Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd - [2003] NNTTA 62

NATIONAL NATIVE TITLE TRIBUNAL

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, [2003] NNTTA 62
(9 April 2003)

Application No: WO02/369

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

ROBIN BODDINGTON AND OTHERS on behalf of the Wajarri Elders

(native title party)

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THE STATE OF WESTERN AUSTRALIA (government party)

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BACOME PTY LTD (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  John Sosso
Place:  Brisbane
Date:  9 April 2003

Hearing Date: 20 February 2003

Representatives -

Native title party:                Mr Cedric Davies, Yamatji Land and Sea Council
Government party:             Mr Clyde Lannan, Department of Industry and Resources
Grantee party:  Mr Terry McMahon, WA Mining Titles

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – legal principles – previous expedited procedure inquiries – evidence - likelihood of direct interference with the carrying on of community or social activities – likelihood of interference with areas or sites of particular significance – likelihood of major disturbance to land or waters – an act which attracts the expedited procedure.

Legislation:Aboriginal Heritage Act 1972 (WA) ss 5, 6
Mining Act 1978 (WA) s 63
Native Title Act 1993 (Cth) ss 29, 44H, 151, 237

Cases:Albert Little & Ors on behalf of the Badimia People/Western Australia/Giralia Resources NL WO01/183, unreported, Deputy President Sumner, 8 March 2002
Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/100, unreported, Member Sosso, 5 July 2002
Cheinmora v Striker Resources (1996) 142 ALR 21
Little v Western Australia [2001] FCA 1706
Michael Page/Grant Robert Archer & Ors/Northern Territory DO01/20, unreported, Member Sosso, 1 February 2002
Paddy Huddlestone & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd & Ors/Northern Territory DO01/137, unreported, Member Sosso, 27 September 2002
Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL WO01/486, unreported, Deputy President Sumner, 11 April 2002
Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd WO02/87, unreported, Deputy President Sumner, 18 November 2002
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith (2000) 163 FLR 32
Western Australia v Ward (2002) 76 ALJR 1098
Wik Peoples v Queensland (1996) 187 CLR 1

REASONS FOR DETERMINATION

Background

On 12 June 2002, pursuant to section 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the government party’) advised its intention to grant exploration licence 20/475 (‘the proposed tenement’) to Bacome Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The proposed tenement is situated 60 kilometres north-west of Cue (centroid - latitude 27^o 02 minutes, longitude 117^o 27 minutes), comprises 61.02 square kilometres and is located in the Shire of Cue. The notice included a statement that the government party considered that this act is an act which attracts the expedited procedure.
On 20 June 2002, Robin Boddington and others on behalf of the Wajarri Elders (‘the native title party’) lodged a Form 4 (Objection to Inclusion in an Expedited Procedure Application) with the Tribunal. The native title party’s Application for Determination of Native Title (WC01/3) was registered by the Tribunal on 9 July 2001. The proposed tenement is wholly contained within the claim area which comprises some 83,029 square kilometres.
Deputy President Sumner issued Directions to the parties in this matter on 8 July 2002. The Directions require the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. Pursuant to those Directions the Tribunal has before it written contentions and related documents lodged by both the native title party and the government party.
On 7 March 2003 Deputy President Sumner, acting in his capacity as delegate of the President, directed that I constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
The native title party in its Form 4 stated that any oral evidence given in these proceedings should be heard “on country”. Nonetheless no formal request for an “on country” hearing was made at the Listings Hearing. Rather, all parties were content for a determination to be made “on the papers” pursuant to section 151 of the Act. The Tribunal is empowered to make a determination on the basis of the written material submitted, however a hearing must be convened if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties – s 151(2). The power to make a determination without a hearing is a broad one. R D Nicholson J in Little v Western Australia [2001] FCA 1706 said (at [55]): “The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of the parties.” I am satisfied, on the basis of the material provided, that a determination can be made without convening a formal hearing.
The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act which, for ease of reference, is set out below:

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

(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

Legal principles

In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439 – 449). I adopt those findings for the purpose of this inquiry.

Previous Expedited Procedure Inquiries in the general area of the proposed tenement

The vast majority of the land and waters comprising the proposed tenement lie to the immediate south of the south-western portion of the Weld Range, although small sections of the north-western and north-eastern segments of the proposed tenement do overlap the Range. Furthermore, the north-eastern portion is intersected by the road to Kalli. The Weld Range is a relatively large landform that commences to the west of the proposed tenement area and travels in a north-easterly direction for at least another 40 km. In the eastern part of the Range is an Aboriginal Reserve and the important sites of Wilgie Mia and Little Wilgie Mia.
Over the past eighteen months the Tribunal has conducted three expedited procedure objection inquiries into proposed tenements located in the general vicinity of the Weld Range. In each case the presiding Member was Deputy President Sumner. For the purposes of this inquiry I have considered the three determinations of Deputy President Sumner because not only is the proposed tenement in the same broad geographic region, but also because the evidence tendered by the native title party in each matter is similar. Having said that, in each case the evidence presented has differed in some key particulars, and it is critical to bear in mind that each inquiry must be determined on the basis of the specific evidence before the Tribunal relating to the tenement area in question. For ease of future reference the previous determinations are as follows:
(a) Walley , which was handed down on 8 March 2002;
(b) Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL, WO01/486, unreported, Deputy President Sumner, 11 April 2002 (‘Hampton Hill’); and
(c) Robin Boddington & Ors on behalf of the Wajarri Elders/Western Australia/ Richmond Resources Pty Ltd WO02/87, unreported, Deputy President Sumner, 18 November 2002 (‘Richmond Resources’).
From a geographic perspective the proposed tenements in each of the abovementioned determinations, as well as in this case, are located north of the township of Cue and either to the south of the Weld Range or with small tenement areas overlapping the Range. The tenement closest to Wilgie Mia was that considered in Hampton Hill. The exploration licence in question was located 55 km north of Cue, and its northern boundary was less than one kilometre from the protected area of Wilgie Mia – see Hampton Hill at [15]. The exploration licence considered in Walley was to the south-east of that considered in Hampton Hill, being located 46 km north of Cue, and Deputy President Sumner found that the Weld Range was located some 5-10 km to the north-west of the edge of the exploration licence – see Walley at 466.
Finally, the exploration licence considered in Richmond Resources was 39 km north-west of Cue, and is to the immediate south of the proposed tenement in this inquiry. Both the tenement considered in Richmond Resources as well as the proposed tenement the subject of this inquiry, are located to the south of the western boundary of the Weld Range and to the south-west of the tenements which were the subject of the Walley and Hampton Hill determinations. In addition the proposed tenement is located quite some distance from Wilgie Mia, whereas those tenements considered in Walley and Hampton Hill (especially in the latter case) were located within a relatively short distance from this important site.

The evidence - General

The government party’s evidence establishes that the underlying land tenure of the proposed tenement is almost entirely comprised of pastoral leases, with an extremely small area of road reserves. The underlying tenure composition of the subject area is as follows:
·Pastoral Lease 3114/589 (Madoonga) – 280.74 ha or 4.6% of the total area;
· Pastoral Lease 3114/570 (Meka) – 131.47 ha or 2.2%;
·Pastoral Lease 3114/796 (Glen) – 5,673.83 ha or 93.0%; and
· Road Reserves – less than 1 ha.
The uncontested evidence of the government party is that there are no Aboriginal communities located in the vicinity of the proposed tenement.
The Aboriginal Sites Register reveals there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) within the subject area.
The grantee party provided no contentions or evidence and indicated that it would rely on the material lodged by the government party. As there is no evidence of the grantee party’s intentions in relation to the proposed tenement I have dealt with this matter on the basis that the grantee party will fully exercise its legal entitlements – see also Michael Page/Grant Robert Archer & Ors/Northern Territory DO01/20, unreported, Member Sosso, 1 February 2002 at [20].

Evidence of the native title party

On 3 February 2003 the native title party lodged with the Tribunal, the affidavits of Ike Simpson, Colin Hamlett and Lance Mongoo.Mr Simpson and Mr Hamlett are registered native title claimants and Mr Mongoo describes himself as a winja/bardani [elder] of the Wajarri Elders claim group.
It is clear that each of the deponents is a member of the native title claim group. Moreover the evidence adduced clearly establishes that these gentlemen have lived in the general vicinity of the subject area for many years and have, over a long period, engaged in community and social activities of the type encapsulated by section 237(a).
In Little v Western Australia R D Nicholson J dealt with the situation of a member of the relevant claim group providing evidence about an area or site said to be of particular significance within the meaning of section 237(b). His Honour pointed out (at [78] - [79]) that a person purporting to speak on behalf of such an area or site must have the requisite “authority” and “qualifications” to do so. Clearly a distinction has to be drawn between evidence of social and community activities and evidence relating to areas or sites said to be of particular significance. In the former case, any member of the claim group is, prima facie, entitled to provide evidence in an expedited procedure objection inquiry. The only issue requiring attention by the Tribunal is whether the person providing the evidence is, in a practical sense, able to give primary evidence of such activities. Such a person is not required to establish that they have any particular seniority within the claim group as the focus of a section 237(a) inquiry is essentially factual and utilitarian. In this inquiry, I therefore find that the evidence of each of the abovementioned deponents can be taken into account when making a section 237(a) assessment.
However, when evaluating the weight to be ascribed to evidence given by a native title holder on areas or sites said to be of particular significance, quite different considerations apply. In Allan Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory DO01/100, unreported, 5 July 2002 I set out some of the considerations which the Tribunal takes into account in such circumstances:
(a)    is the deponent an applicant/objector?
(b)    is the deponent clearly identified in the Native Title Determination Application as a member of the claim group?
(c)    has the native title party lodged other Affidavits, Witness Statements or primary evidence which substantiates the assertions made by the deponent?
(d)    is there any secondary evidence lodged which substantiates the qualifications of the deponent to speak on behalf of areas/sites. For example, is the deponent mentioned in a Land Claims Report, some government document or independent research material?
(e)    is there any corroborating primary material in other Court or Tribunal proceedings which would assist in determining the status of the deponent?
(f)     is there any evidence that the deponent by his/her own actions has demonstrated his/her right to speak for sites eg assisted a Sites Authority, instituted court proceedings to protect sites etc? or
(g)    is the status or qualification of a deponent to speak on behalf of areas or sites contested by any of the other parties? or
(h)    is the evidence of the deponent refuted or cast in doubt by any other material submitted to the Tribunal?
Each of the deponents states that he is an elder and is recognised under traditional Wajarri laws as speaking for and knowing the sites and traditional stories either on, or in the general vicinity of the proposed tenement. The evidence of these gentlemen has not been contested by either the government or grantee parties. Moreover similar evidence has been lodged with the Tribunal in the three other inquiries previously mentioned and in no instance was this evidence rejected on the basis that the deponents did not have the requisite authority to provide it. As previously noted, both Mr Simpson and Mr Hamlett are applicants.
I have no reason to doubt that each of these gentlemen has the requisite authority to speak on behalf of areas or sites of particular significance and I have proceeded on that basis when assessing their evidence for the purpose of this inquiry.

