Murray on behalf of Yilka v Gold Road Resources

[2015] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Murray on behalf of Yilka v Gold Road Resources and Another [2015] NNTTA 51 (30 October 2015)

Application No:                WO2014/0813

IN THE MATTER of the Native Title Act1993 (Cth)

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

Harvey Murray on behalf of the Yilka Native Title Claimants (WC2008/005) (native title party)

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The State of Western Australia (Government party)

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Gold Road Resources Ltd (grantee party)

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

Tribunal:  H Shurven, Member

Place:  Perth
Date:  30 October 2015

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 of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure not attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 32, 142, 147, 151(2), 155, 237

Aboriginal Heritage Act 1972 (WA), s 5
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), r 20

Cases:Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Goldphyre WA Pty Ltd [2013] NNTTA 101 (‘Murray v Goldphyre’)

Jango v Northern Territory of Australia [2006] FCA 318 (‘Jango v Northern Territory of Australia’)

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

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja v FMG’)

Ned Cheedy and Others on behalf of Yindjibarndi #1/ Western Australia/ Cazaly Iron Pty Ltd, [2008] NNTTA 39 (‘Cheedy v Cazaly Iron’)

Neowarra v State of Western Australia [2003] FCA 1402 (‘Neowarra v Western Australia’)

Roy Dixon and Peggy Mawson on behalf of the Gurdanji Karranjini People; Gordon Lansen on behalf of the Mara, Alawa, Yanyuwa and Gurdanji People; Les Hogan on behalf of the Garawa and Gurdanji People/Northern Territory/Ashton Mining Ltd; North Mining Ltd, [2002] NNTTA 48 (‘Dixon v Ashton Mining’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG’)

Representatives of the     Mr Malcolm O’Dell, Central Desert Native Title Services Ltd

native title party              Ms Isobel Milnes, Central Desert Native Title Services Ltd

Representatives of the     Ms Caroline Chapman, State Solicitor’s Office

Government party           Mr Matthew Smith, Department of Mines and Petroleum

Representative of the     Rhys Davies, DLA Piper Australia

grantee party 

REASONS FOR DETERMINATION

[1]This decision considers whether the State Government of Western Australia can grant exploration licence E38/2932 to Gold Road Resources Limited, without the normal requirement for negotiations with registered native title claimants or any registered native title body corporate which overlaps the licence. The Yilka registered native title claim overlaps the licence by 100 percent. The licence is approximately 1209 hectares in size and is located approximately 82 kilometres east of the Cosmo Newberry mission. The State considers the grant can be made without such negotiations. They deem activities permitted under the grant of the licence are not likely to interfere with the Yilka native title claimants community or social activities, sites of particular significance, or involve major disturbance to the relevant land and waters. So, in their notice of grant, the State have included a clause asserting an expedited procedure for grant of the licence should apply (see s 29, s 31 and s 237 of the Native Title Act1993 (Cth) (the Act)).

[2]The Yilka registered native title claim gives claim group members certain procedural rights, including the right to be a native title party and lodge an objection against the State’s assertion that the expedited procedure applies to the grant of the licence. The Yilka native title claimants have exercised their right to object and have lodged an objection with the National Native Title Tribunal. To answer the question of whether the grant can be made in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. I must determine whether or not the expedited procedure applies (see s 32(4) of the Act). Submissions and evidence from Gold Road Resources Ltd refer to that entity as ‘Gold Road’, and I adopt that descriptor in this decision.

[3]A decision that the expedited procedure applies means the State can grant the licence and Gold Road can proceed to explore without them or the State negotiating with the Yilka native title claimants. A decision that the expedited procedure does not apply means Gold Road and the State must negotiate in good faith with the Yilka native title claimants, with a view to reaching an agreement about the grant (see s 32(5) of the Act). Those negotiations may be done with or without mediation assistance from the Tribunal (see s 31(3) of the Act).

