatory on the CEG Claim as ‘from Leonora, not this country’.
13.On this survey we were only some 2 km from the edge of the alleged Mammu Tjukurrpa Heritage Site.
14.When notified in the Affidavits of Daniel Steven Sinclair and Dante Mavec on the 29^th of August 2011, the relationship of the Claimants to the area of the Lake and surrounding hills and plains seems to be vague at best. It would appear the Tjukurrpa is best defined as a story, and one that Mr Sinclair did not recall in all his clearances up to the beginning on 2011.
15.Mr Sinclair stated in his Affidavit
‘Tjukurrpa is out history, connection stories, our Aboriginal Law...It is my job to look after this country, including Lake Yindarlgooda...Tjukurrpa happened before white men came to this land. Tjukurrpa (ancestors from the Dreaming) always been here, they roamed this area, they make all the lakes and hills. The stories of the Tjukurrpa come from the animals and they made things’.
The statements seem to propose that Tjukurrpa is Law, ancestors and roaming entities
16.The Heritage Site Claim was stated in Letters from the GLSC as being the lake plus 250 m from the edge, but it is easily seen in the maps from DIA (attached) that the north eastern boundary runs along the Lake Edge.
17.Also as soon as the submission for registration had been submitted Mr Mavec was stating in his letter (24 September 2011) that the lake was a Registered Site. It is still not a registered site.
‘The Goldfields Land and Sea Council (GLSC) represents the Central East Goldfields native title claim group, who had a registered native title claim over the land subject to the above tenement application. The Central East Goldfields claimants have rights and duties under their traditional laws and customs to protect areas and sites of significance to them.
One such site is Lake Yindarlgooda, which is of particular cultural significance due to a mythological Dreaming associated with the lake. Our clients are very concerned by the prospect of any works being done on the surface or fringes of the lake. The lake is an Aboriginal site under the Aboriginal Heritage Act 1972 (WA). Under section 17 of that Act, a person who excavates, damages or in any way alters an Aboriginal site in breach of the Act commits an offence. The penalty for the first offence is $50,000, and company officers may also be held criminally responsible. ‘
18.A very experience anthropologist stated to me “that he conducted a survey over an area of Lake Yindarlgooda with the CEG with Stevie Sinclair as the Law Man with the women of the CEG and no mention was made of the lake being in any way significant”. The date of the survey he could not quote without going through his records.
19.The lake has been used and disturbed for many purposes as detailed in my previous submission ‘Lake Yindarlgooda Submission V4’ sent to Deputy President Sumner in December 2011.
20.Interviewing the claimants from the CEG was not undertaken as the GLSC stated on the 21^st of February 2012 in an email from Mr Mavec that
‘In relation to contacting claimants you seem to have suggested two different proposals below – meeting with Mercy, Dennis and Fabian, or seeking to gold a meeting of the wider claim group. Please let me know which of those proposals you wish to pursue. Note that a claim group meeting could be quite expensive due to venue hire, catering, and claimants’ travel expenses and that the timing would be subject to approval from GLSC management, as well as the availability of GLSC logistical and liaison staff (our meetings calendar is quite full already). Such a meeting would give a definitive sense of the claim group’s attitude towards Lake Yindarlgooda and if you go down this path I hope that you will remain open to an agreement that protects the lake. If you instead with to meet individually with Mercy, Dennis and Fabian, please indicate a timeframe when you would like to meet with them and the general nature of what you want to discuss, and I will pass on your request.
21.I have not made personal contact with any of the claimants since the Field Heritage Survey in June 2011.
22.I understand that certain statements made here could be regarded as ‘hearsay’ but with the constraints of confidentiality and personal employment they must remain as such. The lack of statements by the other claimants is also due to the grantees not naming or seeking views contrary to the view put forward by the GLSC.
23.On 29 February 2012 I was informed by Mr Aaron Rayner (Executive Director, Operations, Department of Indigenous Affairs) that the Mythological site “Lake Yindarlgooda, Mammu Tjukurrpa”, previously shown as Site ID 30602 had been removed from the Heritage Site list as registration procedures involving consultation with all claimant parties and other affected parties had not occurred.
24.There is no provision in the current Aboriginal Heritage Act for “mythological sites”. Only two categories are given.
(i) Archaeological sites – places or objects where material remains associated with past Aboriginal land use.
(ii) Anthropological sites – places of spiritual importance and significance to Aboriginal people.
The affidavit of Mr Schwann sworn on 16 March 2012 is made as follows:
I, Peter Bernard Schwann of 10 William Street Cottesloe, in the State of Western Australia, being duly sworn, make oath and say as follows:
1.My name is Peter Bernard Schwann, and I am 62 years old.
2.I have previously sworn an affidavit on this matter on the 1^st March 2012.
3.I am now in receipt of new evidence that was received by me on the 2^nd March 2012.
4.I am a geologist of over 40 years’ experience and the Managing Director of Aruma Resources Limited (“Aruma”), the Grantee party.
5.Aruma was issued a signed document for E27/472 titled “Agreement for Heritage Protection over Exploration and Prospecting Tenure” (“Document”) and was made, signed and dated 21 February 2012.
6.This Document was executed on behalf of the Native Title Claimant Group (the Central East Goldfields Group) and returned by the GLSC under letterhead, dated 27^th February 2012.
7.This Document was received by Auswide Mining Title Management Pty Ltd, Aruma’s land management consultants on the 1^st of March 2012.
8.This Document was received by Aruma Resources on the 2^nd of March 2012 and read by Peter Schwann on the 2^nd of March 2012.
9.This Document covers Exploration Licence 27/472 which encroaches over Mythical Site 30602 by 100% and can be seen on the three attachments from the DIA and the DMP Tengraph site.
10.The signatories to this Agreement are Peter Scwhann and Phillip MacLeod for Aruma Resources Limited and Ivan Forrest and Cyril Barnes on behalf of the Native Title Claim Group and witnessed, prepared and set under covering letter by Dante Mavec of the GLSC.
11.According to a search of the DIA Heritage Site Register undertaken on the 16^th of March 2012, the application for E27/472 encroaches upon the Lake Yindarlgooda Mammu Tjukurrpa Mythological Site 30602, the same site that also covers applications for E27/2116 [sic] and E28/2127, those being the subject of the current matter (APPLICATION NO WO11/358).
12.The entering into the Document for E27/472 at the same time that the Native Title claimant group opposed applications for E27/2116 [sic] and E28/2127 on grounds that those licences are within the Lake Yindarlgooda Mammu Tjukurrpa Mythological Site 30602 contradicts the position taken in the current matter (Application WO11/358) and matters raised in my affidavit of 1^st March, 2012.

