Violet Drury and Others on behalf of Nanda People/Western Australia/Bywood Holdings Pty Ltd - [2002] NNTTA 171

NATIONAL NATIVE TITLE TRIBUNAL

Violet Drury and Others on behalf of Nanda People/Western Australia/Bywood Holdings Pty Ltd, [2002] NNTTA 171 (20 August 2002)

Application No.: WO01/111 (E70/2206, E70/2219, E70/2240, E70/2241, E70/2242)

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

Violet Drury and Others on behalf of Nanda People (native title party)

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The State of Western Australia (government party)

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Bywood Holdings Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT THAT ATTRACTS THE EXPEDITED PROCEDURE

Tribunal: Deputy President The Hon EM Franklyn QC
Place: Perth

Date: 20 August 2002

Catchwords: Native Title – Future Act – expedited procedure objection application to grant of five exploration licences – evidence insufficient to support objection under s237(a), (b) and (c) – observations on spiritual dimensions of community or social activities under s237(b) – grant of each tenement an act which attracts the expedited procedure.

Legislation: Native Title Act 1993
Aboriginal Heritage Act 1972

Mining Act 1978

Cases: Dann v Western Australia (1997), 74 F C R 391

Fejo v Northern Territory (1998); 156 A L R 721
Walley and Boddington and others/the State of Western Australia/Giralia Resources NL (WO01/179 and WO01/180, 8 March 2002)
Smith and Ors/State of Western Australia/South Coast Metals Pty Ltd, (NNTT WO99/5111, 23 June 2000)
Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, (NNTT DO01/13, Mr John Sosso, 1 February 2002)

REASONS FOR FUTURE ACT DETERMINATION – WO01/111

Background

[1] On 16 March 2001, the State of Western Australia (“The State”) gave notice under Section 29 of the Native Title Act 1993 (“the Act”), that it may grant to Bywood Holdings Pty Ltd (“the grantee”) exploration licences 70/2206, 70/2219, 70/2240, 70/2241 and 70/2242 (hereafter referred to jointly as “the proposed licences” and severally by their respective proposed licence numbers). The said notice contained the statement that the State considers the grant of each such licence to be an act attracting the expedited procedure. Each of the proposed licences abuts one or more of the others of them.

[2] On 9 July 2001, Violet Drury and others, on behalf of the Nanda People, the native title claimants under application WC00/13 registered 1 May 2001 (“the objectors”), lodged a single objection form (Form 4) against the inclusion of the said statement in such notice in respect of each of the proposed licences on grounds which bring into consideration each of paragraphs (a),(b) and (c) of s237 of the Act and the evidence in respect thereof.

[3] Pursuant to directions made, the State and the objectors each lodged with the Tribunal and served on the other parties the respective statements of contentions, documents and other material on which they respectively rely in the inquiry. At the grantee’s requests, because of the absence of its representative from time to time overseas, (all parties being heard on each occasion) directions extending time were granted on more than one occasion for the lodgement by it of its contentions and other material and for a reply thereto by the objectors if desired. Contentions containing factual allegations, but without supporting documents or statements of evidence, were subsequently lodged and served by the grantee and a reply thereto was lodged by the objectors. At a listing hearing on 22 April 2002 the grantee’s representative advised that it had not received a copy of the objectors’ reply and a short adjournment was allowed to enable him to access the same. Subsequent to him doing so, the grantee having previously advised that it was prepared for the matter to be dealt with “on the papers”, its representative was asked whether that was still its decision. After a discussion as to the process involved in each of a hearing or a determination on the papers, the grantee’s representative advised that he would seek further advice but, “at this point,” was happy to proceed on the papers. He advised that he was departing for overseas again the following week. Directions were made requiring the grantee to advise the Tribunal and the other parties on or before the 26 April whether the grantee intended to provide evidence in support of the factual allegations in its contentions and, if so, to advise the name of any witness to be called and provide a statement of the evidence to be given. I was satisfied in terms of s151 of the Act that, in the absence of further material from the grantee, the issues for determination could be adequately determined on the absence of the parties. As the other parties had each advised they were happy for the matter to be dealt with on the papers, directions were made that, in the absence of the compliance by the grantee by the directed date the matter would proceed on the papers. There was no compliance or further application by the grantee.

