Mervyn Councillor & Others on behalf of the Southern Yamatji People v Coventry Enterprises Pty Ltd and Another - [2020] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Mervyn Councillor & Others on behalf of the Southern Yamatji People v Coventry Enterprises Pty Ltd and Another [2020] NNTTA 59 (30 September 2020)

Application No:

WO2019/0668

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Mervyn Councillor and Others on behalf of the Southern Yamatji People (WC2017/002)

(native title party)

- and -

Coventry Enterprises Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	30 September 2020

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) s 5 Land Administration Act 1997 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237
Cases:	Ben Ward; Clarrie Smith and Ors v Western Australia & Ors (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (‘Smith v Western Australia’) Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 (Yamatji Nation v Western Australia) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (‘TMPAC v Lake Wells’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representatives(s) of the native title party:	Ebony Paskov, Yamatji Marlpa Aboriginal Corporation

Representative(s) of the grantee party:

Betty Heitman, Coventry Enterprises Pty Ltd

Representatives(s) of the Government party:

Domhnall McCloskey, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This decision concerns whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E59/2373 (licence) to Coventry Enterprises Pty Ltd (Coventry).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice of its intention to grant the licence, the notification day being 31 July 2019. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure (expedited procedure statement). If the expedited procedure applies, then the licence may be granted without first requiring negotiation in good faith under s 31 of the NTA.
The licence is located wholly within the area of the native title determination application made by the Southern Yamatji native title claim group (WAD19/2019). On 9 August 2019, the registered native title claimant for the Southern Yamatji claim (Southern Yamatji) lodged an objection against the State’s inclusion of the expedited procedure statement.
On 7 February 2020, the Federal Court made an order to consolidate the Southern Yamatji claim and a number of other claims in the Geraldton and South West regions and to continue those proceedings under the Yamatji Nation claim (WAD345/2019). Also on 7 February 2020, the Federal Court made a consent determination of native title in relation to the Yamatji Nation claim which determines that native title does not exist in the licence area (see Yamatji Nation v Western Australia) (Yamatji Nation determination). Neither the consolidation order nor the Yamatji Nation determination have yet taken effect, both being subject to certain events following the registration of the Yamatji Nation ILUA which occurred on 30 July 2020. Accordingly, for the time being, Southern Yamatji remains a native title party in relation to the proposed grant of the licence.
In light of Southern Yamatji’s objection, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed by the President of the Tribunal to constitute the Tribunal for that purpose and, for the reasons outlined below, my determination is that the expedited procedure does not apply.

Issues in the inquiry

In accordance with s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The established legal principles regarding the approach to s 237 were summarised by the Tribunal in Yindjibarndi v FMG at [15]. The Tribunal’s role is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Depending on the circumstances, evidence of the particular grantee party’s intentions may be relevant to that assessment.
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia. In its objection application, Southern Yamatji raised issues relevant to each limb of s 237. However, according to its contentions at 3, Southern Yamatji now argues only interference within the meaning of ss 237(a) and (b). Accordingly, there is no evidence before me to indicate that major disturbance under s 237(c) is likely and this inquiry focusses on the likelihood of interference within the scope of ss 237(a) and (b).