The evidence – Weld Range and Wilgie Mia

An affidavit sworn by Allister Edward Hill, an Anthropologist employed by the Yamatji Land and Sea Council was also filed by the native title party. While Mr Hill’s evidence is not primary and is of a professional nature, I have found it useful and have taken it into account when reaching my determination. In particular I had regard to the extracts of the article by Professor Davidson ‘Notes on the Pictographs and Petroglyphs of Western Australia and a Discussion of their affinities with appearances elsewhere on the Continent’ (1952) 96(1) Proceedings of the American Philosophical Society at pp 82-84 which were annexed to Mr Hill’s Affidavit.
It is clear from Professor Davidson’s article, as well as the evidence of the deponents, that the Weld Range area in general, and Wilgie Mia in particular, are of significance to members of the claim group. In Volume 2 of The Encyclopaedia of Aboriginal Australia (Ed D Horton) the following information is provided on Wilgie (spelt Wilga) Mia:
“A large ochre quarry in the Weld Ranges, central WA. A giant Dreaming kangaroo was killed at the site and his blood became the ochre. The hill where the mine is found is called Nganakurakura. Extensive excavation (some 30 m by 20 m) followed a high-quality ochre stream into rock. Scaffolding, wooden wedges and heavy hammer stones were used in a complex mining operation, which probably has an antiquity of a few thousand years and continued until 1939. Ochre was traded to SA and possibly as far as Qld.”
Mr Hill deposed (at para 18) that in his opinion Wilgie Mia and the Weld Range were places of great cultural significance to Wajarri People and also Aboriginals in other parts of Western Australia. In that regard he referred, inter alia, to the Marlu (red kangaroo) gadaru (mythic) tracks for the region. Mr Hill also deposed (at para 7) the more significant a site, the greater the precaution that must be taken in the vicinity of the site to avoid disturbance.
In Hampton Hill Deputy President Sumner’s inquiry involved a proposed tenement that was situated less than one kilometre from the protected area of Wilgie Mia. Moreover 3 km north of the exploration licence area was a registered site, namely the Wilgie Mia Bora Ground. Also, within the boundaries of the tenement there was a site (Wilgie Creek) on the Aboriginal Sites Register. Deputy President Sumner determined (at [17]) that the exploration licence the subject of that inquiry was located within an area of particular significance (within the meaning of section 237(b)) and that there were likely to be other sites of particular significance within the tenement area itself.
In the earlier Walley determination, Deputy President Sumner inquired into a proposed tenement located south of the one considered in Hampton Hill. He made the following finding (at 466): “the Weld Ranges is a significant area to the native title party in accordance with its traditions and that there are sites of particular significance within them including Wilgie Mia.” The evidence about Wilgie Mia and the Weld Range he considered is substantially the same as that before me in this inquiry. I have reached the same conclusion, namely that Wilgie Mia and the surrounding area is of particular significance within the meaning of section 237(b) whereas the Weld Range area in general is an area of significance. It may well be that other sites within the Range, or much larger areas of the Range, will be found to be of particular significance. However that is a matter to be determined in future expedited procedure objection inquiries and on the basis of the material presented. On the evidence in these proceedings I am not prepared to find that the whole of the Weld Range is a “site rich” area, such that the whole of this landform is of particular significance within the meaning of section 237(b). Not only would such a finding go beyond that made by Deputy President Sumner in Walley but, in addition, such a finding cannot sensibly be made on the material I have before me. The focus of the evidence about the Weld Range is directed towards the eastern section in the region of Wilgie Mia. Certainly there are statements in some of the affidavits about the importance of the western sections of the Weld Range (see eg para 10 of Mr Simpson’s affidavit), and particular sites in that region (eg para 11 of Mr Simpson’s affidavit), but the cumulative effect of the evidence is not such that it would sustain a finding that the whole of this substantial range area is of particular significance. Finally there are three practical difficulties presented with contentions that the Weld Range is an area of “particular significance”, namely:
(a)    no party has clearly defined the geographic extent and outer boundaries of the Range;
(b)    the native title party has not sought to explain what the deponents mean when they refer to the Range. In particular it is not clear if the deponents have a wider or narrower concept of the Range area than that which normal mapping would ascribe to it; and
(c)    at no stage has any of the parties clearly indicated to what extent the proposed tenement overlaps the Range area pursuant to (a) or (b) above – if, indeed, there is a difference between (a) and (b).

In this, as in other inquiries, the Tribunal applies a “common sense” approach to the evidence presented and I have proceeded on the basis that there is, in fact, a slight overlap between the proposed tenement and the Range. Nonetheless, if there was to be a finding that the whole of the Range was of “particular significance” in this or any other inquiry, it would be incumbent on the party so contending to present to the Tribunal and the other parities, specific evidence about the area that would be potentially impacted upon. To contend that a Range area is of “particular significance” without unambiguously explaining the geographic area involved is not helpful and militates against any such finding by the Tribunal.