[4]To assist me determine this inquiry, I provided the Yilka native title claimants, the State and Gold Road with a copy of a map produced by the Tribunal’s geospatial unit. In addition, as parties had raised evidence in relation to a previous finding of this Tribunal (Murray v Goldphyre), a copy of the map used by the Tribunal in that matter was also circulated to parties.  No party objected to me referring to those maps in this inquiry. The tenement in Murray v Goldphyre completely overlaps the licence proposed in this matter. In Murray v Goldphyre, my decision was the act of granting that tenement was not an act attracting the expedited procedure, and parties needed to undertake the normal negotiations required by s 31 of the Act.

[5]Each party provided contentions in this matter. In addition, the Yilka native title claimants provided affidavits sworn by: Sean Calderwood (Senior Anthropologist with Central Desert Native Title Services); Robin Jeffrey Smythe (member of the Yilka native title claim group); and Harvey Murray (a traditional owner for the relevant country and an Applicant for and member of the Yilka native title claim group). Gold Road provided affidavits of: Sharon Leanne Goddard (General Manager of Gold Road); Kyle James Prentice (Project Geologist with Gold Road); and Justin Paul Osborne (Executive Director of Gold Road). Both Gold Road and the Yilka native title claimants requested I issue non-disclosure directions in relation to certain annexures and evidence provided. Following various emails with and between parties, those directions were issued with the agreement of parties on 17 August 2015. I accept the affidavits as provided by the respective parties and I accept each deponent has authority to speak on behalf of their respective party in their stated capacity.

[6]In addition to contentions and affidavit evidence, both Gold Road and the Yilka native title claimants were granted leave to lodge written replies in relation to certain aspects of the evidence, and those replies were provided. In view of the contentious nature of some material, a final opportunity for parties to ventilate any comments on the contentions and evidence was provided at a listing hearing on 17 September, 2015. Parties were then advised the matter would be determined on the papers as per s 151(2) of the Act, as the issues for determination could now be adequately determined in the absence of the parties

[7]In their original objection, the Yilka native title claimants stated it is highly likely the grant of the licence will directly interfere with their community or social activities, sites of particular significance, and involve major disturbance to the relevant land and waters. As required of me by s 237 of the Act, I must address each of these issues. However, in the contentions filed, the Yilka native title claimants do not prosecute their concerns in relation to major disturbance to the relevant land and waters of the licence (as related to s 237(c)). Similarly, neither Gold Road nor the State addresses s 237(c) in their contentions. There is no evidence before me to suggest the grant of the licence, or the exercise of any rights created by the grant, will involve major disturbance of land or waters in relation to the licence. For the remainder of this determination, I focus on s 237(a) and (b), which require me to decide, respectively, whether the grant will interfere directly with the carrying on of the Yilka native title claimants’ community or social activities, and whether the grant will interfere with sites of particular significance to the Yilka native title claimants.

[8]Issues which parties raised, and which I need to draw conclusions on to determine this inquiry, include the following:

a)     Should the Yilka expedited procedure objection application be dismissed?

b)    Has the lack of maps annexed to the Yilka affidavits denied Gold Road the reasonable opportunity to present its case?

c)     Should I adopt findings from previous Tribunal decisions?

d)    What weight should the anthropological evidence be given?

e)     Has there been previous exploration activity on the licence?

f)   What is Gold Road likely to do on the licence if granted?

g)    What are the Yilka native title claimants social or community activities?

h)    Will any social or community activities of the Yilka native title claimants be directly interfered with by activities of Gold Road?

i)   What are the sites of particular significance?

j)   Are all the sites of particular significance within exclusion zones?

a) Should the Yilka expedited procedure objection application be dismissed?

[9]The application of the expedited procedure is not concerned with obtaining agreement of the relevant native title party.  Rather, as President Webb noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [70]-[72]), 'the question is, should the right to negotiate apply because of the likely effect the exploration activities will have...'  Any agreement that may have been negotiated between parties may be adduced in evidence and would be taken into account by the Member conducting the inquiry, for example, whether the content of the agreement may mitigate against any likely effect of the grantee party activities.