Determination on the papers

The State provided contentions dated 13 May 2020 and supplementary contentions dated 18 May 2020, which respond to contentions provided by Coventry. It has also submitted evidence including a map of the licence area and surrounds, a Tengraph Quick Appraisal, a report from the Aboriginal Heritage Inquiry System (AHIS report), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence.
The State’s contentions also attach a statutory declaration of Betty Heitman, a director of Coventry, dated 8 July 2019 which states that Coventry offered to enter into a Regional Standard Heritage Agreement (RSHA) by sending it to Yamatji Marlpa Aboriginal Corporation, also on 8 July 2019. According to its contentions at 18, the State also proposes to include a condition requiring Coventry to enter into a type of RSHA if requested by Southern Yamatji within a certain period (RSHA condition). However, the State has not explained whether or how this clause would be applied once the Yamatji Nation determination takes effect.
Southern Yamatji has provided contentions (including by way of reply) and the following evidence:
(a)signed witness statement of Leedham Papertalk dated 17 March 2020;
(b)signed witness statement of Cecil James Hodder dated 19 March 2020;
(c)signed witness statement of Aimee Lamatoa dated 30 March 2020;
(d)map showing E59/2373 and lodged site ID 18906 within the Southern Yamatji Claim Area; and
(e)extract from the Register of Native Title Claims relating to the Southern Yamatji claim.
Mr Papertalk states he is a Yamatji man and senior elder and a Southern Yamatji claimant. Mr Hodder states he is a Yamatji man and a member of the Southern Yamatji claim. Ms Lamatoa holds qualifications in anthropology and sociology and has been employed as a Senior Anthropologist (Yamatji Region) at Yamatji Marlpa Aboriginal Corporation since 2018. Neither the State nor Coventry raise any issue with the evidence given in these statements, and I accept them for the purposes of the inquiry.
Coventry provided brief contentions by way of an email from Betty Heitman, but no evidence.
Southern Yamatji and the State agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. Coventry did not express a view. Having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.

The licence and Coventry’s proposed exploration activities

It is convenient at the outset to outline the nature of the licence and Coventry’s proposed activities as these are relevant to my consideration of both ss 237(a) and (b).
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The licence is relatively small in area consisting of four graticular blocks, totalling 1203.69 hectares in area. The underlying land tenure is predominately unallocated crown land (UCL) (99.69%) together with the Morawa Yalgoo Road.
The Tengraph Quick Appraisal indicates that the UCL area (designated CPL24), previously part of the Barnong pastoral lease, was purchased by the State through the Department of Biodiversity, Conservation and Attractions. The whole of the licence area is also identified as FNA 14543 being File Notation Area Geraldton Alternative Settlement Agreement. This notation indicates that UCL in the area may be subject to creation as reserve under Part IV of the LAA (which I take to be the Land Administration Act 1997 (WA)) as part of the native title settlement. The notation also states that new tenement grants are to be referred to Land Use Planning Team Leader prior to grant. There is nothing before me regarding whether the proposed grant of the licence has been referred to the relevant officer in accordance with that notation.
As to its proposed exploration activities, Coventry’s s 58 statement provides that:
We are exploring for base metals and gold for the 12 graticular blocks applied for. Our goal is to find commercially viable quantities of gold and base metals to be able to progress towards a mine.
The steps taken will be to select a target area for each block. This will be discussed with our consulting geologist. An application for a POW will be submitted to DMIRS.
The proposed exploration activities will be carried out by ourselves
The work will be to do some surface exploration. Use a small dryblower and to test some surface areas
Depending on results we will put down drill holes to at least 100 meters.
The samples from the exploration would be analysed by a laboratory
The results would be analysed by our geologist and a report made to satisfy Form 5 requirements and mineral exploration report submitted to DMIRS in the usual way.
We have our own RAB drill and an attached machine to test for minerals as they come out of the drill hole.
We are experienced at exploration drilling having built the drill rig ourselves and operated it for 6 years.
…
The planned expenditure for the 4 blocks near Barnong is $33000
The basis of the reference to 12 graticular blocks is unclear. The licence application refers to only 4 graticular blocks, which is consistent with the expenditure mentioned in the s 58 statement. The short contentions provided by Coventry also state that it intends to minimise disturbance by following old fence lines and existing tracks and will comply with the conditions set by the Department of Mines, Industry Regulation and Safety (DMIRS).
In that respect, it is relevant to note that the conditions proposed by the State include the following in relation to CPL24, which is 99.69% of the licence area:
Prior to any ground-disturbing activity, as defined by the Executive Director, Resource and Environmental Compliance, Department of Mines, Industry Regulation and Safety (DMIRS) the licensee preparing a detailed program for each phase of proposed exploration for approval of the Executive Director, Resource and Environmental Compliance, DMIRS. The program to include:
•    maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
•    the purpose, specifications and life of all proposed disturbances;
•    proposals which may disturb any declared rare or geographically restricted flora and fauna; and
•    techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances
Southern Yamatji argues that I should assume Coventry will avail itself of all of the rights available to it under the licence (reply at 21). The s 58 statement refers to the selection of a target area for each block (subject to approval of the program of work) followed by surface exploration using a small dryblower and drill holes to at least 100 metres depending on results. There is no time limitation on the activities outlined in the s 58 statement and it appears to be a summary of how Coventry proposes to go about its exploration activities. The estimated exploration expenditure also gives an indication of the scale of the proposed activities. I accept it is possible that Coventry may alter these plans over time and there is also no indication at this stage of the number of drill holes proposed. However, there is also no basis to infer that Coventry will exercise all rights available to it as submitted by Southern Yamatji.

