Name withheld for cultural reasons & Others on behalf of Yinhawangka v Glenn Douglas Archer and Another - [2017] NNTTA 54

NATIONAL NATIVE TITLE TRIBUNAL

Name withheld for cultural reasons & Others on behalf of Yinhawangka v Glenn Douglas Archer and Another [2017] NNTTA 54 (8 September 2017)

Application No:

WO2017/0009

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

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

Name withheld for cultural reasons & Others on behalf of Yinhawangka (WCD2017/003)

(native title party)

- and -

Glenn Douglas Archer

(grantee party)

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State of Western Australia

(Government party)

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

Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	8 September 2017

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – exclusion zone –excision – whether act is likely to directly interfere with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure not attracted
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 16, 18 Native Title Act 1993 (Cth) ss 31, 237
Cases:	Cheinmora v Striker Resources NL [1996] FCA 1147 (‘Cheinmora v Striker Resources’) Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Monument Murchison Pty Ltd and Another [2016] NNTTA 51 (‘Yugunga-Nya People v Monument Murchison’) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’) Murray v Western Australia and Another (2011) 257 FLR 450; [2011] NNTTA 91 (‘Murray v Western Australia’) Rosas v Northern Territory [2002] NNTTA 113 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNNTA 18; 169 FLR 1 (‘Silver v Northern Territory’) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’) Yindjibarndi Aboriginal Corporation v FMG Pilbara Ltd [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the native title party:	Kate Holloman, Yamatji Marlpa Aboriginal Corporation Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation

Representative of the grantee party:

Glenn Douglas Archer, Australian Outback Mining Pty Ltd

Representatives of the Government party:

Sam Pack, State Solicitor’s Office
Michael McMahon, Department of Mines and Petroleum
Bethany Conway, Department of Mines and Petroleum (now Department of Mines, Industry Regulation and Safety)

REASONS FOR DETERMINATION

This decision considers whether or not the expedited procedure applies to the grant of exploration licence E47/3488 (the licence) to Glenn Douglas Archer. In their public notice of the licence, the State of Western Australia included a statement that they consider the grant to be an act attracting the expedited procedure under the Native Title Act 1993 (Cth).[1] That is, the State asserted the grant of the licence could be made under the expedited procedure because it is not likely to offend s 237 – that is, the grant is not likely to:
(a)directly interfere with community or social activities carried on by Yinhawangka;
(b)interfere with areas or sites of particular significance in accordance with the traditions of Yinhawangka; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
[1]All references to sections of legislation in this determination are to the Native Title Act 1993 (Cth) unless otherwise stated.
The Yinhawangka People exercised their right to lodge an objection against the State’s assertion that the expedited procedure applied to the proposed grant of the licence. They could object because at the time of lodging the objection, they were registered native title claimants for the licence area (overlapping the whole of the licence). They are the only native title party for the licence area and their native title rights and interests were recognised in the Federal Court of Australia’s recent determination. Specifically in the licence area, non-exclusive native title rights and interests have been recognised. The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry to determine whether the expedited procedure applies to the grant of the licence. My decision must be based on the criteria set out in s 237, as outlined above.
For the reasons detailed below, I determine the expedited procedure does not apply to the grant of the licence. The effect of this is that the State cannot grant the licence without the ‘right to negotiate’ requirement for negotiations between Yinhawangka, Mr Archer and the State, in accordance with s 31.
All parties lodged contentions. The State and Mr Archer included various documents providing information about the licence area. Yinhawangka’s submissions include written statements from Mr David Cox, Mr Roy Tommy and Mr Marlon Cooke, as well as an anthropological report for the licence authored by Ms Zsuzsanna Gonda and dated May 2017. Mr Cox states he is a Yinhawangka elder, and Mr Tommy and Mr Cooke state they are Yinhawangka men. They each outline their family and cultural connections to Yinhawangka law, customs and country. I accept they have authority to speak for the area of the licence on behalf of Yinhawangka. Ms Gonda is an anthropologist employed at Yamatji Marlpa Aboriginal Corporation, who represent the Yinhawangka People.
As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Yinhawangka do not provide contentions or evidence in relation to s 237(c). Therefore, based on the material before me, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned.
Based on the evidence provided, I focus on ss 237(a) and (b) to determine whether the expedited procedure applies to the grant of the licence. In relation to s 237(a), I address the following issues:
i)What community or social activities do Yinhawangka undertake on the licence?
ii)What are Mr Archer’s proposed activities on the licence?
iii)Is the grant of the licence likely to directly interfere with Yinhawangka’s community or social activities?
In relation to s 237(b), I address the following issues:
i)Are there areas or sites of particular significance to Yinhawangka?
ii)Is the grant of the licence likely to interfere with areas or sites of particular significance to Yinhawangka?