[10]In the present matter, Gold Road has asked me to consider their submission that the Yilka native title claimants objection application should be dismissed pursuant to s 147 of the Act. They base this argument on the contention that certain agreements exist which are binding on Yilka and prevent the lodgement of such an objection. I have considered the submissions made by the parties on this issue and relevant related Tribunal decisions. My view on this issue can be summarised as follows:

1.   On the evidence before me,  I cannot be satisfied the Yamarna Project Agreement or the Yamarna Pastoral Lease Heritage Protections Agreement, both made 19 July 2004 and assigned to Gold Road on 23 June 2006 (the Agreements), are valid and binding as against the native title party. In this regard I particularly note:

a.   Gold Road has failed to address the authority of the applicant in its submissions; there is no evidence before me that the applicant was duly authorised to enter into the Agreements;

b.   The Yilka native title claimants are not strictly a party to the Agreements, rather Yilka strongly asserts it is not a party to nor bound by the Agreements, which were made with another native title claim group; and

c.   It is clear that a dispute exists between the parties as to the validity of the Agreements as against the Yilka native title claimants.

2.   It is not for me to determine matters of contract law. I agree with the native title party’s submission here, made in their Further Contentions of the Native Title Party in Reply to the Further Contentions of the Grantee Party dated 25 August 2015 (at 2.2) ‘...the mechanism for resolving contractual matters is not through a non-judicial tribunal such as the National Native Title Tribunal, but through a court of competent jurisdiction’.  Even Gold Road note, in the Grantee Party’s Statement of Contentions in Reply dated 24 August 2015 (at 12), that the terms referred to in the Agreements are ‘as a matter of contract law, amenable to a number of different interpretations’.

3. I must conduct an inquiry and make a determination based on the factors in s 237 in the ordinary manner. This does not necessarily mean the Agreements are completely irrelevant. For example, in Parker v Ammon, the Tribunal stated:

...even if [there is]...a valid agreement, the Tribunal has no power in these proceedings to in effect recognise the agreement by dismissing the objection or making a summary determination that the expedited procedure is attracted on the basis of it. Section 148(a) empowers the Tribunal to dismiss an objection application if it is satisfied that it is not entitled to deal with it (often referred to as a dismissal based on a lack of jurisdiction), for instance if there is no registered native title claimant or native title party over the area of a proposed tenement. Even if an argument could be made out that if [an agreement]...of this kind existed and an objector was refusing to withdraw an objection despite a clear contractual obligation to do so, the Tribunal could dismiss the objection under s 148(a), that is not the present case. Here there is a dispute about whether the agreement was properly entered into. Despite limited information on the issue there is no doubt that a dispute exists about the validity of the agreement and particularly whether...[the native title party] were authorised to enter into it... In these circumstances the Tribunal is obliged to conduct an inquiry and make a determination based on the factors in s 237.

[11]I also note that, even if I could be satisfied the Agreements were binding and valid as against the native title party, it does not follow s 147 is enlivened. In Cheedy v Cazaly Iron (at [16]), where there was no dispute that an agreement was binding and valid, the Tribunal communicated the following to parties:

It is the Tribunal’s view that this objection has been lodged in clear breach of an agreement between the native title party and grantee party and should be withdrawn. The Tribunal invites the native title party to do this. The Tribunal has given consideration to whether there are powers to dismiss the objection in the circumstances of the valid agreement but has concluded that the Native Title Act 1993 (Cth) (NTA) is not clear on the issue. The provisions of s 147 (frivolous or vexatious objections) and s 148(a) (not entitled to deal with the application – jurisdiction) may provide some authority to dismiss on the grounds of the pre-existing agreement but the power to do so is not explicit and may be open to challenge.

In that matter, the Tribunal proceeded with an inquiry, but considered any evidence should be related to the issues in s 237(a) and s 237(c) of the Act only, given that issues related to s 237(b) of the Act were dealt with by the agreement in that matter.

[12]In Dixon v Ashton Mining (at [14]), the Tribunal held:

For many years the Courts have recognised that when proceedings are obviously unsustainable that a court/tribunal has the discretion pursuant to the type of power encapsulated within section 147 to dismiss/strike out.

In the present matter, I do not conclude the proceedings are unsustainable such that I can exercise a power to dismiss.  I acknowledge the Agreements as provided by Gold Road, and will have regard to them in this decision to the extent they are relevant to the issues.

b) Has the lack of maps annexed to the Yilka affidavits denied Gold Road the reasonable opportunity to present its case?