The Affidavits of Messrs Simpson, Hamlett and Mongoo

As previously mentioned, the native title party lodged with the Tribunal three affidavits from members of the native title claim group. The affidavit of Ike Simpson was sworn at Geraldton on 29 January 2003, the affidavit of Colin Hamlett was sworn at Mullewa on 30 January 2003 and that of Lance Mongoo was sworn at Geraldton on 30 January 2003. Each of these affidavits as set out below, was sworn before a Justice of the Peace.
Affidavit of Ike Simpson
“I, Ike Simpson of 5 O’Brian St, Mullewa in the State of Western Australia, bardani or winja [elder], being duly sworn make oath and say as follows:
1.   I am a winja [elder] recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the area in the Wilgie Mia and Weld Ranges Area and I am an applicant in the Wajarri Elders native title claim.
2.   I have seen a map, which shows the location of tenement E20/475 (“the proposed tenement”). Annexed to this affidavit and marked “IS1” is a map showing the location of the proposed tenement. I am one of the winja responsible for looking after Wilgie Mia Country, which includes Weld Ranges and the tenement area.
3.   I was born at Guguwalya Pool on Boolardy Station on 14 March 1927.
4.   On 17 January 2003 I drove out to the tenement area from Cue, with Gavin Egan an Aboriginal Liaison Officer with the Yamatji Land and Sea Council (“YLSC”) and Ross Boddington another Wajarri Elder. Lance Mongoo and Colin Hamlett also drove out there with Raina Savage who also works for YLSC. We drove around on the tenement area and stopped in a few places. Gavin and I walked around a bit looking at the country. It was very hot that day and Ross was very sick so we weren’t able to stay out too long. We had to get him back home. I understand when he got back he had to go into hospital.
5.   I have been read the affidavit I swore last year in the matter of WO01/486. This affidavit is annexed to this affidavit and marked “IS2”. I have also been read the affidavit I swore in the matter of WO02/87. This affidavit is annexed to this affidavit and marked “IS3.” A lot of the information in this affidavit is similar to what I said in my earlier affidavits – because it is close to the same important places and the country is pretty similar too.
6.   Wilgie Mia and the Weld Ranges, and the country around them including the tenement area, are some of the most important places and areas in Wajarri country. There is a dreaming story about Wilgie Mia and the Weld Ranges. A marlu [red kangaroo] from Kalbarri was speared over towards the coast. It travelled east, following the hills east and went to Barluwidi out near Twin Peaks, then on to Junyidi just out from Meka Station. Then the malu went on to Mt Aubury and then through to the Weld Ranges at Wilgie Mia where it stopped. It stopped there at Wilgie Mia and that is his blood, his wilgi the red ochre, at Wilgie Mia. The Dreaming keeps going along the Weld Ranges, through to Wiluna and Warrakuna. The story connects a lot of different groups of Aboriginal people and it is important to them as well.
7.   Wilgie Mia ochre goes all over the country, it is important because it is used for painting in corroborrees and it is still used today. Wajarri people still collect the ochre from Wilgie Mia and trade it with others. The ochre is used all over the country.
8.   Wilgie Mia and the Weld Ranges are some of the most visited sites and places for Wajarri people. Lots of other Aboriginal people also go out there. Other groups expect Wajarri people to look after that area and would be upset if they did not look after the area. We could get into trouble if the area is not looked after.
9.   On the map you can see lots of areas marked in red that I understand are registered sites, you can see they are all around the tenement area. Also it is right up against the Weld range which is really important country all through there. There are sites all through this country.
10.    The tenement is in the south west part of the Weld Ranges. People know about Wilgie Mia at the other end, but there are also important sites at the tenement end. People know about the red ochre at Wilgie Mia, but there is also yellow ochre in the Weld Ranges and it is found in the south west part of the Weld Ranges right near the tenement area. Yellow ochre is also used for ceremonies and for lots of other purposes by Wajarri people. There is not as much yellow ochre as red ochre. This part of the Weld Ranges is the only place I know where you can get yellow ochre.
11.    There is a sacred site that I know of near the tenement area, on the south side of the Weld Ranges. It is a little hill, and it is a secret site. Only tribal [initiated] men can go there.
12.    There are also corroborree grounds all in and around the tenement area, including an important one right close to the tenement area. It is important that it is not disturbed. Drilling or clearing by mining companies in the tenement area would impact on that place.
13.    When the old people came down for corroborrees there they would camp all along the hills within the tenement area, and all around that area. People would come from all over the Murchison for corroborrees at Wilgie Mia and would camp all around there, including in the tenement area.
14.    People camped and hunted through the tenement area going to corroborees and to Wilgie Mia. When they camped they stayed in the caves and sometimes left paintings or other artifacts there. There are lots of breakaways and caves in the tenement area, so there are lots of other places within the tenement area that are sites that have not been marked on the map.
15.    If there is exploration within the tenement area then these other sites could be disturbed, damaged or destroyed. There has already been a lot of exploration in the area and this has damaged the country and the sites there. This hurts us deep inside as well.
16.    The tenement area is also important to Wajarri people because a lot of wudargis live in the hills and the rockshelters around there. Wudargis are little spirit people. When we drove through the tenement area we stopped and walked around. We saw that there were lots of hills and rockshelters all through there. They are cheeky fellas. The wudargis were there in the old days and I believe they are still there in the Weld Ranges and in the tenement area now. But if people go drilling in or around the hills in the tenement area then that could upset the wudargis, they wouldn’t want to stop there with all the noise and could cause trouble or get scared away.
17.    The tenement area is a good area for hunting and collecting bush foods. It is close to Cue and lots of Wajarris go out there and around that area to hunt and collect bush foods. Especially those Wajarris in Cue, that mob are always out there. It’s a good area to go because there is lots of water around there and it is so close to lots of important places for Wajarri people.
18.    Its good kangaroo and guwiyarl [goanna] country in the tenement area, especially around the base of the hills where there is lots of shade and you can find plenty of kangaroos there. There are lots of rockshelters and overhangs in the tenement and these are good shelter for kangaroos. We saw lots of them when we were out there. We also drove through a lot of washaway country in the tenement area and across several creek beds. In the washaway country there is plenty of feed for the kangaroos and other animals.
19.    It was pretty dry when we were on the tenement area but there is still plenty of bush tucker – after the rain it is easier to see. If you went back after the rain you would see it everywhere. Whitefellas might not know it is there in the dry but Wajarris can find it. You get gurrara trees in the tenement area, you take the seeds from them and crush them up and you can eat them like that or make them into damper.
20.    Coglas, which are like pears, grow in the tenement area, so do bagurda which are a long bean that you can eat raw. Walgu trees grow in the tenement area, you get the nuts off that and eat them.
21.    There is a bush medicine that we call gubaru which has small black berries. You break the leaves off and boil them and use them as medicine, they are good for anything.
22.    If people went drilling out there then that would interfere with Wajarris hunting out there or collecting our bush foods. The animals would get scared away and trees would get knocked down for the tracks. When we were driving and walking around the tenement area we could see the tracks in the tenement area where mining companies have been and cleared years ago. There was also drill holes and pipes just left there from other mining companies. The ground was still all bare around the tracks and there were still no plants growing in the places where the mining companies had been before.
23.    This disturbs the land and the spirits within the land, especially in an area as important as the Weld Range area. When I see this kind of damage, it upsets me. Some of these companies have no respect for our special places or our culture.”
Affidavit of Colin Hamlett
“I, Colin Hamlett of 18 Elder St, Mullewa in the State of Western Australia, winja/ bardani [elder], being duly sworn make oath and say as follows:
1.   I am a winja/bardani [elder] and an applicant of the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area. I know the area in and around the tenement area and have worked on many of the stations around that area. .
2.   I have seen a map, which shows the location of tenement E20/475 (“the proposed tenement”). Annexed to this affidavit and marked “CH1” is a map showing the location of the proposed tenement.
3.   On Thursday 16 January 2003 I traveled to Cue with Gavin Egan and Raina Savage from the Yamatji Land and Sea Council (“YLSC”) as well as Lance Mongoo, Ike Simpson and Ross Boddington who are other Wajarri Elders. On Friday 17 January 2003 we traveled out to the tenement area from Cue. Unfortunately Ross Boddington had become very sick overnight and was unable to leave the vehicle. Gavin, Ross and Ike had to return to town early because of Ross’s condition
4.   The tenement area is in my father’s country. He lived and worked on the stations all through this area – Glen, Madonga, Kalli and other stations around there. He used to go droving cattle all through here, crossing this country, with old Dougie Oliver and others. He also worked as a ‘dogger’ all through this area, traveling across the country in a horse and cart, trapping wild dogs. I used to go with him, droving and dogging and working on the stations all through my childhood and younger years. I spent all my school holidays out there with him, and he taught me the songs and stories for those places, and showed me the important sites and places for our people.
5.   The tenement area is in a very significant and sacred area for Wajarri people. The top part of the tenement runs right up to and along the southern part of Weld Ranges which is a very sacred area for Wajarris. The Weld Ranges is a ‘no-go’ area – which should not be disturbed. It is a place of very great signficance to Wajarri people and must be protected.
6.   The tenement is not far from E20/0482 an exploration tenement held by another mining company Hampton Hill NL which also runs very close to the Weld Ranges. Last year I swore an affidavit in the matter of WO01/486 about that area which talked about the importance of the Weld Ranges. A copy of that affidavit is annexed to this affidavit and marked “CH2”. I swore another affidavit in the matter of WO02/87 against Richmond Resources Pty Ltd which is annexed to this affidavit and marked “CH3”. Much of the information in this affidavit is similar to what I said in the Hampton Hill and Richmond Resources affidavits because it is close to the same important areas.
7.   There is a dreaming story about the Weld Range, this story is about the malu, red kangaroo who came from the coast and all the way to the Weld Ranges. The ochre that you find at Wilgie Mia is the blood from the kangaroo.
8.   The tenement area is also very close to Wilgie Mia which is a restricted site. You need a permit to go there. It is a registered site because it is recognized as a particularly significant site for Aboriginal people. Wilgie Mia and the Weld Ranges are some of the most important sites for Wajarri people. Wilgie Mia is important not just to Wajarris but to Aboriginal people all around the state, to Wanmalas in the desert and Marlbas in the Pilbara. It is one of the most important areas in Wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert. I was taught about the stories from the area by my father and other Wajarri elders.
9.   Wilgie Mia is the oldest mine in the world. It is recorded in history books and recognised as the oldest working mine by white people as well as Aboriginal people. The ochre from there is still used for all kinds of ceremonial purposes, by Aboriginal people everywhere. Ochre from Wilgie Mia is traded all across the desert and has even been found in the eastern states.
10.    A couple of the largest and most important ceremonial areas in Wajarri country are located right near the tenement area. There is a law ground right at the top of the tenement in the Weld Ranges. I know about it because it is the place of my own father’s initiation. My father went through the law here and taught me all about this country. There are many important ceremonial places in the Weld Ranges. Because Weld Ranges and Wilgie Mia were such important sites people would come from all over to corroborrees and ceremonies at this place. There would be all kinds of people, from the wanmalas in the desert and Badimias and all different Wajarri people, as well as coastal people coming to the ceremonies there. When people came for law business they would camp all along the Weld Ranges and in the tenement area.
11.    I can see on the map marked as Annexure “CH1” the areas marked by cross-hatching that are sites registered with the Department of Indigenous Affairs. You can see that the tenement is surrounded by registered sites. However, I am aware of lots of sites, including ceremonial grounds and camping grounds that are located within and around the tenement area that are not marked as sites on this map. In the past Aboriginal people did not always tell white people where their sites were because often they would be damaged or destroyed.
12.    Years ago my brother dug up a boomerang whilst we were camping in the Weld Ranges. He was digging a hole to bury rubbish. The boomerang must have been left by one of the groups of old people camping there. Often after ceremonies people would bury important items and it is important that these are not disturbed. If he dug one of these up then there must be lots more artifacts buried in and around the area. If these are disturbed or damaged then this would cause a lot of problems for Wajarris and our country would be hurt.
13.    The tenement area is very good hunting country and is important for Wajarri people because it is used frequently as a hunting and camping area and a place to collect bush foods, especially by the Wajarris living in Cue. The Cue mob are always going out to get kangaroos from around Cue and including the tenement area.
14.    While we were out on the tenement area we saw lots of kangaroos, big fat ones. The tenement is a good place for wild life. When we drove through the tenement area we stopped in a number of places and walked around looking at the country. We saw lots of places where kangaroos and other animals live. There are many breakaways in the tenement and these were full of rock overhangs and small caves which provide lots of shelter for the animals.
15.    Driving and walking around the tenement area we also saw rock holes and lots of places in the rocks where the water lies trapped in the rocks after the rain. There are a number of creek beds running through the tenement and there are soaks along there. Even though it was very dry there is always water under the ground, that is why there were so many kangaroos there.
16.    The soaks make it good for camping too. In the old days the Old people had to rely on water from the soaks in the dry times – that’s why they camped in these places. Even today we camp where the water is. Whitefellas might think that there’s no water – but kangaroos and Blackfellas know where to find water.
17.    The tenement is close to Cue where lots of Wajarris live and has a good road out from Cue which makes it easy to access. You can just drive straight out to the tenement area along the station road, it runs right through the tenement. People from Cue go out there with their families, teaching the kids.
18.    There are lots of water holes out that way which makes it a good place to take kids. There is a big rockhole beside the road in the tenement area, and lakes in the clay pans just to the north. Wajarries camp up there – not many other people know about it. Also at Poona to the south of the tenement there is another water hole. All the waterholes around the tenement area makes this area particularly popular for local Wajarris – especially in summer. People bring their kids out for a swim and eat their dinner there and hunt or camp in and around the tenement area.
19.    The hunting is good in the tenement area because the animals like the water too. There are good water sources on all sides of the tenement area as well as the water in the tenement area. There’s kangaroos, guwiyarl [goannas], lots of emus out there too.
20.    This area has lots of bush tucker in it and Wajarri people, especially the Cue mob, go out there regularly collecting it. I talked about many of these types of bush foods in my other affidavits and the same kinds of foods are found in the tenement area. Within the tenement area there are gurarah which are a type of tree. The seeds can be crushed to make damper. You can find bardies, which are a very good medicine bush and you can make warlanu [boomerangs] and gurndi [fighting sticks] from the branches.
21.    When we drove around on the tenement we saw lots of bush food plants. There are Mulgas which are good for making wirrangu [spears] and warlanu. Beefwood trees also grow in the tenement area and you can use those to make urndas [shields]. There’s a very important medicine bush called gandilangu. These are very important for Wajarri people, it’s a very good medicine bush which has lots of uses. There were gumburadah, sort of like gooseberries, and bibins too which are another type of bush tucker. There were bobola trees as well. You smash the seeds up and make a paste and eat it. There is also lots of gurara trees and walla wallas, all good bush tucker all over this tenement.
22.    There was also wirrilgula - they have big red berries, and wummas they’re little red ones. There was also nyunungura, they have little pink berries the size of a nut and you suck on them when they’re ripe. And there’s jalyga – you crush the seeds up or you can just eat them off the bushes.
23.    There are also other kinds of bush foods that we saw on this tenement that don’t grow in other places. We drove to the north of the tenement on the way up to Mindoola onto a big clay pan where buli-buli grows. Buli-buli is a very important bush food which only grows in certain places. It is a kind of seed grass, like wheat, with long stems that get covered in seeds. You grind the seeds and make a kind of flour that you use to make damper. It tastes better than damper with flour. This area is also recognized as an Aboriginal site because buli-buli is an important food for us.
24.    In the tenement area we also found lots of ngalgu – which are like spring onions, little bulbs that you can dig up. They grow all through there.
25.    The area in the north is also good for getting emu eggs. There are lots of emus up there and it is wanderie country which makes it easier for tracking the emus. – people go that way hunting them and collecting the eggs. My cousin Lance (Mongoo) goes up there getting emu eggs for carving.
26.    Wilgie Mia and the Weld Ranges area some of the most important places in Wajarri country and if they are not looked after or people do the wrong things there can be serious trouble.
27.    When I was a young boy and would dig sand up in the ground, my parents or any other adults would push the pile of dirt down and stop me from digging saying that I was killing people by burying them. This is part of our traditional Wajarri beliefs. If people dig up the ground near Wilgie Mia and the Weld Ranges, then this could affect those sites and have serious effects for Wajarris and other tribes.
28.    There are lots of wudajis and mundungu [spirit people] that live in the tenement area. They live in the hills and the caves of the tenement area. That’s their home. These people are little hairy men/spirits. If wudajis get upset then they upset Aboriginal people and they will make you get sick, sometimes they give people a flogging or they throw them out of bed and they’re quite cheeky and will tip water out of containers, burst water bags or put holes in water containers.
29.    If there are holes drilled or bush cleared within the tenement area then wudajis and mundungu could get upset and they could cause problems for us Wajarri people but also people that are doing exploration work in the tenement area.
30.    We were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld range area and we need to prevent these from being damaged.
31.    Some Wajarri people won’t camp in the tenement area by themselves or when there’s only one or two people by themselves, and will only camp there in large groups because there are so many wudajis and mundungu there.
32.    One time I camped in the Weld Ranges a few years ago with another old Wajarri man and a white person, the other Wajarri man I was with kept the fire going all night and wouldn’t sleep because he was scared of the wudajis there.
33.    I have seen the damage that mining activity can have on our country. If the companies begin mining it is much worse. I went out to an area near Yalgoo last year to check on the impact that the mining activities were having on our country. When we got there we saw dead and dying plants all the along the area where there was run off water. This water went right near the Sanford River and it would have seeped into the river. We could see a lot of dead fish just down from there. Seeing that made us angry, as our country is being damaged by these mining companies all the time. All around the Cue area you can see the damage from mining activities. They dig up the country and poison it and make no effort to clean it up.
34.    When we go bush we see the damage that mining companies do everywhere, they rip up the dirt all over the place, all through the Murchison. They cut tracks everywhere, knock down trees, put dumps in the ground and don’t clean up once they’ve gone. The tracks that they grade last for years and years. They remove the trees and plants from there and when rains come they run along the tracks and cause erosion. When we drove around the tenement we could see the damage left from previous exploration. There were drill holes and bores – all uncovered. And there were tracks everywhere. There was lots of erosion where tracks had been made and especially along the creek beds.
35.    I believe that further exploration activities within the proposed tenement area will disturb the country greatly. The ground and vegetation would be disturbed by the creation of more tracks through the tenement area and the drilling could disturb the Wudajis in the Weld Ranges and the sites around the tenement area. If there are drilling rigs in the tenement area then we would not want to go and hunt or camp there. The animals that live in the area would be scared away and we wouldn’t to camp there with drill rigs going or other exploration activity. The tracks cleared for an exploration activity would knock down important plants for us and it would not be safe to shoot kangaroos with other people in the area. If people go drilling in the tenement area then that could upset the Wudajis in the area and they would then go and cause trouble.