Predictive assessment

Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title holders?

What community or social activities does Southern Yamatji carry out?

Southern Yamatji contends that community and social activities occur in the licence area including hunting, camping, caring for and maintaining places of importance and protecting them from physical harm. It says that these activities are directly linked to the native title rights and interests claimed in the Southern Yamatji claim (contentions at 13).

Mr Hodder’s evidence

Mr Hodder outlines at some length his family’s long connection to Barnong Station. This includes living and working on the station. Mr Hodder says he would live at Barnong if he could and goes there “every chance he gets”. He speaks of regular visits to locations near the licence area, including Barnong and Wurarga, which is to the north of the licence.
Mr Hodder refers variously to Barnong Station, Barnong homestead and Barnong. I understand Barnong Station to refer to the former pastoral leases which included the majority of the licence area. Given the size of the licence, I expect Barnong Station covered a much larger area. This is consistent with paragraph 34 of Mr Hodder’s statement where he refers to a place on Barnong Station called Buddadoo. Buddadoo is marked on Annexure CJH1, some distance from the south-western corner of the licence area.
Barnong is shown on Annexure CJH1 and is situated to the south-east of the licence area. It is not clear whether this is also the location of the former Barnong homestead. Unfortunately the map at Annexure CJH1 is somewhat difficult to read and all locations and much of the background appear in the same colour. However, there is nothing to suggest that Barnong homestead is located in the licence area.
While Mr Hodder’s evidence refers to a number of locations on or near Barnong station which are outside the licence area, including Yalgoo and Wurarga, the majority of his evidence focusses on Five Mile Well, which the mapping shows is within the licence area.
At 15 and 16, Mr Hodder describes going to the area and camping about twice a month. He says “[q]uite often it’s not planned, we just go and that’s where we end up”. Annexure CJH1 includes images relating to Mr Hodder and his uncle, George Hodder camping at Five Mile Well on 4 March 2020, including the remnants of their fire. Mr Hodder says at 19 “[o]ur elders use to camp here, year and years ago, that is why we camped in this area”. At 28, he describes activities on this trip including hunting kangaroos and porcupines and eating coggler (pears) and says he spent a further two days in the area camping at the Barnong Homestead.
Mr Hodder describes the area as “a rich source of food for us” and refers to visiting the area with his family and passing on the traditions to the next generation (at 15-17, 21). He mentions a broad range of food available in the area, including bimba (edible sap from acacia trees), quandongs, kurrajong tree roots, coggler pears, kangaroos, bungarra (racehorse goannas), bardis (wichetty grubs) and emu eggs (at 22-27).

Mr Papertalk’s evidence

Mr Papertalk’s statement also refers to activities undertaken on the licence area at Five Mile Well. He says “we go hunting there all the time” and “[w]e always go through here every 4 or five weeks, looking for food, checking the springs are alright.” He identifies the main families that go to the area as the Hawkins, Martins and Hodders and says the last time he was there was a couple of weeks ago. (see Papertalk statement at 7, 10, 12) Mr Papertalk also states at 9 that his children go to the area every second weekend, although he notes they camp near Wurarga Dam, which is to the north of the licence area.
In relation to hunting and gathering, Mr Papertalk says the Five Mile area is good for goannas, kangaroo, turkey and emu eggs (11, 13, 17) and mentions gathering a broad range of traditional foods which grow in the area (including, gogglers, bimba, gulyoo (wild potato) and quandong), as well as collecting firewood, taking water and collecting bush medicine (at 18-24, 28-30). Mr Papertalk says at 26 that food is also supplied to the community and describes the intergenerational teaching of these activities (at 8, 25, 27).