[13]Gold Road contentions (at 1.4, 53-61) argue that because the affidavits provided by Yilka referred to maps, but did not annex those maps to the affidavits, Gold Road has been denied the reasonable opportunity to present its case (see s 142 of the Act), and the affidavit evidence should be given little weight.

[14]This has been dealt with in a recent matter before the Tribunal.  In Mungarlu Ngurrarankatja Rirraunkaja v FMG (at [61]), Member McNamara outlined that:

I agree that the failure to annex any maps referred to by a deponent creates a degree of uncertainty about the deponent’s knowledge of the location and extent of the area affected by the future act. However, the effect of such an omission on the weight given to the deponent’s evidence will depend on the nature of the evidence provided. For instance, in the example given by the grantee party, a reference to a place that cannot be identified by reference to an authoritative source of placenames is likely to have little probative value if it is merely said to be within a particular part of the tenement. On the other hand, the evidence will likely have greater probative value if the place is identified by reference to a place which is known (for example, if the unknown place is said to be a certain distance from the known place). Similarly, if the place is listed on the Register of Aboriginal Sites, it may be open for the Tribunal to conclude that the place referred to by the deponent is the same place listed on the Register. However, if there remains any uncertainty as to the location of the site or the deponent’s knowledge of the location and extent of the future act, a common sense approach would normally require the Tribunal to draw an adverse inference in respect of the party seeking to rely on the evidence.

[15]I adopt that reasoning, and note in the present matter there seems little ambiguity about the areas which are under consideration.  Gold Road has not appeared to have difficulty in presenting its case or referring to the various areas as described in the Yilka affidavits, so I do not draw any adverse inferences with regard to the affidavit evidence in this respect.

c) Should I adopt findings from previous Tribunal decisions?

[16]Gold Road contentions suggest I cannot adopt my findings from the Murray vGoldphyre decision over this same area of land 'in toto but may adopt some findings made in those proceedings and not others' (at 1.2, 42-48). Gold Road did not oppose me adopting the previous findings that: there are sites of particular significance in the north east and south west corners of the licence; the evidence in relation to social and community activities was not sufficient to support a finding they would be interfered with by exploration activities; and that pastoral activities had not had any significant impact on the social and community activities of the Yilka native title claimants. Yilka did not accept those findings should be adopted. In addition, Gold Road opposed adopting any other findings previously made.

[17]Yilka contended that I 'should have regard to' the previous findings and that 'none of the circumstances in this objection are so materially different as to justify the Tribunal making a different decision' (at 4.13).  The Yilka Reply of 13 August 2015 indicated I should adopt the following paragraphs from Murray vGoldphyre: 13, 36, 62-63, 65, 67 and 72.  The Gold Road Reply of 24 August 2015 argued those paragraphs should not be adopted for a number of reasons, including that the map generated by the Tribunal geospatial services in that matter was not before me (which it now is and was provided to parties), and that Gold Road has led new evidence including material related to exclusion areas.

[18]In Mungarlu Ngurrarankatja Rirraunkaja v FMG, the Tribunal neatly summarised this issue as follows (at [130]-[131]):

The Tribunal is not bound by its previous decisions (see Re Smith at 305; Mt Gingee Munjie Resources v Victoria at [20]). The Tribunal may, in its discretion, adopt any report, findings, decision, determination or judgment of the Tribunal, a court, a recognised State or Territory body or any other person or body (s 146 of the Act). The Tribunal is also entitled, as an administrative decision-maker, to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (Weld Range Metals v Western Australia at [149], citing Re a Solicitor at 77, Cadbury UK v Registrar of Trade Marks). However, while I am entitled to have regard to and give weight to previous decisions of the Tribunal where relevant, I am required to consider the entirety of the evidence before me in the present proceedings (see Karajarri Traditional Lands Association v ASJ Resources at [14]).

In the present matter, I have had the benefit of additional affidavit material which has shed further light on the issues under consideration. On the other hand, it has also been necessary to have regard to the fact that the proposed exploration will be undertaken by a different grant party, and there is a considerable amount of material currently before the Tribunal in relation to the policies and procedures adopted by the grantee party in relation to Aboriginal heritage. Therefore, while I have considered and given considerable weight to the findings of Member O’Dea, it has been necessary to have regard to the evidence before me in reaching my conclusions.