Affidavit of Lance Mongoo
“I, Lance Mongoo of Unit 4A Howes St Geraldton WA, in the State of Western Australia, winja/bardani [elder], being duly sworn make oath and say as follows:
1.   I am a winja/bardani [elder] on the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area.
2.   I know the area in and around the tenement area and was born in Cue and have lived most of my life in and around Cue and the general area of the tenement. I moved back into Geraldton just before Christmas.
3.   I have seen a map, which shows the location of tenement E20/475 (“the proposed tenement”). Annexed to this affidavit and marked “LM1” is a map showing the location of the proposed tenement.
4.   On 17 January 2003 I drove out to the tenement area with Colin Hamlett who is another Wajarri Elder and my cousin, and Raina Savage from Yamatji Land and Sea Council (“YLSC”). There was another car driven by Gavin Egan from YLSC with two other Wajarri Elders – Ike Simpson and Ross Boddington, that also drove out there. Ross became very sick – he couldn’t walk or leave the car and they had to go back early.
5.   I know the tenement area really well. It is my father’s country. He is one of the main people for this country. He was born in this area and he worked on these stations – Madonga, Glen, Kalli and others. He knew this country better than just about anyone. He worked the country all through this area and I went with him. We used to walk or ride through the country all around there including the tenement area, and he told me about the country and the stories that go with it.
6.   I also know the country because I lived and worked out there myself for many years. I lived and worked on Madonga and Kalli stations for many years doing station work and shearing. We would travel all through that area around the Weld Ranges and the tenement area working on the stations.
7.   The tenement area is located in very important country for Wajarri people. There are registered sites on all sides of the tenement area, you can see them on the map marked “LM1”. There are also lots of sites in and around the tenement area that are not registered. There is a law ground right at the top of the tenement area near the Weld Ranges. Colin’s father went through the law there.
8.   The tenement is right up against the Weld Ranges which is a site and area of great significance to Wajarri people. There are lots of sites within the Weld Ranges. It is significant because of the wilgi [red ochre] there and the dreaming stories about the ranges.
9.   The tenement area is also close to Wilgie Mia, which is another very significant site for Wajarri people. You get good ochre from Wilgie Mia, people use it all over Australia and it gets traded across Australia. It’s good ochre because it doesn’t burn your skin and it’s still used today in ceremonies and for dancing.
10.    People would come from all over for the ceremonies here and camp along the way and around the area. They camped all through here – including in the tenement area. The road from Kalli station runs right through here, people come that way from the east to get to Wilgie Mia and the Weld Ranges for Corroborrees and to collect wilgi.
11.    If people go drilling in the tenement area then this could interfere with Wilgie Mia, because it is all connected, the wilgie [blood] goes all through there.
12.    The tenement area and the Weld Range is very important for Wajarris and also for Aboriginal people all around Australia. It is important because of Wilgie Mia and the dreaming stories about the Weld Range. The Weld Range is connected to the hills at Yalgoo and also to the hills at the west side of Wiluna. The dreaming goes out to the desert, the mob in the desert have the story about the sturt pea that comes from the Weld Ranges. Even the people at Yallatha in South Australia have a dreaming that comes from the Weld Ranges. If the Weld Ranges and the sites in and around the tenement area are interfered with then the others sites that share the same dreaming, such as those near Yalgoo, Wiluna and Yallatha may also be interfered with.
13.    There are lots of Wudajis [spirit people] that live in the Weld Ranges and in the hills and caves in and around the tenement area. Wudajis are spirit people that live in the area and they can be cheeky if you upset or disturb them or if you go too close to where they’re living.
14.    A while ago my wife and I were camping with our 3 boys. We had a lot of fresh meat there, some cooked, some not. We went to bed that night and in the morning the cast iron pots full of cooked meat had been pulled off the fire and the meat was taken. The kangaroo tails on the car bonnet were still there.
15.    The Wudajis must have come and taken all the meat. They do things like that sometimes, they’re very cheeky. They will take cooked meat but they mustn’t have taken the kangaroo tails because they weren’t cooked yet.
16.    There were no tracks or anything around the pots, it was like something had come out of thin air and taken the meat. My wife hasn’t been camping back in that place again since then, but I still go out there.
17.    The tenement area is a very good place for hunting and getting bush foods, especially the base of the hills. It is also a good place for camping and Wajarris are always going there. The tenement area is an important area for Wajarri people.
18.    I’d say there would be about 100 Wajarri people living in Cue, which is only about 60 kilometres from the tenement area. For us Cue Wajarris bush foods are an important part of our diet, mainly we eat kangaroo meat and other bush foods. Kangaroos are part of our traditional diet. I love to get out in the bush and get a feed of kangaroo. When we stopped in Cue I stayed with my relatives so I could have a feed of kangaroo. Someone from Cue had been out shooting and I brought some kangaroo back home with me. Wajarri families in Cue go out kangaroo hunting about once every week to get enough kangaroo meat for the family to last the week. When this runs out someone else will go out and get some more.
19.    The tenement area is very good hunting country and is easy to get to from Cue because the road runs straight to it and the station owners at Glen Station, where the tenement area is located, are good to us Wajarris and they don’t try to stop us going out there. Some station owners around Cue don’t like us hunting on our own country. They give us a hard time when we go out shooting.
20.    During school holidays, the Cue Wajarri families will be out camping and hunting on most days. We take the kids out to teach them about the area, about the language for things, the stories for the country and show them how to survive in the bush, so they can always get a feed or some water.
21.    When we go camping out there we will often go and try to get a kangaroo, or a guwiyarl or bangara [goanna] or bush turkey in the tenement area and around the base of the hills there. Bungaras are deadly eating. There are lots of different kinds – big black ones and yellow ones – all through these hills. We also saw lots of kangaroos when we were driving through the tenement, nice fat ones.
22.    There is lots of water in and around the tenement area so it is a good place to hunt. It is also good for taking kids to swim and spend time in the bush. It is really close to lots of important places and sacred sites – so you can show the kids and tell them the stories that go with them. I have been out to the tenement area very often with my own family camping. When my kids were growing up I would bring them out here and teach them about the country. I still bring other kids from Cue out here and teach them stories and show them important places – usually on long weekends I bring a big mob out and spend a few days.
23.    Just north of the tenement area are some big clay pans. They fill up with water and become shallow lakes. There is a road that runs up that way up to Mindoola. I often go that way picking up emu eggs. I track the emus to find the eggs and make carvings on the shells and sell them.
24.    I have been to these clay pan lakes many times and camped out there. I remember spending Easter weekends there with my family. It is a good place to bring kids. There is lots for them to do and lots of things to show and teach them. It’s right near the Weld Ranges which is really important to us.
25.    The clay pans are full of bush food. The clay pan on the east side is where buli-buli grows. I drove across there with Colin and Raina to see the buli-buli when we went out to the tenement. Buli-buli is like wheat, Wajarris grind the seeds to make flour for damper.
26.    There are lots of ngalgu in the tenement area – a kind of small onion that Wajarris really like. There are also coglas and honey ants.
27.    The Kalli road runs right through the tenement. There is a big rock hole right near the road – it is dry now – but I have never seen it dry before. I have often come out here with my kids so they could have a swim and we’d eat our dinner by the pool or camp out here. I know that lots of Wajarris from Cue come out to this rock hole to swim, and eat and camp. They also come out to swim in the water at Poona which is south of the tenement right near here. When they come out here they hunt and camp in and around the tenement area.
28.    The tenement area is full of ngungas, rock holes and caves. These caves are important to us. The old people camped in some of these caves and did ceremony and art in some of them. In many of them you can find rock art or artifacts from when Aboriginal people have been here before you. There are so many that you can’t say where they all are. You would have to walk around for a couple of days looking at all the places to show where the sites are.
29.    These rock art sites and artifacts are important for Wajarri people today because they are part of our dreaming, our culture and our stories for this area. They show our connection to this country. We bring our children out here and show them these sites and tell them the stories that go with these places. They are part of our culture and heritage that we need to protect and pass on to the next generation.
30.    The whole tenement area is an important site for aboriginal people because the whole place is used for camping, for hunting and for ceremony. Wajarri people camped here in the old days and we still use this place for camping and hunting and visiting sites today. It is an important part of our country and we still have strong connections to it. It is important because it is part of our history but it is also important because it is part of how we practice our culture today.
31.    I have been shown the affidavit that I swore in WO01/486 and it is annexed to this affidavit and marked “LM2” and the affidavit I swore in WO02/87 and it is annexed to this affidavit and marked “LM3”. Lots of the things I said in those affidavits also apply to this tenement area. In particular the tenement area is a very good place for hunting and getting bush foods as well as camping, and Wajarris are always going there.
32.    When we go to the tenement area we go straight up the Glen Road and then turn off onto the Kalli Road. It’s a good road and it runs straight through the tenement. Marked on the map annexed as Annexure “LM1” is a copy of the route we use to get out to the tenement area. There are registered sites just to the east of the tenement including a rockhole and breakaways. You can keep going through the tenement to these sites and on to Kalli and Pia or go back the same way to Cue.
33.    Other companies have done drilling around the tenement area before. When we were driving around we saw drill holes and bores in the ground and pipes from other companies who had been there before. They just leave everything. You can see the tracks that they have left. In the wet, the tracks get covered with grass, but when we were out there it was very dry and you could see them clearly. The ground was all eroded around where the tracks were.
34.    It is good country. I have seen the damage that exploration activity can do to our country. The mining companies leave the damage for us Wajarris. In closer to Cue where I used to camp there are bores and drill holes all over the old tenements and they’re not covered over. I’ve seen dogs chasing goats and those goats disappear down those holes. Guwiyarls smell the water and they slip and go straight down and then they are stuck and die. I have seen this many times. The ground and vegetation is disturbed by making tracks through the tenement area and the drilling could disturb the Wudajis and the sites around the tenement area in the Weld Ranges.
Each of these affidavits is similar in content to those sworn by the respective deponents and lodged in Walley, Hampton Hill and Richmond Resources. In Hampton Hill Deputy President Sumner made a similar observation about the affidavits before him (at [10]). As in Hampton Hill the affidavits before the Tribunal are in large part identical to those originally considered by Deputy President Sumner in Walley, although there has been some re-ordering of paragraphs and minor changes in wording and emphasis. Nonetheless each of the affidavits does contain unique information pertaining to the particular land and waters comprising the proposed tenement. It is not surprising that the affidavits are very similar in each of the inquiries due to the fact that the tenements in question are all located within the same general geographic area of Western Australia. I have drawn no adverse inference from the fact that the affidavits in each of the four inquiries are similar and I am satisfied that each of the deponents has turned their mind to the relevant land and waters and is not merely deposing to a formulaic repetition of statements made in other inquiries, that are not germane to the issues to be considered in this matter: see also Paddy Huddlestone & Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd & Ors/Northern Territory DO01/137, unreported, Member Sosso, 27 September 2002 at [12]. Moreover, the fact that these affidavits are similar to previous affidavits sworn by the deponents has been explicitly acknowledged by the native title party, and in each case the deponent has annexed to his affidavit a copy of some of the previous affidavits lodged in other Tribunal inquiries.