The native title party contends that elements of Mr Schwann’s affidavit of 1 March 2012 are hearsay and should not be given any weight. Mr Schwann acknowledges that parts of his affidavit could be regarded as hearsay but notes that the grantee party was unable to obtain more reliable evidence due to confidentiality and limited access to members of the claim group. I appreciate that the grantee party has experienced some difficulties obtaining evidence in support of the argument it seeks to make, though I note that the grantee party did not take up the native title party’s offer to meet with the claimants. As for the representations attributed to Mr Rayner and the unnamed anthropologist, it is not clear why the grantee party did not seek to adduce the evidence by way of affidavits. Nevertheless, while the Tribunal is not bound by the rules of evidence, it would be inappropriate to rely on the statements narrated by Mr Schwann as evidence of the assertions made in those statements. As the native title party argues, Mr Schwann’s has not identified who the ‘traditional owners’ were or the basis for his assessment of their qualifications to speak about the area. The statement attributed to the anthropologist is even more problematic, and there is no reason why the grantee party could not have asked Mr Rayner to make the statement in the form of an affidavit. Accordingly, I have not given any weight to these statements in my deliberations. Insofar as Mr Schwann’s evidence relates to his dealings with the GLSC, it is relevant and I accept it.
The affidavit of Mr Jones sworn on 1 March 2012 is made as follows:
I, Robert Arthur Cecil Jones, of Perth, in the State of Western Australia, being duly sworn, make oath and say as follows:
a.My Name [sic] is Robert Arthur Cecil Jones. I am 72 years of age and of clear mind.
b.I am a retired member of the pioneering Jones family of Kurnalpi, Bulong and Hampton Hill Station who have pastoral properties that surround Lake Yindarlgooda. My family have been in the area since 1893. I have managed and worked 57 years on all family properties until my retirement 6 years ago (including Mt Monger Station).
c.I was born in Kalgoorlie and brought up on Hampton Hill Station and my childhood and early adult years was [sic] spent with the aboriginal people at Hampton Hill.
d.I am fluent with their language and knew all the old people and their children.
e.I remember clearly the Elders in the 50’s and 60’s. There was Johnny Morcome and his Wife Morton, who were known as King and Queen of the Wongi Tribe (Gubrion). Some of the other senior Elders were Sinclair and his wife Ruby (mother and father of Doodie (Don), Dungardie (Ralph) Sinclair, Bisical, Charlie, Sargent and Kingy Blizard. (It was common for most Elders to be known by one name)
f.Their children were close to the same age as me, and we all grew up together as Brothers. I speak the language and we worked together mustering sheep and cattle on horseback. This gave us plenty of time to talk to each other, and we often camped out. I learnt a lot about the Wongi people.
g.Other Wongi people I worked beside were Sunny Newton, Buster Tucker, Jo Uro, Johnny West, Colin West, Ned Kennedy and plenty others.
I have read the Affidavit of Daniel Steven Sinclair and would like to comment on the following points which relate to the numbered points in this Affidavit.
1.I have not met Daniel Steven Sinclair
2.
3.Karonie is south east of Lake Yindarlgooda, not South [sic] as Mr Sinclair states. Hampton Hill Station surrounds all of Lake Yindarlgooda, not parts as Mr Sinclair states.
4.I honestly believe that Daniel Steve Sinclair’s grandfather, Roy Sinclair, had passed away, before he was born (or soon after). In memory, Ruby, was mother of Don or Doodie Sinclair. I do not recall Roy being named as Jilbi. Jilbi means “old man”, which we call all Elders.
5.I never heard the Elders talk of these dreaming stories. I believe this is fiction and made up.
6.Same as point 5.
7.I have not heard of the Graham and Barnes families and also Dinny Smith and Laurence Pennington, and believe they are not part of the Wongi Tribe.
8.I do not believe this. (It is fiction).
9.There was drilling done by Hanna Homestake in the late 1960 early 1970’s [sic]. Old time prospectors mined in different areas of Lake Yindarlgooda and Queen Lapage late 1800 early 1900 [sic].
10.I would believe this is Fiction again.
11.I have never heard that the lake is Mammu country. I don’t think Daniel has been there that much.
12.Danny Graham, Dinny Smith are names I do not know or have not been talked about to me by members of the Wongi Tribe, unless they are the younger generation.
13.I believe these stories are completely invented in recent years. I have never heard of them. Until 30 years ago, the Kalgoorlie Wongi tribe was always nervous of the Leonora tribes. I believe they all freely mix now.
14.Once again, these comments are fiction.
15.As above in point 14.
16.
17.
18.
19.Once again these comments are Fiction [sic].
The native title party made a number of criticisms of the evidence provided by Mr Jones. First, the native title party argues that tjukurrpa is an important and widely-known concept in Western Desert law and the fact that Mr Jones was not informed about tjukurrpa during his time at Hampton Hill suggests that this aspect of Aboriginal life was withheld from him. Second, the native title party notes that the Graham and Barnes families are connected to the claim area through material lines, and suggests that this might explain why Mr Jones is not familiar with their family names. Third, the native title party contends that the best evidence in relation to sites or areas of particular significance are those who have the traditional authority in relation to those areas or sites, and that the grantee party has not raised any basis on which to question Mr Sinclair’s authority and credibility. I agree with those submissions. In any case, I have not found the evidence of Mr Jones particularly helpful in this matter. Mr Jones is not an anthropologist and has not stated how his opinions about the traditions or customs of the native title party are based on specialised knowledge derived from his knowledge, study or experience. Merely growing up and working alongside Aboriginal people on Hampton Hill station does not qualify him to give evidence on these matters. While I accept that elders may have informed Mr Jones about certain aspects of Aboriginal life, that does not mean he is aware of all aspects of the native title party’s law and culture. Nor has the grantee party or Mr Jones identified any reason to doubt Mr Sinclair’s evidence. Mr Sinclair deposes that he is the person with traditional authority to speak for the area and is recognised as such by Ms O’Loughlin and Mr Tucker. Accordingly, to the extent as Mr Jones’ evidence contradicts the evidence Mr Sinclair, I must prefer the latter.
The affidavit of Mr Ford is made as follows:
I, Andrew John Ford, Chief Operating Officer, Rubicon Resources Limited at Level 2, 91 Havelock Street, West Perth WA, being duly sworn to make oath [sic] and say as follows:
1.Rubicon Resources holds mining tenements over and adjacent to Lake Yindarlgooda covered by the Central East Goldfields People Claim (WC99/30).
2.Rubicon Resources or companies with Joint Ventures/Agreements with Rubicon have completed Heritage Surveys over Rubicon Tenure within and adjacent to Lake Yindarlgooda during the period from December 2006 until August 2009.
3.On July 28^th and 29^th 2006, Western Heritage Research Pty Ltd conducted a survey over a number of tenements on behalf of Heron Resources which were located around and over Lake Yindarlgooda, many of which were subsequently transferred to Rubicon Resources. Three claimant groups were involved in the survey, and the Central East claimant group was comprised of 6 claimants. The Central East Group cleared 47 tenements for exploration work provided existing registered sites were avoided. The tenements that were cleared included E25/273, E25/335, E25/222 and E27/337 which are partially or entirely over Lake Yindarlgooda. Rubicon subsequently drilled 18 aircore holes on historic E25/222 within Lake Yindarlgooda (Figure attached).
4.Between 29^th of June and 1^st of July 2008, Western Heritage Research Pty Ltd conducted a heritage survey on behalf of Rubicon Resources over 52 Rubicon tenements at its Yindarlgooda Project that were not previously covered in the 2006 survey. Four Central East native title claimants were involved in the survey as well as representatives of two other claim groups in the area. No ethnographic sites were registered following the survey and the proposed exploration program was approved. Rubicon drilled 40 aircore holes (1,639m) and 29 RC holes (2,110m) on E25/326 immediately adjacent to Lake Yindarlgooda around the Queen Lapage mine and QE1 prospect (Figure attached).
5.On the 13^th of August 2009, the GLSC conducted a survey for Rubicon’s then Joint Venture partner St Barbara Mines centered on tenement E25/273 and E27/291 which are on and adjacent to Lake Yindarlgooda and Lake Penny. Six Central East informants were involved in the survey as well as a second claimant group and the planned work program of drilling was approved. St Barbara subsequently drilled 137 RAB/aircore holes for 8,515m over the leases.
Insofar as Mr Ford’s evidence relates to his knowledge of surveys conducted on Lake Yindarlgooda on behalf of Rubicon Resources Limited and the works carried out in those areas, it is relevant and I accept it.