Ms Lamatoa’s evidence

Ms Lamatoa’s statement mentions the Hodder family’s particular connection with Barnong station, which she says they see as their home. She says at 10:
The Hodders undoubtedly frequent the area of the proposed tenement most regularly of all the Southern Yamatji claimants to undertake traditional activities such as hunting and gathering, camping, and passing on traditional knowledge. Jamie and his family see these activities as things they ‘just do’ as a matter of routine for practical reasons and for enjoyment. They have recounted to me that this area is a place where they can experience a sense of peace. For this family in particular, any interference with their access to the area, or any impact on the environment of the proposed tenement area is likely to directly impact their ability to enjoy this area as they are accustomed.
She says the Hodders have expressed a concern on the cumulative impact of mining activities on the groundwater in the vicinity of the licence and how this may impact on the range of hunting and gathering activities undertaken.
Ms Lamatoa also mentions that other Southern Yamatji families including the Hawkins, Martins and Papertalks frequent the area to take advantage of traditional food sources including bungarra and bimba (at 11).

What do the State and Coventry submit regarding Southern Yamatji’s community or social activities?

In this case the State accepts that community and social activities are carried out by members of the Southern Yamatji in the licence area, particularly around Five Mile Well (State’s contentions at 23).
Coventry contends it can avoid areas where there have been campfires and gatherings. It also raises a concern regarding Southern Yamatji lighting fires during fire bans, but otherwise does not question the evidence regarding the conduct of community or social activities.

Conclusion

Southern Yamatji’s evidence, particularly that of Mr Hodder and Mr Papertalk is detailed and specific regarding the range and frequency of hunting, gathering and related activities regularly carried on in the area of and surrounding the licence, especially in the vicinity of Five Mile Well. Further, it is evident that these activities are inter-generational which is consistent with the evidence of the mia mias, discussed below.
Based on the evidence, I am satisfied that community or social activities as outlined in the evidence are conducted in the licence area, particularly in and around Five Mile Well.
The question then arising is whether the grant of the licence is likely to interfere directly with those activities.

Is the grant of the licence likely to interfere with the carrying on of Southern Yamatji’s community or social activities?

Section 237(a) speaks of direct interference, explained by the Federal Court in Smith v Western Australia at [26] as follows:
The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
The Tribunal is also entitled to take into account contextual factors such as the frequency and nature of the native title party’s activities, the grantee party’s proposed work program, other activities conducted in the vicinity of the tenement, relevant statutory restrictions and restrictions contained in the proposed grant (Smith v Western Australia at [27]).
Southern Yamatji contends at 36 that the grant of the licence and the carrying out of Coventry’s intentions poses a real risk of interference for the following reasons:
a.   The carrying out of the proposed exploration activities is likely to impact on Southern Yamatji’s ability to enjoy and visit the area: Hodder WS [36]-[37]; Papertalk WS at [33], Lamatoa WS at [12], [14], [21].
b. The carrying out of the proposed activities will directly interfere with the Southern Yamatji’s right to care for the area and protect it from physical harm: Papertalk WS at [37], [39]; Lamatoa WS at [19].
c.   The Proposed Tenements contains places of deep cultural significance because it is believed to contain the mythological yet active being; the bimara which is central to the beliefs of the Southern Yamatji: Papertalk WS at [33-39]; Lamatoa WS at [18-20];
d.   The unauthorised entry to the area is likely to disturb the spirits within the tenement area: Hodder WS at [35]; Papertalk WS at [37];
e.   The cumulative impact of mining activities on the ground water in the vicinity will limit Southern Yamatji’s ability to undertake social and community activities: Hodder WS at [29], [32], [37], Lamatoa WS at [10], [12].