Community or social activities (s 237(a))

The native title party has provided the Tribunal with evidence about community and social activities in the general area of the proposed tenement, including details of hunting, camping, visiting country, collecting bush foods and medicine, passing on cultural information and imparting traditional knowledge.
The area north, north-west and north-east of the township of Cue is regularly accessed by members of the native title claim group for hunting, gathering and related activities. Mr Mongoo deposed (at para 18) that there are about 100 Wajarri people living in Cue and that native title holders regularly (he mentioned weekly) go to the subject area to hunt kangaroos. He also deposed (at para 20) that during school holidays Cue Wajarri families camp and hunt most days.
The Tribunal was presented with evidence that the subject area is accessed by native title holders for the purpose of hunting kangaroos, goannas and bush turkey [affidavit of Mr Mongoo at para 21 and for the hunting of kangaroos see esp. Mr Simpson at para 18]. It was also said that the area sustains plentiful bush tucker and medicine including gurarah, bardies, mulga, gandilangu, gumburadah (gooseberries), bibins, bobola trees, wirrilgula (large red berries), wummas (little red berries), nyunungura, jalyga, ngalgu (spring onions) – [see affidavit of Mr Hamlett at paras 20-22 and 24], coglas (pears) and bagurda (long bean) [see affidavit of Mr Simpson at para 20]. Mr Hamlett also deposed to other bush foods that grow near to, but outside the subject area, including buli-buli (at para 23), and he further deposed that emu eggs are collected in area to the north of the proposed tenement (at para 25).
Having said that, it is also now clear, having had the benefit of perusing the affidavits that each of these gentlemen has presented in previous inquiries in this general geographic region, that the subject area is not unique in being host to a plenitude of animals and vegetation. For example, just as Mr Simpson deposed that the proposed tenement is “a good area for hunting and collecting bush foods” (at para 17), he also identically described the tenements the subject of the Walley (at para 13 of his affidavit in that inquiry), Hampton Hill (at para 12) and Richmond Resources (at para 5) inquiries.
Mr Simpson deposed in both this inquiry and in Richmond Resources that the area of the respective tenements was good kangaroo and guwiyarl (goanna) country – see para 18 of his affidavit in this inquiry and para 6 of his affidavit in the Richmond Resources inquiry. Likewise he said that both areas contained “washaway” country where there was good food for bush animals (paras 18 and 6 respectively). Both tenement areas are said to contain coglas, bagurda and walgu trees (paras 20 and 9) as well as the bush medicine plant gubaru (paras 21 and 10). A similar comparative exercise is also possible for evidence given by Mr Simpson and the other deponents with respect to the tenement areas considered in Walley and Hampton Hill. However the issue is that the unquestioned evidence of these senior traditional owners is that while the land and waters the subject of this inquiry are accessed for social and community activities, so too is a much wider geographic region. The likely impact of exploration on such activities in this tenement area cannot be realistically assessed by ignoring the wider geographic and social context as explained by the traditional owners in the other recent expedited procedure objection inquiries. In short, the area of the proposed tenement while rich in food for native title holders, is not unique. Rather, it is the case that this general region of Western Australia would appear to be well accessed by members of the claim group and home to animals, bush food and bush medicine.
Indeed if one considers evidence also given by other traditional owners in the area to the immediate south of Cue with respect to animal life, bush foods and medicine, a similar picture emerges. Thus in Albert Little & Ors on behalf of the Badimia People/Western Australia/Giralia Resources WO01/183, unreported, Deputy President Sumner, 8 March 2002 evidence was given by Mr Albert Little about a tenement located 39 km south of Cue. Mr Little deposed that (at para 6) “the area of the proposed tenement and surrounds is good hunting ground. Badimia people hunt kangaroo, bungarra (goanna), emu and bush turkey and also collect emu eggs there.” He further deposed (at para 10):
“There is a lot of bush tucker in the area of the proposed tenement and surrounds. We collect Boguda nuts there. … We collect Bulya-Bulya berries which make really good eating and also Biljars which is like a cane grass which you can eat. We also collect Bimba Gum for eating and Bardi Tree seeds which you can crush and make into a flour. We dig at the roots of Bardi Tree’s to get grubs for eating.”