Contentions and evidence provided by the Government party

In addition to the standard contentions and evidence it submits for all objection applications proceeding to an inquiry before the Tribunal, the Government party also lodged a statement of contentions in response to the contentions of the native title party. The document rewrites and elaborates upon the original contentions provided by the Government party and includes a detailed appraisal and rebuttal of the evidence provided by the native title party.

Tribunal documents

The Tribunal Geospatial Services team produced a map on 19 January 2012 showing the proposed licences and the features of the surrounding area, including DIA sites, registered native title claim areas, topography and tenure. The map was produced before the application was made to record Lake Yindarlgooda on the DIA register. After reviewing the grantee party’s statement, I requested, and the Geospatial Services team subsequently produced, maps of the following:
·withdrawn and determined objections lodged by the native title party within the boundaries of Site ID 30602 (Lake Yindarlgooda, Mammu Tjukurrpa);
·dead mining tenements within the boundaries of Site ID 30602 (Lake Yindarlgooda, Mammu Tjukurrpa); and
·live mining tenements within the boundaries of Site ID 30602 (Lake Yindarlgooda, Mammu Tjukurrpa)

Each map included an outline of the lake’s topography and a spreadsheet containing further information relating to the relevant tenements and objections.

The maps were circulated to parties for comment on 12 April 2012 and the native title party made a number of submissions regarding the Tribunal’s use of the maps. Specifically, the native title party stated that, if it is the Tribunal’s intention to use the maps to draw an interference that disturbance has occurred on any of the live or dead mining tenements over Lake Yindarlgooda, or that such disturbance has been consented to by the native title party, it objects to the Tribunal’s reliance on the maps for the following reasons:
·although the grant of a mining tenement permits disturbance, it does not necessarily follow from the grant of a mining tenement that disturbance has occurred; and
·the decision not to object or the resolution of previous objections does not establish consent to disturb.

I discuss the native title party’s submissions later in this determination.

Consideration of Auditor General’s Report

Accompanying the contentions which the native title party lodged in respect of WO11/753 on 7 November 2011 was a copy of the Western Australian Auditor General’s Report entitled Ensuring Compliance with Conditions on Mining (‘the Report’). Those contentions draw attention to the Report’s findings regarding the AHA, specifically (pg 22):
a.DIA has not actively monitored if operations are meeting the conditions place on them under the [AHA]. This means that registered Aboriginal heritage sites could have been lost or destroyed without the State knowing or taking action
b.We found that DIA has only undertaken inspections of heritage sites when responding to complaints received, but has taken no enforcement action when it has found non-compliance.
c.Because DIA has not been actively monitoring compliance with Aboriginal Heritage conditions, it does not know the actual incidence of breaches of those conditions
Between the receipt of these contentions and the native title party’s further contentions in reply on 16 March 2011, the Tribunal gave consideration in another matter to the effect of the Report on the weight given to the State’s regulatory regime and, in turn, the predictive assessment required by s 237(b): see Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (24 February 2012), Helen Shurven (‘ASJ Resources’). In the native title party’s further contentions, it relies on Member Shurven’s comments in ASJ Resources to argue that, given the statements made by the grantee party in this matter, the regulatory regime will be ineffective to protect against interference with sites of particular significance on the proposed licences. Neither the grantee party nor the Government party addressed the Report or the Tribunal’s comments in ASJ Resources in their contentions.
As I stated in Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50 (9 May 2012) (‘Pirkopf’) at [31], I largely agree with the findings of Member Shurven in ASJ Resources in relation to the impact of the Auditor-General’s report. However I also accept the Government party’s argument that in order to establish that a protective regime operates effectively does not necessarily require universal compliance by enforcement of those protective procedures. As Member Shurven acknowledged ‘I do, however, agree with the Government party’s reply that weight must also be given to the evidence provided in relation to the proposed activities of each particular grantee party’ (ASJ Resources at [50]).