Section 237(a)

What community or social activities do Yinhawangka undertake on the licence?

Hunting, fishing and camping

Yinhawangka’s contentions state the Yinhawangka People visit, camp, hunt and fish on the area of the licence. Mr Cooke identifies the ‘area around German Rockhole’ as a ‘known camping area’. I note German Rockhole is also called Barngunha. Mapping provided by parties and, in particular, in a detailed report provided by Yinhawangka from the anthropologist, Ms Gonda, locates Barngunha in the north east of the licence area.
Yinhawangka submit the licence area is good for hunting because of the existence of permanent waterholes, creeks and windmills. Mr Cooke states, ‘I go hunting within the Tenement area, searching for kangaroo and bush turkey around German Rockhole and near the windmill which has water. The area is good for hunting because it attracts animals.’ Mr Cooke also states:
The rock holes still have plenty of water … We go there often. I regularly visit the area; I camped out there with my kids the week before Easter this year.
Other Yinhawanka people also visit the area and camp. David Cox was out there a few months ago with a big mob.
Yinhawangka people camp there today because it used to be an old camping ground for our old people.
Mr Tommy states, ‘Barngunha is a hidden place which is hard to find. There is an old road from Rocklea to Hamersley that would bypass the area but this is no longer used. This place is special because it is hidden … and kept away from the general public. Knowledge of the area is special to the Yinhawangka people’. He adds, ‘I continue to hold a close connection to Barngunha and the surrounding area because my mother and uncles grew up there. We go back there on a weekly basis to be close to country and carry out traditional activities.’ Mr Tommy states, ‘Over Easter I was there [at Barngunha] with my family and we collected bush bananas and hunted Kangaroo’ and ‘I continue to fish at Barngunha with my family. There are freshwater Perch in the rockhole which we catch using traditional techniques’. Mr Cox also outlines in substantial detail:
I still fish like the old people showed me and I teach the young people to fish in the same way. Sometimes I fish at the rock holes in Yinhawangka country, including Barngunha. When I fish there’s a green bush that catches the fish. The spirit is caught up in the bush. I crush up the leaves of the bush and sing a song to the spirit. I tell the spirit why the fish should be caught … I throw the leaves into the rockhole and the spirit catches the fish and all those fish float to the surface. I catch kulumbu (freshwater fish).

Visiting, caring for and maintaining places of importance

Mr Cox, Mr Tommy and Mr Cooke all state they visit and ‘check on the country’. Yinhawangka submit the Yinhawangka people protect and ‘have made concerted and deliberate efforts to negotiate exclusion zones’ around special places such as Barngunha. Mr Cox outlines:
In 2012, me and my older brother … went out to Barngunha and Mundinya-maya with anthropologist and archaeologist to map a ‘no-go’ area. We showed the whitefellas the important area and they drew a circle on a map. This is the area that we ask mining companies … to stay out of. It is our job to protect the area from harm’.

Speaking authoritatively about the country among other Aboriginal people

Mr Cox and Mr Tommy both state, ‘We are the right people for the country, so other people have to ask out permission before coming in to our Yinhawangka country’.

Transmitting cultural heritage

Mr Cox states he practices Yinhawangka law and teaches it to the young people. He states, ‘I talk to them young people and tell them stories, and tell them about the country’. He states, ‘The old people … taught me and I teach the next generation and pass it on … We need to keep our special places so we can keep passing on the knowledge.’ Mr Cooke describes learning cultural knowledge from Mr Cox, and passing it on to his own children ‘out on country’.

Taking flora and ochre

Mr Cooke, Mr Tommy and Mr Cox describe collecting bush tucker and medicine, such as bush bananas, bush tobacco and nyirdi, from Barngunha.
Yinhawangka also submit that ‘areas within the Proposed Tenement, including but not limited to Barngunha are ochre sources’. Mr Cooke states:
There is a white ochre place near [German Rockhole] and it’s a known increase site where ceremony take place. The paint keeps on coming out of the ground, from the soak … The white paint increase site is just on the other side of the range, in a flat area. The white ochre place is different to German Rockhole, but it is connected to [it].
The two creeks that run close to the north eastern part of the Tenement connect German Rockhole and Mithigundi. The white ochre soaks and sites are found near those creeks.