Clearly the wider geographic region around the township of Cue supports a vibrant community life, and the undisputed evidence given by traditional owners in a number of inquiries illustrates that the area under consideration in this inquiry is neither unique in being rich in animals and flora, nor unique in the fact that it is accessed by members of the claim group for traditional purposes.

As mentioned earlier, the Weld Range and Wilgie Mia are important places for the members of the claim group. A considerable amount of evidence was given by the deponents about the spiritual significance of Wilgie Mia in particular, and also the Weld Range. While most of the evidence was focused on the Wilgie Mia part of the Range, it is clear that the Range itself is also significant to the claim group.

Evidence was given by the deponents that the proposed tenement is the home of spirit people (wudajis and mundungu), and that these spirit people would be disturbed and upset by exploration activity. Mr Hamlett deposed (at para 29) for example, that upsetting the spirit people would cause problems not only for the Wajarri People but also for the explorers.
When making an assessment pursuant to section 237(a) regard must be had to the decision of French J in Smith v Western Australia (2001) 108 FCR 442. His Honour rejected (at 451) a submission by the applicant in that case, on the grounds that if there is a collision course possible at any time or any place between the carrying out of any of the community and social activities and the exercise of rights pursuant to the future act, if each party exercises its rights to the full, then there is a direct interference with the activities of the applicant even though such collisions might be infrequent and may sometimes be avoided. French J held that the notion of “direct interference” in section 237(a) involves an evaluative judgment that the future act is likely to be the proximate cause of the apprehended interference. Moreover, the interference must be substantial in its impact upon social and community activities. The evaluation is also contextual and not carried out in isolation. The Tribunal is entitled to have regard to other factors which so affect the relevant activities that the impact of the future act is insubstantial. In particular the Tribunal is entitled to have regard to constraints already imposed by third parties and external regulation. Subsequently in Little v Western Australia R D Nicholson J followed (at [72]) the general approach to the interpretation of section 237 outlined by French J.
The Tribunal is required, pursuant to section 237(a), to assess the likelihood of the future act directly interfering with community or social activities “in relation to the land and waters concerned.” In short, the Tribunal’s assessment relates to the tenement area. As French J explained in Smith v Western Australia, section 237(a) contemplates that the grant of the future act may in fact interfere with such activities. The Tribunal’s task is not concluded by determining that there is a likelihood that the grant of the future act will have an impact on social or community activities. Rather, as French J held, the Tribunal is required to assess whether the likely direct impact on such activities will be substantial and not trivial. When undertaking such a task it is germane to ascertain if community and social activities take place over a wide region and if the tenement in question comprises only a small proportion of the total area. It is also relevant to ascertain if the surrounding area is also rich in food and substances such that the area in question is either not unique or does not have any particular or special importance in this regard. All of these things sensibly have key importance when the Tribunal weighs up whether exploration is likely to have a substantial impact on community or social activities within the tenement area. In short while the inquiry looks at the impact of the proposed future act on the land and waters comprising the tenement in question, the degree of impact can be influenced by evidence of community and social activities outside of the land and waters being inquired into.
I have taken the following factors into account in assessing whether there is a likelihood that the grant of the proposed tenement will result in interference as prescribed in section 237(a):
(a)     no Aboriginal communities reside on or near to the proposed tenement. It would appear that approximately 100 members of the claim group reside in Cue, but this township is located some 60 km to the south-east;
(b)     the proposed tenement is wholly contained within three pastoral leases. I accept that at least so far as the Glen Pastoral Lease is concerned, there are no significant restrictions placed on traditional owners accessing the property – see affidavit of Mr Mongoo at para 19. The situation pertaining to access by traditional owners to the Madoonga and Meka pastoral properties is unclear. French J pointed out in Smith v Western Australia that, when assessing the likelihood of direct interference with community or social activities, the Tribunal is entitled to have regard to constraints already imposed or in place. To the extent that a pastoral lessee (or persons authorised by the lessee) lawfully exercise rights granted, such activity prevails over any native title rights and interests – see s 44H(c). Toohey J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 (at 133): “If inconsistency is held to exist between the rights and interests conferred under statutory grants, those rights and interests must yield, to that extent, to the rights of grantees.” More recently the legal status of certain Western Australian pastoral leases was the subject of consideration by the High Court in Western Australia v Ward (2002) 76 ALJR 1098 [2002] HCA 28. A majority of the Court held that the grant of pastoral leases in Western Australia had the effect of denying to native title holders the continuation of a traditional right to say who could or could not enter onto the land. In addition as Gleeson CJ, Gaudron, Gummow and Hayne JJ held (at 1147/193): “To the extent that the grants of pastoral leases involved the grant of rights and interests not inconsistent with native title rights and interests in relation to the land or waters covered by the pastoral leases in question, the rights and interests granted, and the doing of the activity in giving effect to them, prevailed over the native title rights and interests but did not extinguish them.” For the purposes of this inquiry I had regard to the fact that the community and social activities of native title holders are already subject to the lawful activities of the grantees of Pastoral Leases 3314/570, 589 and 796;
(c) the evidence of the native title party is to the effect that the subject area has previously been subject to mining (and) or exploration activities. It is suggested that previous mining or exploration activity has had an ongoing intrusive impact on the environment of the tenement area – see eg Mr Simpson at para 22, and Mr Mongoo at para 33. Yet none of the deponents actually deposed that any of the previous mining or exploration activity interfered with community or social activities. While Mr Mongoo deposed (at para 34) to previous mining activity around Cue resulting in open bore and drill holes which pose a risk to wildlife (and indeed humans), no evidence was adduced about such intrusive (and dangerous) after effects of mining on the subject area. In any event, in the context of a section 237(a) assessment, the focus of the Tribunal is to ascertain the likelihood of direct interference with community or social activities. While it may be the case that previous exploration or mining activity has impacted on the environment, the issue not addressed by the evidence is whether that exploration or mining had a direct impact on any of the community or social activities of native title holders at the time it was being carried out. Having regard to the different regulatory regime now in place governing environmental issues, the main focus of a section 237(a) assessment in regard to previous exploration or mining activity, is to ascertain whether that activity impacted on the activities of native title holders. As indicated, there is no evidence by any of the deponents about the specific impact of previous mining and exploration activity except in a very broad sense about subsequent environmental impacts. I infer from this lack of information, despite the fact that each of the deponents resided in this general area for many years, that previous mining or exploration activity in the area of the proposed tenement did not have a major and deleterious impact on the community and social activities of members of the claim group;
(d)    despite the fact that the grantee party has declined to provide contentions or evidence to this inquiry, the Tribunal is entitled to presume that it will act lawfully in exercising rights given under the exploration licence – Western Australia v Smith (2000) 163 FLR 32 at 51-52 per Franklyn DP and Ward v Western Australia (1996) 69 FCR 208 at 228 per Carr J;
(e) the evidence provided in this inquiry about hunting, gathering and related activities has to be considered in light of the evidence by the same deponents in related expedited procedure objection inquiries in this general area, and which evidence was in fact referred to, and relied upon, by the native title party. The evidence of the native title party is that while the subject area is rich in natural resources, it forms part of a much wider geographic area which is regularly accessed by members of the claim group. The Tribunal has been able to gain a much wider appreciation of the overall social and geographic dimension of the community and social activities than may otherwise have been the case. Essentially what this evidence illustrates is that the land and waters of the proposed tenement comprise but a small part of a much wider geographic area which is regularly accessed by native title holders when carrying out community and social activities. It is clearly open to the Tribunal to take into account when making a section 237(a) assessment, the limited area of a tenement in relation to the overall area upon which a native title party’s activities are carried on – see Smith v Western Australia at page 450;
(f)     the Tribunal accepts the undisputed evidence that members of the claim group engage regularly, and possibly in considerable numbers, in accessing the country around Cue for traditional activities. In addition, I also accept the undisputed evidence of the deponents that part of those activities involve access to, and utilisation of, the natural resources of the subject area;
(g) I do not accept a bald assertion that simply because native title holders access a given area for community and social activities that this inevitably results in a finding that there is a likelihood of major disturbance within the meaning of section 237(a). Such a hypothesis is overly simplistic and fails to properly take into account the evaluative and contextual assessment exercise explained by French J in Smith v Western Australia;
(h)    the legal regime governing the granting of exploration licences in Western Australia has been comprehensively discussed by Deputy President Sumner in Walley at 449 – 453. I have, nonetheless, specifically taken into account the conditions that are imposed on exploration licences pursuant to section 63 of the Mining Act 1978, including the obligation imposed on explorers to make safe, all holes, pits, trenches and other disturbances to the land surface which occur when exploring for minerals and those which, in the opinion of the State Mining Engineer, would be likely to endanger the safety of any person or animal. I am satisfied that the legal obligation imposed by this section, renders it unlikely that the social and community activities of native title holders would be likely to be directly interfered with in the manner that previous unsafe mining and exploration practices in this general area continue to cause; and
(i)   the proposed tenement comprises an area of slightly more than 61 square kilometres. The native title party in its Contentions says that the “tenement is relatively large” – at para 23A. The area of the proposed tenement is clearly not small, and I have no evidence before me that the type of hunting and gathering activities deposed to are either focused on particular geographic areas of the proposed tenement, or are otherwise of such a nature that general exploration activities would, in the context of this wide area, be likely to cause major disruptions.
In summary I accept without any reservation that this general region of Western Australia is rich in natural resources and regularly accessed by members of the claim group. Further, I accept that members of the claim group engage in the activities described by the deponents. Nonetheless, as a result of the cumulative undisputed evidence of the native title party presented in the four expedited procedure inquiries in this region, it is clear that community and social activities are carried out over a very wide geographic area. The proposed tenement comprises a small fragment of this wider region. Moreover there is no compelling evidence that the subject land and waters hold a higher importance in the scheme of things for hunting and gathering purposes, or wider social and community activities, than the surrounding country. It is certainly not clear that the granting of the exploration licence of itself would be likely to have a significant impact on the community and social activities of the claim group in relation to the land and waters comprising the proposed tenement. When undertaking a predictive risk assessment about the likelihood of direct interference it is appropriate to take into account the geographic and other contexts within which exploration will occur. The Tribunal does not make a section 237 assessment by filtering out the wider context within which the granting of the future act will or will not occur. Consequently I am not satisfied that the hunting and gathering activities outlined by the native title party would be likely to be directly interfered with by the granting of the future act.
A further issue is whether the granting of the future act would result in the carrying out of exploration activities which would be likely to directly interfere with the carrying on of social or community activities because of spiritual or emotional concerns about exploration.
This issue was considered by Deputy President Sumner in Walley, and I adopt for the purposes of this inquiry his analysis of the evidence before him (which is not greatly different from that before me) and his findings which are set out below (at 464):
“[49] I have little doubt that if the pre-amendment law was still applicable this evidence would be sufficient to establish interference with community life. The facts outlined above in Ben Ward (WO95/11) are all present. Nevertheless, I do not think it is sufficient under the current provisions of the Act. There is insufficient evidence that the spiritual concerns and their consequences will interfere in a substantial way with community or social activities. Mr Hamlett says that some Wajarri people will not camp in the Weld Ranges by themselves because of the presence of spirits in them. I can infer that this reluctance to camp alone will be greater if the claimants believe that the spirits are disturbed. Despite this it is only some Wajarri people who are concerned in this way and the concern is about camping in the Weld Ranges, not on the tenement itself. Other evidence establishes that the claimants and other Aboriginal people frequent areas of the tenement and the Weld Ranges on a regular basis including for camping. I cannot conclude that the evidence of past fears about camping in the Weld Ranges because of disturbance to spirits is sufficient to demonstrate that the grant of this tenement is likely in a substantial way to interfere with community or social activities.”
The geographical position of this tenement in relation to the Weld Range is slightly different. Whereas the tenement under consideration by Deputy President Sumner was located just to the south of the Wilgie Mia (eastern) end of the Weld Range, it would appear that the northern portion of this tenement actually includes a portion of the south-western section of the range. On the basis of the material before me, I am not satisfied that exploration activities on the subject area would be likely to result in a major impact on camping in the Weld Range, by members of the claim group, due to fears about disturbance of the spirits.