Section 237(a) – community or social activities

The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licences and activities undertaken pursuant to it 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 interferences): see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23] (‘Smith’). The notion of 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 451 [26]. The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at 451-452 [27].
In its original contentions, the Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold, the additional conditions and endorsements outlined above and the fact that there are no Aboriginal communities situated on the proposed licences to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. The Tribunal has previously found that s 20(5) in relation to pastoral leases is of little assistance to the Government party: Walley at [37].
Government party documentation indicates that exploration and prospecting activity has occurred over the proposed licences since 1991. While there is no specific evidence as to the degree of interference that has resulted from that activity, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the activity may have, to some extent, interfered with the native title party’s obligations to look after some areas of country. In addition, pastoral activity has probably affected the capacity of the native title party to carry out its traditional, social or community activities to some extent.
In its further contentions, the Government party notes that the native title party’s objection is limited to s 237(b) and submits that where facts are peculiarly in the knowledge of a party the failure of that party to produce evidence as to those facts may lead to an unfavourable inference being drawn. It is true that the native title party has not made any contentions in relation to s 237(a). Nevertheless, there is some evidence that the native title party carry on community or social activities on the proposed licences. Mr Sinclair makes passing reference to going to ‘the area around Lake Yindarlgooda many times with my family for hunting, camping and to learn and teach bush skills with my family’ (DSS Affidavit at para 11). However, this evidence is general in nature and provides no indication that these activities take place on or near the areas in question; as opposed to the far greater balance of area that is Lake Yindarlgooda. Ms O’Loughlin mentions travelling through the area and camping on Lake Yindarlgooda as a child (TMO Affidavit at para 5 and 6); however, it is not appropriate to infer on that basis that camping in the area still occurs on a regular basis. Ms O’Loughlin also states that she continues to teach children ‘the dances and stories of the tjukurrpa’ (TMO Affidavit at para 15), from which it could be inferred that she and perhaps other members of the native title party continue to visit Lake Yindarlgooda for the purpose of passing on traditional knowledge. However, Ms O’Loughlin’s evidence gives no indication of the frequency of such visits, the identity of the participants or whether they occur in the vicinity of the proposed licences. In that respect, if there is some likelihood of interference with the community or social activities alluded to in Ms O’Loughlin’s evidence, I do not consider that the interference will be substantial or more than trivial.
The evidence adduced in this matter by the native title party does not provide any basis for suggesting that there are significant social or community activities carried out by the native title party in or within the vicinity of the proposed licences, which are likely to be affected by the grant of the tenements. I find that the grant of the proposed licences is not likely to directly interfere with the exercise of the community and social activities of the native title party.

Section 237(b) – sites of particular significance

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 chance or 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 [18], the Register kept under the AHA shows that the proposed licences overlap an ‘other heritage place,’ but this does not mean there may not be sites or areas of particular significance to the native title party within or in the vicinity of the proposed licences. 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 AHA protects all Aboriginal sites, whether on the Register or not.