Of these points, b, c and d appear more relevant to interference within the meaning of s 237(b). Certainly, that is the context and import of the evidence cited.
While it accepts that community and social activities are carried on by members of Southern Yamatji in the licence area, the State argues that interference within the meaning of s 237(a) is unlikely because, in summary:
(a)there are no Aboriginal communities within the licence area;
(b)Coventry’s activities are low impact and non-intrusive and do not appear likely to have any real disruptive effect on community or social activities – further the State says that even if the activities of the parties do intersect that does not mean there is a real chance of substantial interference;
(c)Coventry is willing to enter into an RSHA which the State says, regardless of whether an RSHA is entered into, indicates a willingness to consult with Southern Yamatji and avoid activities likely to interfere with the activities of Southern Yamatji – and further that Southern Yamatji could enforce this intention through the RSHA;
(d)Southern Yamatji’s community and social activities have been subject to and co-existent with activities under previously granted tenements for a significant period of time – any intersection in activities under this licence will be the same as, or no more significant than, the previous use of the area;
(e)the activities of hunting and searching for food and exploration activity are inherently capable of co-existence; and
(f)there is little prospect of Southern Yamatji’s access being prevented in any substantial way as Coventry will not control access to the land. While the State concedes it is possible that Coventry might from time to time be in the way of Southern Yamatji in relation to a small area of land that would not amount to interference contemplated by s 237(a).
As noted, Coventry says it proposes to follow old fence lines and use existing tracks and says it can avoid areas where there have been campfires and gatherings. It also mentions previous logging and mining activities but, other than the State’s material, there is no evidence regarding those matters.
In its reply, Southern Yamatji disputes that the RSHA will be of any use in mitigating interference as consultation is not required for low impact activities, although the State was also making a broader point that Coventry’s willingness to enter the RSHA reflected its attitude and approach. It is not apparent how entry into or a willingness to enter into an RSHA directed at mitigating heritage impacts would assist to mitigate interference in the context of community or social activities of the kind outlined. Other than Coventry’s brief contentions, there is little to go on.
With respect to previous mining activities in the area, I accept this may be relevant depending on the facts. There is no evidence of what activities may have been undertaken under any previous tenements. The list of dead tenements in the State’s Tengraph Quick Appraisal show that a number of tenements were refused or withdrawn. Only four appear to have ever been granted and none of those covered the whole of the licence area.
Southern Yamatji addresses this issue at 7-13 of its reply but I find its contentions on this aspect somewhat inconsistent and confusing.
Firstly, Southern Yamatji correctly points out that the State has not led any evidence regarding the nature and extent of the previous mining activities and argues I should not have regard to the State’s assertion regarding the impact of past activities.
Secondly, it cites Mr Hodder’s evidence at 30 (the reference to 27 appears to be in error) that he is aware of previous mining activity in the area of Five Mile Well which caused damage and for which there was no accountability. This suggests there has been impact from previous mining activity, yet it does not appear to have diminished Southern Yamatji’s community and social activities in the licence area.
Thirdly, Southern Yamatji acknowledges that prior and current grants of tenure have prevented its members from visiting and enjoying the area to its fullest extent. It says this means that Coventry’s activities in areas not subject to prior or current grants are more likely to adversely impact the ability of Southern Yamatji members to visit and enjoy the area. Apart from the road, the evidence shows there is no current grant of mining or other tenure in the licence area. Southern Yamatji does not identify which areas have not been subject to previous tenure (I take this to mean mining tenure as the whole area has previously been subject to pastoral lease). However, given Mr Hodder’s evidence, any such areas would not appear to include Five Mile Well.
As the State points out, Coventry will not control access to the licence area such that it could prevent any right of access of Southern Yamatji. Any limitation on Southern Yamatji’s activities would come from the conduct of exploration activities as proposed by Coventry, which I have already discussed above.
On the question of context, Southern Yamatji says I should take account of the cultural significance of the activities conducted in the area. It is clear from the evidence that there is a significant cultural attachment to the Five Mile Well area, in part due to its association with the Bimara as discussed below. Mr Hodder also appears to have a particular connection with the former Barnong station due to his family association. I can accept that these attachments increase the importance of being able to continue to carry on community or social activities in the area, especially Five Mile Well. However, I do not accept that this necessarily means any activities on the area will cause substantial rather than trivial interference.
The evidence indicates that members of Southern Yamatji have continued to carry out community and social activities in the licence area, despite previous mining activity. Overall, taking account of the evidence of Coventry’s proposed activities, I do not consider it is likely that the grant of the licence will directly interfere with Southern Yamatji’s community or social activities in a substantial way.

Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to native title holders?

What areas or sites have been identified by Southern Yamatji

As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
Southern Yamatji contends there are a number of areas or sites of particular significance in the licence area. Each of these is discussed in turn below.

Wangara (Wurarga) Creek/Salt River site ID 18906

The AHIS report shows that ‘Other Heritage Place’ ID18906 Wangara Creek/Salt River covers well over half of the licence area, including the area of Five Mile Well. The site type is described as ‘Mythological, Rockshelter, Named Place, Water Source’. The status of the site is ‘Lodged’, which means information has been received regarding the site but an assessment has not yet been completed to determine if it meets the requirements of s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA) (see AHIS report List of Other Heritage Places page 1). I note that a site does not need to be registered under the AHA to be of particular significance for the purpose of s 237(b).
In her statement, Ms Lamatoa says she has consulted the file for this site. She says at 4 that her inspection revealed that the name of the site was intended to be “Wurarga Creek/Salt River” but that an apparent error resulted in the name Wangara being recorded. The map annexed to Mr Papertalk’s affidavit shows Barnong - Wurarga Road running north/south adjacent to the western boundary of the licence and Wurarga approximately 20 kilometres north of the north-west corner of the licence boundary. The State’s mapping also clearly shows Salt River in the vicinity of the licence.
Southern Yamatji contends this site is of particular significance because it is believed to contain the mythological yet active being, the bimara, which is central to the beliefs of the Southern Yamatji (contentions at 42).
Mr Papertalk says at 6 that the licence area which is known as Five Mile Well is connected in Yamatji law to the Bimara (water serpent), which he says is “our Dreamtime story”. He explains the significance of this area as follows:
32.My grandfather Mindooloo, that lightning man - Ned Papertalk was his name - walked that area and passed that law on to my father Eric Papertalk. My father passed it down to me.
33.As a cultural man, my main concern is the Five Mile Well and all the waterways. When I found out about the tenement I thought, why they gotta go there? Our Dreamtime story. Plenty other country for them to dig up.
34.All along that road [Barnong - Wurarga Road (see map at annexure A)], there and Five Mile Well, there's springs along there. It goes along to Salt River, flows down from Yalgoo (see map at annexure A), top of the highway there, east into Salt River (see map at annexure A). Connects into Munga Lakes at Morowa. Wolla hill (see map at annexure A) down to Morowa. From before European settlement, there's a story about it, about the Bimara.
35.Old Bimara got a big long beard, he been there hell of a long time. He's the serpent owner. He gives us water to survive, brings food along as well.
36.Bimara poke his head up and make the springs and that, all through. These springs are temporary. At Wurarga, he stops there, where the permanent water is, he protects that place. Temporary springs [are where] he keeps going.
37.If you do something in the creeks where that tenement is, it will disturb the Bimara up at Wurarga, at Gabyon Springs (see map at annexure A) - very fresh water and fish in there. It could affect the Bimara as far away as Ellendale Pool. Once you disturb a place you create a ripple.
38.Every time we chuck the sand in the water he smells us. If you don't throw the sand, you get sick. Happened to a mate of mine. People think it's a bloody joke, but it's not.
39.Bimara can do you good or bad, even death. If place being disturbed by mining mob, chase water and food away, people get sick, maybe die. Anyone could get sick, even white people.
40.They should be putting a buffer around that water. South of the boundary of the site should be fine for mining. Any exploration they should speak to the traditional owners. Show a sign of respect and build a relationship with Southern Yamatji, Yamatji people. It's a sign of disrespect. Landowners were here before colonisation. We can overcome that with heritage, make sure they don't impact on sites not been recorded. That's a good way to build a relationship.