Manufacturing traditional items from the resources of the area

Yinhawangka contend the Yinhawangka People manufacture traditional items from the resources found in the licence area. Mr Cooke states:
The area around German Rockhole and within the tenement is good for collecting wood to make throwing spears or miro. I use the mulga wood from the Tenement area near German Rockhole to make spears. I also use boomerangs from snake wood found within the Tenement area. I cut the wood and make the boomerangs out there in the bush.

What are Mr Archer’s proposed activities on the licence?

Mr Archer states his interest is in ‘a very small section of the tenement that is less than 5 Hectares’. I note the licence is just over 630 hectares in size. Mr Archer explains he was ‘forced to peg two graticule blocks to secure the tenement’, as pegging a smaller, more accurate area would have required him to travel there and he could not do this in the time before making his application. He states that because there are now other tenements pegged over the ground, he cannot reduce the size of the licence area ‘without losing the ground’.
Mr Archer states the small area of interest is located at the intersection of the boundaries of the two graticule blocks. He states it is ‘an existing resource of Chert material for semi-precious stones’ and ‘has a large amount of disturbed ground’. I note this area is called Rocklea Pittado, and is identified on the historical records provided by the State, and on grantee party mapping. It appears to be approximately in the centre of the proposed licence and some 2–3 kilometres from Barngunha. State information also indicates Rocklea Pittado is an undeveloped site of shallow workings, presumably from previous prospecting or exploration.
Mr Archer outlines his intended work programme is ‘to obtain samples from the existing site’. He further states:
I would only be in the area for approx. 10 days per year. I would only use existing roads to enter and exit the site. I would only be removing a small amount of material over the life of the tenement (approx. 10 tons) The intended works would be carried out in compliance with the DMP requirements pertaining to Exploration Licences. I would be accessing the tenement by existing tracks created by previous explorers and pastoral lease holders.
I note that State information indicates there are eight existing tracks on the licence. I also note information provided to the State by the explorer indicates a work program for the first two years, which includes using backhoe and truck, a detailed sampling program, and digging costeans.
Mr Archer states he is aware of his obligations under the Aboriginal Heritage Act 1972 (WA), has ‘a great deal of respect for the Yinhawangka people’ and wants to ensure his exploration ‘will not interfere with any Aboriginal Heritage or Cultural traditions’. Mr Archer states, for this reason, he ‘proposes an exclusion zone outside of [his] direct area of interest encompassing most of the tenement’, to be included in the terms of a Regional Standard Heritage Agreement (RSHA) with Yinhawangka. Mr Archer provides a map of this proposed exclusion area. I note the State’s contentions assert Mr Archer’s offer of an exclusion zone would encompass all parts of the proposed licence outside the Rocklea Pittado area. Mr Archer states he also offers to include in the RSHA a statement to the effect ‘I will not seek ministerial approval to enter the sacred site recorded on the [Department of Aboriginal Affairs] website without first obtaining the Yinhawangka people consent’ (emphasis in original, and see further discussion at [22] below regarding ss 16 and 18 of the Aboriginal Heritage Act 1972 (WA)).
The Tribunal wrote to the State and Mr Archer to request they provide the wording of the exclusion zone clause in the RSHA, but neither party provided such wording. In the same communication, the Tribunal requested information about ‘whether there was anything precluding the grantee party from requesting an excision of the area he was not intending to explore’. The Tribunal received no response from Mr Archer and the information provided in the State’s reply did not clearly address that query.
Yinhawangka confirmed an alternative agreement was sent to Mr Archer, which they refer to as the Yinhawangka Heritage Agreement (YHA). The Tribunal understands that agreement has not been entered into. That draft YHA had an exclusion zone clause. Under the clause the grantee would agree not to enter or conduct any exploration or other activity in that exclusion area. The grantee would also acknowledge areas within the exclusion zone are significant ethnographic and archaeological sites for the Yinhawangka People, and would agree not to make an application under s 16 or s 18 of the Aboriginal Heritage Act 1972 (WA) in relation to any land or waters within the exclusion zone. These sections relate to: being authorised to enter and excavate an Aboriginal site; and the examination or removal of anything on or under the site.
The State argue that, if Yinhawangka accepts Mr Archer’s ‘offer of a binding exclusion zone’ through the RSHA, he would be contractually bound to limit his activities to the area of Rocklea Pittado. The State also indicate they will include the following condition upon the grant of the licence:
In respect of the area covered by the licence, the licensee, if so requested in writing by the Yinhawangka Part A, being the applicants in Federal Court application No WAD 34012010, such request being sent by pre-paid post to the licensee's or agent's address, not more than ninety days after the grant of this licence, the licensee shall within thirty days of the request execute in favour of the Yinhawangka Part A the Regional Standard Heritage Agreement ("RSHA”) endorsed by peak industry groups and the Yamatji Marlpa Aboriginal Corporation.
The difficulty for me in this matter is that I am not aware of the wording of the exclusion zone clause in the proposed RSHA. In addition, Yinhawangka advised the Tribunal that:
Yinhawangka Aboriginal Corporation (YAC) is the registered native title body corporate which was determined to hold the native title in trust for the native holders (the Yinhawangka People). From 16 December 2016, YAC is also the authorised Heritage Service Provider for the Yinhawangka People. YMAC no longer organises heritage surveys for the Yinhawangka People, nor enters into heritage agreements on the Yinhawangka People’s behalf, therefore, it is not possible for YMAC to enter into a Regional Standard Heritage Agreement (RSHA) with any proponents on the NTP’s [native title party’s] behalf.
I note that if parties are not able to make an agreement, which includes an exclusion zone (whether it be in the form of an RSHA or the YHA), the rights created by the proposed licence would not be limited to Rocklea Pittado. The condition proposed by the State refers to a generic RSHA, and it is not clear what clause would be included within that generic document to action the exclusion zone. Nonetheless, I may consider evidence of a grantee party’s intentions in my predictive assessment of whether interference is likely.
Mr Archer has indicated he will avoid all areas of the licence apart from that central area he wishes to explore. However, no instrument has been executed to that effect. I have no doubt Mr Archer will act lawfully in relation to the licence, and I adopt the presumption of regularity in this matter (see Murray v Western Australia at [27]–[61]). However, in so acting lawfully, there is nothing which stops Mr Archer (or any assignees of the licence in the future), from exploring the whole of the licence.