Mr Sinclair attests to Lake Yindarlgooda and the surrounding sand dunes as being an area of particular significance. Mr Sinclair deposes to visiting the area around the lake ‘many times with my family’ (DSS Affidavit at para 11). Mr Sinclair states that Lake Yindarlgooda is Mammu Tjukurrpa (Devil/Ghost Dreaming) (DSS Affidavit at para 13) and that the ‘mammu lived at Mt Monger but on their way to Mt Monger from Coolgardie, they travelled and hunted on Lake Yindarlgooda’ (DSS Affidavit at para 14). Mr Sinclair also states that the Lake is ngulu (dangerous) and ‘when we come here we got to burn smoke to let the mammu know we are here. The tjilpi (old men) taught me it’s the whole lake that’s ngulu’ (DSS Affidavit at para 14). Mr Sinclair explains that ‘Tjukurrpa is our history, connection stories, our Aboriginal Law’ (DSS Affidavit at para 6) and that if a Tjukurrpa place gets damaged or disturbed people will get sick (DSS Affidavit at para 8 and 19). Mr Sinclair deposes to the fact that it is his job to look after this country, including Lake Yindarlgooda (DSS Affidavit at para 7) and he must look after the Tjukurrpa so that they can pass it on (DSS Affidavit at para 8). Mr Sinclair indicates he is aware that mining companies have done drilling on the lake previously but that ‘that was all wrong. It should never have happened. White people...need to leave that lake alone’ (DSS Affidavit at para 9). Mr Sinclair states that ‘they can drill up in the scrub [but] not on the lake, not from the sand ridge down to the lake either’ (DSS Affidavit at para 19).
The grantee party questions Mr Sinclair’s evidence and alleges that the lake is not in fact regarded as a site or area of particular significance by members of the native title party. The grantee party’s allegations can be divided into two broad contentions. First, the grantee party claims that there has been a ‘fundamental change’ in the native title party’s attitude towards the lake (GP 358 at para 5, GP Statement). Second, the grantee party argues that representations made to the grantee party and others by members of the native title party demonstrate that the lake is not considered significant. In support of the first contention, the grantee party argues that the native title party only recently raised the issue of the lake’s significance, specifically at a meeting with the native title party and GLSC staff on 18 January 2011. The grantee party contends that the native title party has previously negotiated with the grantee party and other mining companies about exploration on the lake and entered into heritage and deferred production agreements with the grantee party in relation to several mining tenements applied for over the lake as recently as February 2011. I note in this respect that Tribunal mapping indicates that according to Tribunal records every objection lodged by the native title party in respect of exploration and prospecting licences now within the boundaries of Site ID 30602 prior to the applications in the present matter were withdrawn following agreement, apart from one objection which was withdrawn without agreement in 2000 and two in the same year which were the subject of a consent determination that the expedited procedure was not attracted. The native title party concedes that it has entered into the Goldfields Regional Standard Heritage Agreement (‘GRSHA’) in relation to tenements that overlap Lake Yindarlgooda (NTP Further Contentions at para 12) and Mr Schwann deposes that the native title party has entered into a heritage agreement with the grantee party in relation to an exploration licence which encroaches on Site ID 30602 since the lodgement of the present objections.
The native title party contends that the recent heritage agreement is irrelevant to the present matter because, although the subject licence is located within the boundaries of the Site ID 30602, it does not overlap the surface of Lake Yindarlgooda or the surrounding dunes but Lake Penny, which is on the other side of Bulong Road. More broadly, the native title party submits that the execution of a RSHA in relation to a tenement covering Lake Yindarlgooda is in no way inconsistent with the native title party’s assertion of the lake’s significance and in fact represents ‘a legitimate strategy’ to protect the lake ‘through cooperation with development proponents.’ The native title party also notes that in the deferred production agreement referred to by the grantee party the parties explicitly acknowledge ‘the high cultural and environmental value’ of the land and lake subject to the mining lease applications. The native title party argues that the ‘fundamental change’ referred to by the grantee party is the claim group’s decision to seek increased protections in relation to exploration and prospecting licences, rather than any change in the native title party’s attitude toward the lake.
The second contention that the grantee party seeks to make is that representations made by members of the native title party to the grantee party and others indicate that the lake is not considered significant. I have already dealt with the statements outlined in Mr Schwann’s affidavit and the evidence of Mr Jones. However, the grantee party makes other allegations that go to the same point. Specifically, the grantee party refers to the evidence of Mr Ford to the effect that surveys carried out on parts of Lake Yindarlgooda, including one conducted by the GLSC, led to the approval of the proposed exploration programs. The grantee party also alleges that members of the native title party were engaged by Hemisphere Resources Limited to bulldoze on the lake to clean off drill lines at the Supergene and Axial Planar prospects, although the allegation is made by way of the grantee party’s contentions rather than by affidavit. Furthermore, the grantee party queries the lake’s significance in accordance with the traditions of the native title party given that the claim boundaries do not entirely overlap the site.
The native title party admits that Mr Tucker carried out ground-disturbing work on the lake, but argues that Mr Tucker was not aware of the lake’s significance and the disturbance was an isolated event. In relation to the surveys conducted on the lake, the native title party make several submissions. First, the native title party argues that a survey is ‘only as accurate as its purpose and methodology permits,’ and contends that surveys conducted over large numbers of tenements involving two or three days of fieldwork ‘can make no claim to being a considered assessment of the potential impact of proposed works on Aboriginal sites in the survey area.’ Second, the native title party argues that surveys are usually conducted by reference to a particular program of works and that the responses from Aboriginal informants and consultant anthropologists are directed to those works. Third, the native title party contends that none of the surveys identified involved initiated members of the native title party, and argues those involved did not have possess the relevant cultural knowledge about the area. Mr Mavec deposes that the conduct of surveys, including concerns that sites have been overlooked and that informants have lacked the relevant knowledge, have been raised at claim group meetings in 2001, 2005 and 2007. The native title party contends that, apart from the survey conducted by GLSC in 2009, there is no record in the minutes of community or working group meetings to suggest that the native title party had any involvement in the conduct of the surveys to which Mr Ford refers or the selection of informants. In relation to the 2009 survey, the native title party contends that it was conducted for the purpose of providing advice about a proposed drilling program near another registered site located ‘well away’ from Lake Yindarlgooda and did not involve any initiated men.