I can see from the various mapping, particularly Annexure A to his statement, that the area described by Mr Papertalk broadly aligns with the area of the lodged site Wangara Creek/Salt River. Barnong - Wurarga Road runs parallel to the western boundary of the site culminating at Wurarga Dam in the north. The eastern boundary of the site is broadly parallel to Salt River, with Wolla Wolla being clearly visible at the north-eastern corner of the lodged site. Five Mile Well is clearly within the licence area, near to the southern boundary of the site.
Further, when Mr Papertalk says the area “south of the boundary of the site should be fine for mining”, I understand this to be a reference to the boundary of the lodged site as marked on the map annexed to his statement.
Mr Papertalk’s evidence in relation to the Bimara is supplemented by Ms Lamatoa’s statement at 18-20 as follows:
18.Leedham speaks about the proposed exploration area as a place where the Bimara [mythical water serpent] is active. Based on my knowledge and experience as an anthropologist in the Yamatji region, the Bimara is a central pillar of Yamatji Law, and belief in its creative and destructive powers are widespread amongst the contemporary Yamatji community.
19.In Yamatji law and custom, senior elders such as Leedham have a responsibility to protect areas that are sensitive to the effects of the Bimara, as otherwise people may suffer supernatural repercussions such as ill health or death.
20.It is understood by Southern Yamatji people that the Bimara is connected via water to the vital forces in country, so that disturbing the Bimara or not heeding the correct rituals in relation to it will cause water to dry up, making the land unable to sustain life. More direct spiritual impacts may also follow and cause misadventure or illness that can only be treated with the intervention of a mabarn [traditional medicine man/ healer].
Coventry has not made any comment in relation to the evidence regarding sites or areas of particular significance to Southern Yamatji. The State contends at 33 that the evidence does not establish the existence of such sites, however, apart from comments about the camp at Five Mile Well and the mia mias (discussed below), it does not give a particular reason for that contention.
I am satisfied from the evidence that the area of the lodged site within the licence area is a site or area of particular significance to Southern Yamatji. The location of the area is clearly described and is consistent with the boundaries of the lodged site. In particular, Five Mile Well is visibly within the licence area and within the boundary of the lodged site.
The particular significance of the area and waterways due to its association with and protection by the Bimara is also clearly explained by Mr Papertalk by reference to Southern Yamatji’s traditions. Ms Lamatoa’s evidence provides additional context regarding the importance of Bimara under Yamatji law.

Mia Mias

Southern Yamatji also asserts that the presence of mia mias (traditional shelters) on the licence area is of particular significance due to its connection with elders who camped in the area (contentions at 43).
Mr Hodder’s evidence regarding the mia mias is very brief. He states simply at 36 that there are “important mia mias [traditional shelters] nearby Five Mile Well which need to be protected”. The location of the mia mias is marked on the map annexed as CJH2 to Mr Hodder’s statement, a short distance to the north of Five Mile Well.
Ms Lamatoa states at 21 that when she visited the area with Mr Hodder and his uncle George in early March 2020, they identified the area containing the mia mias but it was overgrown and inaccessible. Ms Lamatoa says that this indicates to her that there is a risk of this site and other unrecorded heritage sites being destroyed in the absence of heritage surveys.
The State argues at 34 that the evidence does not support a finding that the mia mias are of particular significance according to Southern Yamatji’s traditions, rather than locations regularly used in the course of community or social activities.
The location of the mia mias is identified and I do not doubt they hold importance to Southern Yamatji. However, Southern Yamatji has not provided any evidence to explain the particular significance of the mia mias under Southern Yamatji’s traditions as required for s 237(b).
In the absence of such evidence I am not satisfied that the mia mias are an area or site of particular significance within the meaning of s 237(b).