[19]In this inquiry, I have the benefit of my previous decision in Murray vGoldphyre, which is of some relevance as it overlaps the current licence entirely.  I have evidence and information provided by Yilka, some of which is similar to that provided in the previous matter.  I have evidence from the explorer, Gold Road, which is a different explorer to that in Murray v Goldphyre, and who therefore may wish to do different activities on the land.  For example, according to the statement to accompany the licence application provided by Gold Road to the State, the target minerals are gold, silver, nickel, copper, lead, zinc, chromium and uranium.  As such, rather than simply adopting parts of the Murray vGoldphyre decision, I have merely included it as information to be weighed and assessed, along with the affidavits and other evidence provided in this matter.  Where I consider the Murray vGoldphyre decision has relevance, I will state that in this decision.

d) What weight should the anthropological evidence be given?

[20]In this present inquiry, Gold Road contends that anthropological evidence should be given little weight except to the extent it is supported by primary evidence (at 1.4, 62-64).  Anthropological evidence was provided by Yilka in the form of an affidavit from Mr Calderwood.  Mr Calderwood states he holds an Honours degree majoring in anthropology, that he has been employed at Central Desert Native Title Services since March 2008, and prior to this, worked as a consultant to other organisations in relation to native title and mining issues.

[21]The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence.  The Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and support the Tribunal’s approach to its acceptance and weight.  The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work is probative (see Neowarra v Western Australia at [388]). Further, it has held that this is particularly so when it accords with the native title party evidence. For example, in Jango v Northern Territory of Australia (at [291]-[292]), the Court outlined:

It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist’s evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people.

Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps.

[22]I accept Mr Calderwood's evidence as being of an expert anthropologist who has undertaken heritage survey's with Yilka native title claimants, and that he has personal knowledge and understanding of the Yilka country, including of the licence in this matter.  Mr Calderwood's evidence is consistent with that of the Yilka deponents and I afford it probative weight.

e) Has there been previous exploration activity on the licence?

[23]The Gold Road Resources Limited Yamarna Project Proposed Exploration Plan for Exploration Licence 38/2932 July 2015 outlines previous activity on the licence.  No party has taken issue with this portion of the evidence. That previous activity includes surface soil samples and 9 aircore holes (to 40 metres in depth). Limited other on ground exploration appears to have taken place.

f) What is Gold Road likely to do on the licence if granted?

[24]Copies of documents referred to in this decision, and under this issue in particular, are covered by non disclosure directions under s 155 of the Act, as they contain commercially and culturally sensitive information. As such, these reasons disclose that information only to the extent necessary to appropriately explain the reasons.

[25]As noted, according to the statement to accompany the licence application provided by Gold Road to the State, the target minerals are gold, silver, nickel, copper, lead, zinc, chromium and uranium. They describe themselves as a ‘gold/uranium mineral focussed exploration company’. In year one, literature and previous explorer research will be undertaken and then ‘field mapping, rock chip and soil geochemistry will be planned over all the terrain amenable to conventional soil sampling’. In the second year, Gold Road ‘will implement a drill campaign to test geophysical/structural targets and soil/rock chip geochemistry anomalies detailed in year one’. The table of activities for year two includes ‘RAB [rotary air blast]/air core/RC [reverse circulation] drilling of targets and assaying’ and other rock chip and sampling assaying and other administrative activities. The further activities are noted to be contingent on the results from years one and two.

[26]Gold Road goes on to say year three and four could include deeper RC drilling, depending on results of the initial drilling. Activities in year five and beyond would focus on detailed drill programs of prospective areas discovered in years 1-4. New targets would also be drill tested, as well as possible bulk sampling testing.