Tribunal mapping suggests that the native title party has consented to exploration over Lake Yindarlgooda in the past and the evidence indicates that it has chosen to do so in the form of the RSHA. However, as the native title party has rightly pointed out, that fact has no bearing on whether the lake is a site of particular significance in accordance with the traditions of the native title party. The RSHA is a mechanism for ensuring that native title holders and claimants are consulted in order to prevent or minimise interference with sites of significance. The native title party’s policy of entering into RSHAs in relation to tenements over Lake Yindarlgooda represented a legitimate strategy for protecting heritage. The fact that the native title party no longer wishes to rely on the GRSHA to pursue that goal suggests that they were not satisfied with the outcomes it produced. In that respect, the ‘fundamental change’ to which the grantee party refers does not appear to be the native title party’s attitude to the lake itself but to the RSHA as a means of protecting it. Nor does the grantee party’s evidence about the heritage surveys or work carried out by Mr Tucker demonstrate that the native title party does not in fact regard the lake as a site of particular significance. In this regard, the grantee party’s contentions are misdirected. If there is a dispute within the claim group about the significance of Lake Yindarlgooda, the fact that certain individuals are not aware that the lake is a significant site does not mean that it is not a site of particular significance within the meaning of s 237(b). That is because s 237(b) is concerned with areas or sites of particular significance in accordance with the traditions of the native title party. The Government party contends that ‘logic suggests that a “site of particular significance” should at least be relatively well known to the relevant Aboriginal people.’ However, the Government party’s argument conveniently ignores the way in which traditional knowledge is transmitted in Aboriginal societies. As the Tribunal has observed in previous inquiries, the best evidence of such traditions is from a person or persons who have traditional knowledge and have the traditional authority to speak for a relevant area or site: see Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory [2002] NNTTA 212 (27 September 2002), John Sosso at [14]; cf Little v Western Australia [2001] FCA 1706. The Tribunal has also recognised that there may be circumstances in which a particular tradition, observance, custom or belief may only be known to a few people or even a single person: see Carol Dawn Bissett and Others/Mineral Deposits (Operations) Pty Limited/New South Wales (2001) 166 FLR 46; [2001] NNTTA 104 (24 September 2001), John Sosso at [69]. Mr Sinclair deposes that he has the traditional authority to speak for the area in question, and the evidence of Ms O’Loughlin and Mr Tucker indicates that other members of the native title party regard him as such. The grantee party has not adduced any evidence that contradicts that fact. In his evidence, Mr Sinclair not only describes the significance of Lake Yindarlgooda, but demonstrates how the lake’s significance is connected to the traditional laws and customs of the native title party. Dr Kruse’s evidence only reinforces the conclusion that the lake’s significance is embedded in the traditions of the native title party. To dispute the lake’s significance to the native title party on the basis that parts of the lake are situated outside the registered claim is to ignore the multitude of factors that determine where the boundaries of a native title claim are drawn and is not relevant to the question of whether the lake is a site of particular significance in accordance with the traditions of the native title party. As the native title party has rightly argued, there is no requirement for a native title claim to encompass the whole of a traditional area in which native title is held: Harrington-Smithon behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [30], [222].
The Government party’s contentions suggest that an area the size of Lake Yindarlgooda cannot qualify as an area or site of particular significance. The Government party contends that an ‘area or site of particular significance’ must be ‘an area that clearly stands out from the general background of other sites and the country as a whole.’ In particular, the Government party argues that ‘to say that any place or area crossed by a Tjukurrpa or associated with a particular dreaming qualifies as an area or site of particular significances raises the inference that the native title party is setting a low threshold which would encompass most if not all areas or sites in any native title claim area.’ They refer in support of that proposition to my recent decision in Emergent at [39]. In that decision I made reference to an assertion by Dr William Kruse to the effect that he
deposes to the fact that areas and locations associated with the specific activities of mythic beings are typically deemed the most culturally significant by Martu people and their protection is considered paramount. He states this is the basis by which Martu people distinguish country which is generally spiritually significant – as Martu religion is intrinsically linked to land and country – from specific culturally significant areas requiring protections from activities that are perceived to cause damage or harm....It would seem to me to be reasonable on the basis of this classification to come to the conclusion that the areas subject under the specified dreaming tracks within the proposed tenement area are areas that might be deemed to be generally significant whereas, arguably, the sites particularly the Tarlka site and Mt Bartle and Mt Russell could be regarded, being manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore particular significance to the Martu people. This such a distinction were not drawn, it would be on the argument of Dr Kruse, necessary to categorise all Martu land, including land which is covered by the current application as of particular significance to the Martu people.