Sites of particular significance (s 237(b))

As previously pointed out, there are no sites located within the proposed tenement which are entered on the Aboriginal Sites Register.
Apart from Wilgie Mia and the Weld Range, the deponents made few references to any identified sites that were said to be of significance. Mr Hamlett refers (at para 10) to a “law ground right at the top of the tenement in the Weld Ranges”. Mr Hamlett’s father was initiated at that site. Mr Mongoo also refers to the site (at para 7), though he gives no indication of its importance.
The scant references to the law ground do not enable a finding that it is a site of particular significance. However, even it were possible to make such a finding, it is reasonably clear that it is located outside of the boundaries of the proposed tenement, and no material has been advanced as to how this site would be interfered with by the granting of the future act. It certainly has not been suggested that there is any zone of interference around this site, or indeed any other information that would enable the Tribunal to realistically make a finding that there was any likelihood that exploration would impact upon this site.
It is not clear if Mr Simpson is also referring to this site when he says: “There is a sacred site that I know of near the tenement area, on the south side of the Weld Ranges. It is a little hill, and it is a secret site. Only tribal [initiated] men can go there.” However, the native title party in its Statement of Contentions (at para 44) draws a distinction between this site and the law ground referred to above. For the purposes of this inquiry I proceed on the assumption that this is, in fact, not the law ground but a separate site.
Again, it is clear that this site is located outside of the boundaries of the tenement, and, moreover, its location vis-à-vis the tenement area is unclear. What the term “near” means in the context of this region of Western Australia is problematic. In any event, even if it were open to the Tribunal to assume that this secret site was of particular significance, the scant information provided about it renders it impossible to draw any conclusion that the grant of the future act would be likely to interfere with it.
The native title party also contended that the camping sites, caves and rock holes referred to in the affidavits of the deponents were sites of particular significance.
It is important to restate what is the nature of the obligation placed on the Tribunal when conducting a section 237(b) assessment. In Cheinmora v Striker Resources (1996) 142 ALR 21 Carr J said (at 34):
“I have reached the conclusion that the tribunal’s construction of section 237(b) is correct, ie that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word ‘particular’ with no work to do.”
The Tribunal, before undertaking a predictive risk assessment pursuant to section 237(b), must first make a finding that an area or site is of particular significance. As Carr J highlights, to make such a finding there must be evidence before the Tribunal that the area or site is of special or more than ordinary significance. The fact that an area or site is said to be important, significant or sacred, is not by that mere label, determinative of the issue. The evidence adduced must go beyond that. What is required is that an area or site is of special importance or special sacredness. Obviously this is a difficult assessment for an administrative tribunal to make, and in all cases it comes down to an evaluative weighing exercise on the basis of the evidence presented. The best evidence is primary evidence from native title holders who have the requisite knowledge about traditional laws and customs. The Tribunal assesses such evidence in a common sense manner, alive to the fact that in an expedited procedure objection inquiry the sort of evidence collated is by its very nature prepared by the native title party in an expeditious fashion and often with limited resources.