[27]Affidavits provided by Gold Road give further detail.  Gold Road has an exploration camp near the old Yamarna Homestead (which is approximately five kilometres south west of the licence).  There are six exclusion zones across the Yamarna pastoral lease and two of those cover part of the licence in this matter. One exclusion zone is partly in the north east corner of the licence (Area 4) and one is partly in the south west portion of the licence (Area 5). The part of the exclusion zone in the north east protects a hill which can be seen from Minnie Creek Road. The part of the exclusion zone in the south west portion of the licence protects a breakaway which can be seen from the Yamarna-Mount Shenton Road and from the southernmost point of an access track. The location of the exclusion areas are communicated to all new employees and drill crews so they understand it is 'illegal' to disturb culturally significant sites.  Field work is not planned to occur in any of the land subject to the exclusion areas.  There are three access tracks in the south west area of the licence, as well as a portion of the Yamarna-Mount Shenton Road and a portion of Minnie Creek Road (photographs attached to affidavits indicate the tracks are red earth through bush areas). 

[28]A fence line runs through the licence in a south west direction and a photograph was provided of a wooden posted fence, some portions overgrown with vegetation.  Four photographs were also provided showing historical drill spoils and clearing from previous exploration - these photographs show some revegetation around each area.

[29]The previously mentioned Gold Road Resources Limited Yamarna Project Proposed Exploration Plan for Exploration Licence 38/2932 July 2015 provides much detail in relation to the planned drilling and exploration activities.  Maps annexed to this document indicate in year one the nearest proposed drill hole appears to be approximately 200 metres from the north situated exclusion zone.  In year two, the nearest drill hole appears to be approximately 500 metres from the north situated exclusion zone.  In years three, four and five, however, the proposed drill holes are, at various times, directly adjacent along the length of the north exclusion zone border; and directly adjacent to the borders of the north and south exclusion zone borders. I have not provided further detail due to the likely commercial sensitivity of the information. The affidavit of Mr Osborne, to which this document is attached, also outlines the approximate number of days of activity in each of the first five years of grant, being a maximum of: 3, 5, 15, 17, 19 respectively.  Mr Osborne states it is unlikely more than six people will be on the licence during these periods of exploration activity.

[30]The Yamarna Pastoral Lease Heritage Protection Agreement states that ‘the Miners shall not carry out any Ground Disturbing Activities in the Exclusion Areas identified in the Heritage Report’ (at 6.3).

[31]I note also that the Yamarna Project Agreement at clause 6.8 states ‘the joint venturers acknowledge that the State Government has prohibited the mining of uranium and thorium in Western Australia for nuclear purposes and that the grant of a mining lease does not authorise the holder to mine for uranium, or as a result of a condition placed on the mining leases granted after 25 June 2002'. However, this agreement was made in 2004, and as at 2009 the State lifted the ban on uranium mining.  The Gold Road program includes provision for uranium exploration.

[32]Gold Road has also provided two reports which include heritage information. One is dated 1994 and I provide more detail about that report at [45]. The other is a Report on Aboriginal Heritage Survey of the Yamarna Pastoral Lease for Asarco Exploration Company Inc and Yamarna Goldfields Limited dated June 2004. This report was prepared by the Ngaanyatjarra Council and is covered by the confidentiality orders in this inquiry, as are the agreements outlined at [30] and [31] above. The report was prepared for the information of the explorers with respect to the ‘heritage protection agreement’ between the explorers and Harvey Murray on behalf of the Cosmo Newberry native title claimants (that heritage protection agreement is the Yamarna Pastoral Lease Heritage Protection Agreement). The report referred to areas of cultural concern in terms of ethnographic sites, but no assessment was undertaken of archaeological sites. I note then that it does not appear to cover all the sites which could reasonably be expected to fall under the category of sites of particular significance for the purposes of s 237 of the Act.

[33]The report dealt with the whole of the Yamarna pastoral lease. The Yamarna pastoral lease extends beyond the licence in this matter (some ten to 20 kilometres east, 15 kilometres north, 15 kilometres west, and approximately ten kilometres south). The report was undertaken to identify the exclusion zones I have mentioned earlier in this decision, which were defined as ‘an area within which exploration related activities are not to occur, although access through such areas, for exploration and pastoral purposes along existing roadway is not affected’. The report also refers to a tjukurrpa (dreaming story) in the area which is related to an important and specific dreaming story.