The Government party argues that ‘it is clear from the Native Title Party’s evidence that there are many other sites or areas associated with the Mammu Tjukurrpa and that the Mammu Tjukurrpa is but one of a number of dreaming or songs known to the Central East Goldfields native title claim group.’ The difficulty with this contention is that the evidence of Mr Sinclair demonstrates that the presence of the Mammu Tjukurrpa imbues the whole of the lake with a spiritual and emotional significance to the native title party. To my understanding, what Mr Sinclair is saying is that the lake, not withstanding its size, is in fact a site of particular significance to the native title party. That the Mammu Tjukurrpa inhabits the landscape on a permanent basis means that the entire lake needs to be protected and that interference with the lake would be prejudicial to the spiritual and physical welfare of members of the native title party, in particular initiated men such as Mr Sinclair. It is also notable that the Tribunal has previously found that a large lake can be characterised as a site of particular significance in its entirety in relation to Lake Disappointment: see Western Desert Lands AboriginalCorporation v Western Australia and Another [2009] NNTTA 49 (27 May 2009), Hon C J Sumner at 149. Moreover, I have already found in an earlier decision concerning a tenement application over Lake Yindarlgooda that the lake is a site of particular significance (see Pirkopf). None of the evidence adduced in this matter controverts that finding. Therefore, I adopt the finding for the purposes of this determination.