Is the grant of the licence likely to directly interfere with Yinhawangka’s community or social activities?

To find interference is likely in accordance with s 237(a), there must be direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).

I accept Yinhawangka undertake extensive community and social activities on the licence. Specifically, I find the evidence establishes with sufficient detail that Yinhawangka camp, hunt and fish; visit, care for and maintain places of importance; transmit cultural heritage; collect bush foods and medicine in the area of Barngunha and surrounds; and use wood for spear and boomerang making. Similarly, I accept the collection of ochre occurs within the licence.
Given Mr Archer’s intention is to explore for approximately 10 days per year, using existing tracks and roads to enter and exit the site, it is reasonable to conclude such activities would not be likely to cause substantial interference with the social or community activities of Yinhawangka people, even if Mr Archer was to explore in the area intended to be excluded. Mr Archer states he intends to remove approximately 10 tons of material from the licence area over the life of the grant, which again, is not likely to substantially interfere with those social or community activities. Whether this activity is likely to interfere with sites of particular significance is a different question, which I address in the sections below.

Section 237(b)

The issue the Tribunal must determine in relation to s 237(b) is whether there is likely to be a real risk interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. For an area or site to be of ‘particular significance’, it needs to be of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). It needs to be known, located and have the nature of its significance explained (see Silver v Northern Territory at [91]). If there is evidence that areas or sites of particular significance exist on a licence, I must proceed to consider whether interference is likely. If there is no such evidence, I do not need to undertake this next step of the inquiry (Yindjibarndi Aboriginal Corporation v FMG at [17] and [125]).

Are there areas or sites of particular significance to Yinhawangka?