Five Mile Well

In its contentions at 34, the State also contends that the camp at Five Mile Well has not been established as an area or site of particular significance according to Southern Yamatji traditions, as opposed to a location used in the course of community or social activities. This is the same argument put by the State in relation to the mia mias.

The State has not referred to any specific evidence or contention on the part of Southern Yamatji in relation to the particular significance of Five Mile Well. The particular significance of that site was not argued by Southern Yamatji in its contentions, which referred only to the lodged site and the mia mias (contentions at 42-44).
I suspect that the State may have been responding to Mr Hodder’s evidence at 37, which follows his evidence on the mia mias, and refers to the need to protect camping sites.
Southern Yamatji’s reply does not assist in clarifying the matter. It refers to Mr Hodder’s evidence at 15-16, 18-19 and 21 to demonstrate the significance of the Five Mile Well site in carrying on the teachings and customary activities of Southern Yamatji (reply at 24). However, those paragraphs clearly relate to the carrying on of community or social activities in the context of s 237(a). They do not mention the significance of Five Mile Well under Southern Yamatji’s traditions.
As already noted, the part of the licence area identified as Five Mile Well area is part of lodged site ID18906. Mr Papertalk’s description of the area of particular significance clearly includes Five Mile Well and he refers to the springs created by the Bimara in that area. I have already found the area of the lodged site within the licence area to be an area or site of particular significance.
However, there is no evidence to support a finding that the camp site at Five Mile Well is of particular significance in accordance with s 237(b), due to its association with teachings and customary activities of Southern Yamatji.

Is the grant of the licence likely to interfere with the lodged site ID 18906?

Southern Yamatji contends that interference within the meaning of s 237(b) is likely, citing particularly the evidence of the risk and consequences of interference with the Bimara. In his evidence extracted above, Mr Papertalk expresses concern for Five Mile Well and the waterways in the licence area. This concern is clearly associated with the Bimara story and its protection of the temporary and permanent springs as well as its ability to harm if the correct rituals are not followed. Ms Lamatoa’s evidence provides further context.
The State argues interference is unlikely due to aspects of its regulatory regime, including the proposed endorsements and conditions, the AHA and the RSHA condition. Southern Yamatji does not accept that these will adequately mitigate the risk of interference, given the nature of the concerns expressed by Mr Papertalk.
The State mentions endorsements on the licence which it says address concerns related to the interference with water sources. There are a number of endorsements which relate to water management or the taking of water, but there is no explanation of how these might apply to the licence area. Endorsement 8 also requires all activities to be undertaken so as to “minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation”. An obligation to only “minimise” such damage, disturbance or contamination does not mitigate the interference identified by Mr Papertalk.
Similarly, while entry into an RSHA might require notification, consultation and surveys for “certain activities” as submitted by the State, it would not address the specific concerns raised here. This is a point which has been raised by the Tribunal in a number of recent matters (see for example Marputu v Gianni at [66]).
As to the AHA, the State does not specify how it might apply here other than to note, it may also apply to unregistered sites. Further, the cases cited do not appear to be particularly illuminating in the context of facts of this matter. Given the nature of the lodged site and the extent to which it covers the licence area, it is difficult to see how the AHA will mitigate the risk of interference.
The State also argues that I can take into account the history of exploration and other activity to infer there has been prior interference “on or near” the licence which suggests the licence is unlikely to cause “substantial, if any, further interference”. I do not accept this submission for the same reasons given in TMPAC v Lake Wells at [97] – [100].
I therefore conclude that the grant of the licence is likely to cause interference within the scope of s 237(b).

Determination

I determine that the grant of exploration licence E59/2373 to Coventry Enterprises Pty Ltd is not an act attracting the expedited procedure.

Nerida Cooley
Member
30 September 2020