On the basis of Mr Sinclair’s evidence, the native title party asserts in its contentions that the area of Lake Yindarlgooda is a site of particular significance. The native title party does not identify any specific sites within the area of the proposed tenement, or within the area of the lake for that matter, that bolsters this contention, but rather asserts that the lake as a whole is a site of particular significance and any disturbance to any part of the lake damages the native title party’s culture and history. I accept that Mr Sinclair has provided sufficient evidence to establish that Lake Yindarlgooda is an area of particular significance to the native title party. It is clear that the lake is an integral part of the Mammu Tjukurrpa dreaming story and that under traditional laws and customs certain members of the native title party have an obligation to monitor and control any person’s access to and activities within the area of the lake.
Having found that the proposed licences are within the boundaries of a site of particular significance to the native title party, I am required to reach a view as to the likelihood of interference if the proposed licences were granted. The Government party relies on ss 5, 17 and 18 of the AHA, and the grantee party’s willingness to enter into an RSHA type agreement with the native title party, to contend that the grant of the proposed licences is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually 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 (1 March 2007), Daniel O’Dea (‘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 Butcher Cherel, 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.
The Government party contends that the activities contemplated by the grantee party in the proposed licence areas ‘would be the same as, or no more significant than, the previous and continuing use of the area or would otherwise be insignificant in that context.’ In this respect, the Government party notes that the tenement areas have been subject to prior exploration and possibly mining activity and are overlapped entirely by pastoral leasehold. Tribunal mapping indicates that there is an extensive history of exploration and mining tenure over the proposed licences and the lake in general. However, as the native title party has argued, the grant of a mining tenement does not necessarily mean that disturbance has occurred. There is no evidence that exploration or mining activity has occurred on the proposed licences; however, the evidence indicates that significant exploration activity, including drilling, has been carried out in recent years on the surface of, and in areas immediately adjacent to, the lake. Nevertheless, I am not satisfied that activity on the lake has reached a level where it has begun to undermine the spiritual integrity of the site. In any event, though there is evidence of previous and continuing mineral tenure within the proposed licences, there is no evidence of prior interference within the tenement areas.

In contentions filed in respect of WO11/358, the grantee party states that it acknowledges its responsibilities under the AHA and ‘undertakes to commission a heritage survey of the area of the Licence prior to the conducting of ground disturbing exploration upon the Licence, if deemed necessary’ (GP 358 at para 8). The grantee party also states that disturbance will be ‘kept to a minimum’ (GP 358 at para 11). I note that these undertakings require no greater commitment than compliance with the AHA and the terms of the RSHA, and they give no indication of the kinds of activities the grantee party intends to carry out on the proposed licences. Mr Mavec states that, in a conversation with Mr Schwann, Mr Schwann informed him that if E28/2116 is granted, the grantee party intend to conduct drilling on Lake Yindarlgooda (DM Affidavit 1 at para 3). Although Mr Schwann has ample opportunity to deny making the statement attributed to him by Mr Mavec, he has not done so. The grantee party has been unwilling to acknowledge the native title party’s concerns about the lake despite the fact that the agreement it entered into with the native title party in February 2011 explicitly acknowledges the importance of the lake. In its ‘statement,’ the grantee party refers to the site as an ‘application’ and states that it ‘does not have protection of any sort.’ Mr Schwann also appears to be under the impression that the AHA does not apply to ‘mythological sites’ (PBS Affidavit 1 at para 24). These statements suggest that the grantee party does not entirely understand the nature of its obligations under the AHA. Various statements made by the grantee party in the course of this inquiry also indicate that its relationship with the native title party’s representatives is severely impaired. For example, Mr Schwann appears to suggest that the lake had not been an issue until GLSC staff intervened (PBS Affidavit 1 at para 11). Mr Mavec also produces an email in which Mr Schwann appears to insinuate that the GLSC have been acting contrary to the instructions of the claimants. Mr Mavec also gives evidence that Mr Schwann contacted the GLSC and informed staff that he will not work with the GLSC’s Coordinating Heritage Anthropologist. The grantee party did not seek to refute Mr Mavec’s evidence. Taken together, the statements made by the grantee party in these proceedings and elsewhere suggest that there will be significant obstacles for the grantee party in carrying out its proposed exploration programme in compliance with its obligations under the AHA. I do not suggest that the grantee party has any intention other than to comply with its legal obligations; however, in the circumstances, it will be difficult for the grantee party to comply with the relevant laws and regulations unless required to consult with the native title party and its representatives. Consequently, I find that without further comprehensive discussion it is likely that a site of particular significance may be interfered with.

237(c) – land or waters

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 at [41]-[57]).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [74]-[79] and the cases cited therein). As with s 237(a), the native title party has not made any contention in relation to s 237(c) in this matter, and the evidence does not establish that the grant of the proposed licences will result in a major disturbance to land or create rights which will do so.

Determination

The determination of the Tribunal is that the grant of Exploration Licences E28/2116 and E28/2127 to Aruma Exploration Pty Ltd are not acts attracting the expedited procedure.

Daniel O’Dea
Member
12 June 2012

[2012] NNTTA 59

12 June 2012

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law

Legal Concepts

Native Title

Traditions

Cultural Significance

Fiduciary Duty

Unjust Enrichment