[34]The report urges great caution in relation to keeping the information confidential because of the sensitivities which surround ceremonies with which this dreaming is concerned. The report confirms the dreaming tracks, associated with this dreaming story at their broadest level, link up waterholes and other sites considered to have been created by an important ancestor and the sites in the Yamarna area ‘are part of one of the longest and most well known of these tracks’. The Yamarna area sites represent the end point of that track. The report confirms there are a number of important sites in the Yamarna area spread over a larger area than just the pastoral lease, and within the pastoral lease there are six areas which have been identified. These are the exclusion zones referred to at [27] of this decision.  As noted earlier, the zones which overlap the licence in this matter are exclusion zones Area 4 and Area 5. Area 4 was unable to be specified through coordinates and, like Area 5, had an indicative boundary only.

[35]The report states ‘should any work be contemplated in close proximity to the identified exclusion areas, the Ngaanyatjarra Council is prepared to arrange more detailed consultations and inspections if these are considered necessary’. This suggests that areas in close proximity to these exclusions zones may also be sensitive or of particular significance to the Yilka native title claimants, and the boundaries for the exclusion zones are approximate only.

[36]It seems likely that in the course of its exploration program, Gold Road will exercise its right to conduct high impact, ground disturbing work in parts of the licence. If granted, the licence will authorise Gold Road to conduct a number of activities which could include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and to excavate, extract or remove such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), Reg 20).

[37]The State initially indicated they intended to impose the following Regional Standard Heritage Agreement (RSHA) clause on the grant of the licence:

In respect of the area covered by the licence, the Licensee if so requested in writing by the Yilka, the applicants in Federal Court application no’ WAD 297/2008, such request being sent by pre-paid post to reach the Licensee’s address, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yilka, the Regional Standard Heritage Agreement as may be endorsed by peak industry groups (e.g the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council) and offered by the Native Title Party of their representative.

The State then withdrew the clause on the basis of Gold Road’s assertion that the Agreements applied to this licence. At the listing hearing on 17 September 2015, the State indicated the RSHA clause could be reinvigorated should it assist. The Yilka representative advised the RSHA clause is irrelevant in this matter and Yilka will not sign the RSHA.

A number of other conditions and endorsements form part of the regulatory regime the State intends to impose on the grant of the licence.

g) What are the Yilka native title claimants' social or community activities?

[38]Social and community activities are described only in the broadest terms in the Yilka native title claimant contentions, and in the affidavits supporting those contentions.  Much of the information provided is focussed on cultural obligations to protect the area. There are general references to hunting, which is an activity not undertaken in a widespread way on the licence because of the sensitivities associated with the tjukurrpa and the sites located on the licence. 

h) Will any social or community activities of the Yilka native title claimants' be directly interfered with by the activities of Gold Road or any previous disturbance of the relevant land?

[39]The affidavit of Mr Osborne outlines the approximate number of days of exploration activity in each of the first five years, being a maximum of: 3, 5, 15, 17, 19 respectively.  Mr Osborne states it is unlikely more than six people will be on the licence during these periods of exploration activity.

[40]Given the general detail provided by the Yilka native title claimants about their social and community activities, and the limited number of days and number of explorers which would be accessing the licence at any one time, I do not conclude the social or community activities of the Yilka native title claimants would be directly interfered with by the activities of Gold Road.

i) What are the sites of particular significance?

[41]Mr Smythe outlines the importance of the licence and its surrounds to the Yilka native title claim group. He outlines a tjukurrpa which travels throughout the licence, from an important men's area in the south to an important men's area in the north, and continues on then to an area approximately 10 kilometres north of the licence. He states the area to the north and south of the licence are ‘really important’ to that important dreaming. He states ‘these places are located inside areas that have been blocked off to mining...they are what we call exclusion zones’. He states (at 26-28), ‘some places women can go, especially on the road. They can hunt off the road near those places and many people from the area do...It’s not okay for them to stop their car and unpack their things near those important places. This is the same for men or ladies, unless it's all the elders for that area’.