Barngunha and Mundinya-maya

Yinhawangka contend Barngunha, also called German Rockhole, is a site of particular significance to the Yinhawangka People because it: is associated with dreamtime stories; is a permanent water hole containing an active mythological being; is an increase site; and contains culturally significant resources that continue to be utilised by Yinhawangka on a regular basis. I have outlined this information earlier in this decision so do not repeat it here. The Department of Aboriginal Affairs has registered an artefacts scatter site on the licence. However, Yinhawangka confirm the mythological site of Barngunha is not registered and by that I assume it is meant that Barngunha is not the registered site.
Yinhawangka also identify ‘another rockhole in close proximity (50 metres) to Barngunha called Mundinya-maya’, although they do not say this is a site of particular significance and rather distinguish it as being an important site.
Mr Tommy states, ‘Barngunha is a hidden place which is hard to find. There is an old road from Rocklea to Hamersley that would bypass the area but this is no longer used. This place is special because it is hidden … and kept away from the general public. Knowledge of the area is special to the Yinhawangka people’.
In relation to Barngunha and Mundinya-maya, Mr Cooke states, ‘Both are permanent waterholes that lead into each other. The water is living water that the old people used – that is why we still visit it and have a responsibility to protect it.’ He also describes ‘special pearls … the size of a baseball’ which are found there. He states:
They are very pretty, but you are not allowed to touch them … because they belong to the water serpent. If he [the prospector] takes the pearl he could lose his life …
Yinhawangka People know not to touch the pearls or stones and we know that when we visit the water hole we need to talk to the spirit and greet the place properly.
Yinhawangka provide a substantial amount of further evidence relating to Barngunha’s mythological, spiritual and cultural importance. I do not repeat that information here due to its sensitivity, save to say it is associated with dreaming and the black goanna. I find the evidence clearly establishes that Barngunha is a site or area of particular significance to Yinhawangka. There evidence in relation to Mundinya-maya is less clear and so I do not conclude that it is a site of particular significance.

Ochre sites

I note the evidence led by Mr Cooke in relation to the ochre sites at and around Barngunha (outlined at [14] above). Mr Cooke explains the cultural significance of these sites and locates them near Barngunha within the licence. I determine they are sites of particular significance because of their location and connection with cultural practice of the Yinhawangka People.

Mithigundi and Rockshelters

Yinhawangka also lead evidence in relation to: the birthplace Mithigundi, belonging to a waterhole near Barngunha; and to rockshelters near Barngunha associated with cultural importance. However, insufficient information is provided for me to conclude these are sites of particular significance to Yinhawangka.

Is the grant of the licence likely to interfere with areas or sites of particular significance to Yinhawangka?

Having found that Barngunha and ochre sites are sites of particular significance to Yinhawangka, I now address whether the grant of the licence is likely to cause interference under s 237(b).
I have already outlined the activities Mr Archer proposes to do on the licence at [16]-[18], as well as the issues regarding the RSHA and YHA in relation to the proposed exclusion zone. Mr Archer contends the grant of the licence is not likely to interfere with any sites and areas of significance. He states:
My proposed work on the tenement will be very small. I view this as low risk to Aboriginal Heritage issues since the land has previously been exposed to significant disturbance and a Heritage survey conducted as outlined above. I have no issue with the Traditional owners accessing the tenement if they so desire.
Mr Archer contends there has been ‘significant disturbance’ on the licence. I note the State’s Tengraph Quick Appraisal shows there have been 11 exploration licences (cessation dates ranging from October 1995 to September 2016), one refused exploration licence, and two prior mining leases (one withdrawn in September 1996 and the other withdrawn February 2002). Two temporary reserves also existed prior to the native title regime (one expired September 1961 and the other cancelled in September 1981). All of this tenure overlaps the licence to varying degrees. There are also two pending tenements wholly overlapping the licence: E47/3489 and E47/3490. Presumably, these are the ones Mr Archer refers as ‘losing the ground’ to, should he excise a portion of the licence (see [16]).
It is important to note the Yinhawangka contentions state, ‘The Yinhawangka People are not aware of any previous exploration activities or any other interference to the site of Barngunha which have occurred without the permission of the Yinhawangka People’. In addition, the Tribunal has held that just because an area has previously been disturbed does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see for example Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123])
As the Tribunal noted in Yugunga-Nya People v Monument Murchison, the Tribunal must look at all aspects of a matter, including the intention of the grantee party, and possible future dealings with the licence. In circumstances such as where an explorer does not intend to explore an area, it is a particularly sensitive or important area to the native title party, and agreement cannot be reached, the explorer often excises that area. I have set out situation regarding the excision issue at [17]–[21] above.
Yinhawangka’s evidence suggests that taking stones from the licence area, including from Barngunha, would cause substantial interference, for example, to the goanna which is significant to the dreaming associated with this site. The evidence also indicates that taking stones would be the predominant activity Mr Archer will conduct under the licence. Even if he took steps to restrict his activity to Rocklea Pittado, given the complex nature of Barngunha and its significance to the Yinhawangka people, I am satisfied Mr Archer’s activities may interfere, even if inadvertently, with the sites of particular significance. I am not satisfied the State’s regulatory regime will be sufficient in this matter to preclude interference to sites of particular significance to the Yinhawangka people.

Determination

My determination is that the grant of E47/3488 to Glenn Douglas Archer is not an act attracting the expedited procedure.

Helen Shurven
Member
8 September 2017