The relevant evidence is set out in the affidavits of Messrs Simpson (paras 12 -14), Mongoo (9-10 and 28-30) and Hamlett (11). Similar but not identical evidence was given by these gentlemen in the Richmond Resources inquiry. There is, however, some significant differences between that evidence and the evidence presented in this matter. In Richmond Resources particular emphasis was place on the proximity of the tenement to a sacred rock art site (Walga Rock) – see eg Affidavit of Mr Mongoo at para 9 which is set out at [12] of the determination of Deputy President Sumner. In addition, evidence was given of a specific cave on the Richmond Resources tenement which was covered with hand paintings and which Mr Mongoo deposed was a spiritual site for the Wajarri People and which required protection – see para 8 of his Affidavit. In contradistinction, no evidence has been adduced in this matter about Walga Rock or of any identified cave with important rock paintings or the like.
It will be noted that the evidence provided on this topic, in this inquiry, is of a generalised nature. There is no specificity about the location of any of the camping sites or caves mentioned.
The fact that traditional owners camped in a particular area does not of itself suggest that the camping sites are themselves sites of particular significance. Mr Simpson does not depose that the camping sites or even the caves are sacred. He does not depose that any of the caves on the area of the proposed tenement contain artefacts or paintings.
Mr Mongoo deposed that the tenement was “full of ngungas, rock holes and caves” (para 28). He made exactly the same statement about the area containing the tenement in Richmond Resources (see para 11). Similarly Mr Hamlett deposed (at para 11) that he was aware of ceremonial grounds and camping grounds within and around the tenement area. However, he did not identify any of those sites, nor did he explain whether they were of particular importance to the Wajarri People.
It may well be that there are caves, rock holes and camping sites on and around the subject area. It would not be surprising as this part of Western Australia has many hills and ranges and many Aboriginal People would have travelled through this general area to obtain ochre from Wilgie Mia and otherwise engage in trade and traditional activities. However, if there is to be a finding of sites or areas of particular significance, then there must be some evidence about a site or an area and how it is of particular sacredness or importance to the claim group. There is no suggestion that land and waters which do not form part of the Weld Range is generically an area of particular sacredness to the claim group. It may well be, as Deputy President Sumner found in Richmond Resources that, with respect to country south of the Weld Range and some distance from Wilgie Mia, there are sites of particular significance and that the nature, location and number of those sites render it likely that the grant of the future act would be likely to result in interference with them. However, generalised statements about the possibility or even probability, that there are caves or rock holes which may contain artefacts and paintings, does not found a sufficient basis for the Tribunal to infer that these unidentified caves and rock holes are of particular significance. There must be actual evidence of those caves and other physical formations and there must be actual evidence that they contain paintings, artefacts or have some particular spiritual importance and the nature of their sacredness and importance must then be explained. The type of evidence in this inquiry with respect to such caves, camping sites and rock holes does not, in my respectful opinion, enable a finding of particular significance pursuant to section 237(b).
I accept that Wilgie Mia is a site of particular significance within the meaning of section 237(b) and that there is a zone of interference around that site. In this regard I accept the evidence of Mr Hill who deposed (at para 7): “The Objectors believe that a site may be interfered with by exploration activities even though it is not located within a tenement area, but may be in close proximity to it.” The geographical extent of such a zone in every case is a factual issue to be determined on the basis of the material before the Tribunal. Suffice it to say, Wilgie Mia and its immediate surrounds lie many miles to the east of the subject area, and I do not accept that any zone of interference pertaining to Wilgie Mia has any relevance to the land and waters comprising the proposed tenement.
I further accept that the Weld Range landform is an area of significance to members of the claim group in accordance with their traditions. I do not accept that the whole of the Range is an area of particular significance within the meaning of that term in section 237(b), although the evidence adduced indicates that scattered throughout the Range there are sites and discrete areas that would be of particular significance. The evidence also tends to suggest that the areas of the Range closer to Wilgie Mia are of special importance, and thus it is more likely that findings of particular significance for “areas” as distinct from sites would be more likely the further east one travels. Having said that, it is also clear that there are also particularly sacred areas in the western section of the Range, the difference between the east and west of the Range in terms of a section 237(b) assessment, then, is a matter of degree.
The fact that a site is registered under the Aboriginal Heritage Act (WA) is not determinative of whether such a site is of particular significance within the meaning of section 237(b). Conversely, the fact that an area or site has not been processed under State cultural heritage legislation is also not determinative. As the Tribunal has found in the past, the Aboriginal Sites Register does not purport to be a record of all Aboriginal sites in Western Australia. In every case the Tribunal is required to make an independent assessment of whether an area or site is of particular significance on the basis of the material before it. Deputy President Sumner set out the main features of the Aboriginal Heritage Act in Walley (at 464-465) and I adopt those findings for the purpose of this inquiry.
It is relevant to highlight, nonetheless that the protective provisions of the Aboriginal Heritage Act 1972 (WA) apply whether or not a site is on the Register - see the wide operation of section 5 which relates to places and section 6 which relates to objects.
The government party made these submissions with respect to section 237(b):
“5. The Government party contends that the grant of the proposed tenement is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the objectors in relation to the land, for the following reasons:
(a)the Aboriginal Heritage Act applies to the land, and provides protection for Aboriginal areas or sites as defined in section 5 of the Act, of particular significance on the land;
(b)section 18 of the Aboriginal Heritage Act provides that the grantee party must have the consent of the Minister for Indigenous Affairs before using the land for any purpose which would result in a breach of section 17 of the Act. Section 17 makes it an offence inter alia to excavate, destroy or damage or conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site;
(c)the grant of the proposed tenement will include an endorsement that the grantee party’s attention be drawn to the provisions of the Aboriginal Heritage Act.”
The first issue in any section 237(b) is to ascertain whether there are any areas or sites of particular significance either within the proposed tenement or in close proximity to it. The Tribunal has accepted over a number of years that areas or sites located outside of a tenement area may nonetheless be interfered with by the grant of the future act. It is necessary however to demonstrate a nexus between the grant of the future act and the apprehended interference.
The evidence presented to this inquiry discloses:
(a)there are no registered sites within the boundaries of the tenement;
(b)     the subject area is located a considerable distance from Wilgie Mia and outside of any zone of interference around that site;
(c)     the subject area is located mostly to the south of the Weld Range, and no evidence was presented of any specific sites within the tenement which were located on the Weld Range;
(d)     the Weld Range, as a landform, covers an extensive area, and traditionally was an important area for the claim group and Aboriginal persons in the wider region. There is likely to be a number of sites of particular significance on the Range, and the eastern part of the Range around Wilgie Mia is an area of particular significance. However, the evidence presented to this and other inquiries does not provide a sufficient basis for making a finding that all of the Range is an area of particular significance;
(e)     the tenement is located in an area of Western Australia which contains many camping grounds, ceremonial grounds, caves, rock holes and rock paintings;
(f)   no evidence was presented of any specific caves, rock holes, paintings etc located within the boundaries of the proposed tenement which were said to be particularly important or sacred; and
(g)     it is likely that there are camping grounds, caves etc located within the proposed tenement, but the evidence presented is not sufficient to make a finding of particular significance about them.
In the circumstances the evidence presented does not enable a finding that there are sites or areas of particular significance within the proposed tenement, and accordingly, there is no basis for making a predictive risk assessment pursuant to section 237(b).

Section 237(c) - Major disturbance to land or waters

The native title party made no specific submissions about section 237(c) in its Statement of Contentions, and the contentions of the government party were of a generalised nature.
The Tribunal has scant material before it about the nature of the proposed exploration to be undertaken, if the future act is granted. The absence of any material from the grantee party in regard to its intentions, results in a finding that it will exercise its legal rights under the relevant Western Australian law to the maximum extent. Nonetheless no evidence has been presented which would negate the application of the presumption of regularity to the grantee party.
It is clear that this general area has been the subject of previous mining and exploration activities. The evidence presented would disclose that previous mining was conducted in a less than satisfactory manner with ongoing environmental and health and safety issues. Particular reference can be made to the evidence of Mr Hamlett (at paras 33 – 35), where he deposes to the impact of mining at Yalgoo and in the area around Cue. Evidence was also given of previous exploration activities on the proposed tenement. Both Mr Hamlett (at para 34) and Mr Mongoo (at para 33) deposed to observing drill holes, pipes, bores and tracks left on the proposed tenement from previous exploration and mining activity. Mr Hamlett specifically deposed that the tracks, especially those left along the creek beds, had resulted in soil erosion. It should be noted, however, that as the land in question falls within pastoral leases, it is conceivable that the tracks were made by either pastoral workers or other third parties.
The Tribunal notes the proposed Conditions to be imposed on the grantee by the government party, which requires the capping and filling of any surface drill holes, and all costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks being backfilled and rehabilitated to the satisfaction of the District Mining Engineer. Moreover the grantee will be required to remove all waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings. Unless the District Mining Engineer otherwise approves in writing, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Other Conditions will also be imposed.
It is fair to say that while mining and exploration in the past may have been conducted in an environmentally insensitive manner, the same cannot be necessarily said about contemporary exploration, especially with the protective legislative regime that exists. Moreover a distinction must be drawn between the environmental and social impact brought about by mining as distinct from that resulting from exploration. The evidence of Mr Hamlett about the pollution resulting from mining in the Yalgoo area was not about exploration but the run off of polluted water from a mining operation into the Sanford River. Mining is by its very nature high impact activity whereas exploration is by its very nature less intrusive. Consequently, while evidence about the impact of mining can, in a wider context, be helpful in understanding the concerns of native title holders, nonetheless a clear distinction has to be drawn between the impact of mining and the impact of exploration.
I have also considered as part of my assessment, the cultural concerns expressed by native title holders. While the primary focus of a section 237(c) assessment is on the likelihood of physical disturbance to land or waters, it is open, and appropriate, for the Tribunal to further consider the nature of that physical impact upon the customs and traditions of members of the claim group. Nonetheless, it is but one element in the Tribunal’s contextual risk evaluation – see Silver v Northern Territory (2002) 169 FLR 1 at 51. In this regard I note that there is some concern expressed that exploration may disturb the Wudajis in and around the Weld Range (see Affidavit of Mr Hamlett at para 35). I accept that this is a real and genuine concern, however, having regard to the ongoing nature of pastoral activities in this region, the fact that the tenement is intersected by roads and that there is evidence that this tenement forms only a minute part of an overall region where both the Wudaji’s exist and where native title holders engage in traditional activities, I have formed the view that the grant of the future act would not result in major disturbance within the meaning of section 237(c), at least so far as these cultural issues are concerned.
While on the basis of the evidence presented I am satisfied that there is not a likelihood of major disturbance within the meaning of section 237(c), I do place on record that I am somewhat concerned about the environmentally sensitive nature of this region. However:
(a)     on the basis of the evidence before the Tribunal;
(b) the protective nature of the legislative regime governing exploration;
(c) the application of the presumption of regularity;
(d)     the absence of any Aboriginal communities on, or in close proximity, to the subject area;
(e)     the ongoing disturbance to the land and waters by pastoral activities on each of the three pastoral leases covering the subject area;
(f)   the ongoing impact on the environment by the intersection of roads through the subject area, including the road to Kalli which is regularly used by members of the public, including native title holders;
(g)     while the subject area is accessed for hunting, gathering, ceremonial and other traditional activities, it is part of a much wider area where this activity occurs. Even if it is accepted that the presence of explorers may have an impact on native title holders engaging in traditional activities, this must be viewed in the context of the much wider geographical area within which such activities occur. While it is likely that there will be an intersection between exploration and traditional activities, and that there may be some negative impact on native title holders, I am satisfied that such impact would not be major or of an extended duration. In short if exploration does take place, its impact on the traditional activities of the claim group viewed in the wider context of what occurs in this region, would be relatively minor in impact and duration;
(h)the fact that this area has been the subject of previous mining and exploration activities;
(i)the absence of any evidence of recent exploration activities on the subject area or the immediate surrounds resulting in major disturbance; and
(j)the fact that previous mining and exploration has, apparently, not had an appreciable and deleterious impact on the fauna and flora of the subject area, accepting as I do the evidence of native title holders that this area is rich in such fauna and flora despite previous mining and exploration,

I have formed the view that there is no likelihood of major disturbance within the meaning of section 237(c).

Determination

The determination of the Tribunal is that the grant of exploration licence 20/475 to Bacome Pty Ltd is an act attracting the expedited procedure.

J F Sosso
Member