[42]This accords with evidence which suggests the exclusion zone boundaries are approximate only, from which I conclude the closer one gets to the exclusion zone border and beyond, the more sensitive and significant the area is to the Yilka native title claimants. He states ‘there is an important tjukurrpa that goes through there and places that are important to that tjukurrpa that have to be looked after’ (at 30). He states (at 39) that an anthropologist and senior men have ‘blocked off some of the areas that are important' (emphasis added). This suggests the exclusion zones protect only some of the areas of significance or particular significance, and there may be others of significance or particular significance on the licence, given its proximity to the exclusion zones.

[43]Mr Calderwood states the tjukurrpa is of regional significance and is well known to senior initiated men in the region (at 12). He states an impact on one site or area can extend further than just that area due to the significance of the tjukurrpa and the areas it tracks through (at 18).

[44]Mr Murray states ‘as the area of the Tenement is such a sensitive area, we don’t do large amounts of hunting in that area. We can travel the road, and hunt off the side of the road...we don’t want to make the mistake of getting too close’ (at 16).

j) Are all the sites of particular significance within exclusion zones?

[45]Gold Road provided a copy of the Report on an Ethnographic Survey of the Yamarna Project Area E38/461, E38/541, E38/661, P38/2503 and P38/2504 Laverton, Eastern Goldfields. The ethnographic survey was conducted in November 1994. It was commissioned by another grantee party and the aim ‘was to establish contact with Aboriginal people who retained traditional and cultural links with the Yamarna area’ and to ‘ensure that mineral exploration within the Yamarna project area E38/461, E38/541, E38/661, P38/2503 and P38/2504...will not impact upon any ethnographic sites of significance to living Aboriginal people’ (at 1.1). The research brief of the report ‘was to determine any areas of Aboriginal significance within the meaning of s 5 of the WA Aboriginal Heritage Act...existed within the boundaries of the Yamarna project area...’ It appears an agreement was made with that grantee party that all hills and breakaways would be deemed an exclusion zone to mineral exploration because the grantee’s interest was in the flat mineralised area of the Yamarna project (at 2.4). I do note it is questionable, however, whether the Yamarna project area from 1994 covers the area of the current licence in this inquiry. From visual inspection of maps provided it would appear the licence in this present inquiry is slightly to the east of that 1994 Yamarna project area. Even if the current licence is within the Yamarna project area of 1994, this report was looking for AHA s 5 sites, and not sites of particular significance for the purpose of s 237(b).

[46]In addition, Gold Road has not indicated its interest is only in the flat area of the licence. It has, however, stated it is aware of the exclusion zones and has policies and procedures relating to exploration conducted on those exclusion zones, which it has outlined in detail.

[47]In summary, my conclusions in relation to s 237(b) of the Act are as follows:

i.There are areas of high sensitivity and particular significance to the Yilka native title claimants in the north east and south west of the licence. 

ii.The boundaries of those areas have been recorded as exclusion zones which are recognised by Gold Road with well documented policies and procedures. 

iii.The boundaries of the exclusion zones are indicative only, and the areas are so sensitive that Yilka do not hunt in proximity to the exclusion zones. 

iv.Gold Road will be conducting ground disturbing activities in close proximity to the exclusion zones in years three, four and five of their exploration program. This will include drilling and exploring for target minerals of gold and uranium.    

v.There is nothing in the States regulatory regime which would be sufficiently nuanced to mitigate the effect of such ground disturbing work so close to these exclusion zones, even were the State to impose a RSHA condition on the grant of the licence.      

vi.There is nothing in the Agreements provided by Gold Road (as outlined in paragraph [10] of this decision), even assuming they do apply to the grant of this licence, which is not conceded, to mitigate the effect of such ground disturbing work so close to these exclusion zones.

Conclusion

[48]I am not satisfied the grant of the licence is likely to directly interfere with the community or social activities of the Yilka native title claimants or involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.  I am, however, satisfied that the activities of Gold Road are likely to interfere with areas or sites of particular significance to the Yilka native title claimants should normal negotiations between the native title party and the grantee party not be undertaken prior to any exploration activities being conducted on this licence.

Determination

[49]The determination of the Tribunal is that the act, namely the grant of exploration licence E38/2932 to Gold Road Resources Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member

30 October 2015