[4] I am satisfied that the matter can be determined, on a consideration of the documents and other material lodged with the Tribunal, in the absence of the parties and without holding a hearing.

[5] The State’s Evidence and Material

Each of the proposed licences is situate on Murchison House pastoral Station (Pastoral Lease 3314/969) and, with the exception of E70/2240, the western boundary of each projects into the Indian Ocean. The State’s documentary evidence reveals there to be no Aboriginal community within or in the vicinity of any of the proposed licences. The maps produced by it also reveal there to be 47 sites recorded on the register of Aboriginal sites within the boundaries of the proposed licences.

[5.1] E70/2206 comprises 213.01kms² in all, being land the subject of each of the said Pastoral Lease, freehold land being Edel locations 5 and 6 the subject of certificates of title 2103/125 and 2103/126 respectively (each in the name of the pastoral leaseholder), Crown Reserve 12996 (for Parkland and Recreation), unallocated Crown Land and a Road Reserve. It abuts, along its northern boundary, the southern boundaries of E70/2119 and E70/2242. It’s southern extremity virtually abuts the northern boundary of the township of Kalbarri. The Murchison River runs within its south eastern corner for approximately 2kms and then on to Kalbarri. The Reserve for Parkland and Recreation runs along each side of the Murchison River for the whole of that distance. The Murchison River does not travel through any of the other proposed licences. On it there are 18 registered sites, of which the site type of one, Bindara South (PO1992) is registered as “ceremonial”, one, Jibeenewajar (PO1976) as “mythological”, one, Nuningay Springs (PO1982) as “mythological and artefact”, one Wookia Caves (PO1994) as “painting and artefact” and 14 others as “artefact”. Of those 18 sites, Nuningay Springs (PO1982), Paradise Springs (PO1975), North Point 1 (PO1929), North Point 2 (PO1930), North Point 3 (PO1931), North Point 4 (PO1936) are registered as reliable. The remainder are registered as unreliable. All 18 sites are registered on the interim register with no gender restrictions and all have open access save Jibeenewajar (PO1970), and Nuningay Springs (PO1982), which are each registered “closed access”. The sites Bindara Springs (PO1993), Bindara South (PO1992), and Yalthoo Spring North (PO1991) are each located on the freehold land. There are consequently no native title rights in respect of the same (Fejo v Northern Territory (1998); High Court of Australia 156ALR721). Jibeenewajar is shown as being on Reserve 12996 (Parkland and Recreation) as are Paradise Springs and each of North Point 2, 3 and 4.

[5.2] E70/2219 comprises 94.42kms² in all, being land the subject of each of the said Pastoral Lease and unallocated Crown Land. It abuts E70/2206 along its southern boundary and E70/2214 along its northern and eastern boundary. On it there are two registered sites, each on the interim register, each registered as unreliable, neither with a registered site type and each with open access with no gender restrictions.

[5.3] E70/2240 comprises 54.88kms² in all, being land the subject of each of the said Pastoral Lease and Crown Reserve 1050 (a Stopping Place). It abuts E70/2241 on its southern and eastern boundaries. On it there is one site. It is registered on the interim register, with site type “artefact”, as reliable, with open access and no gender restriction.

[5.4] E70/2241 comprises 213.4kms² of land the subject of the said Pastoral Lease and unallocated Crown Land. It abuts E70/2242 along its southern boundary and E77/2240 along its northern and western boundaries. On it there are eight sites all registered on the interim register, all with open access and no gender restriction. One, Weerinoogudda Dams (PO2022), is registered as reliable and has the site type “skeletal material/burial, artifact” and two, Weerinoogudda Soak (PO2023) and Carrollganda Soak (PO1989), are registered as reliable with site type “artifact”. The remainder are registered as unreliable with site type “artefact” in each case.

[5.5] E70/2242 comprises 213.25kms² in all, being land the subject of each of the said Pastoral Lease, unallocated Crown Land and a Road Reserve. It abuts E70/2240 on its western and northern boundaries and E70/2242 along its southern boundary. On it there are 16 sites, all on the interim register with open access and no gender restriction, one of which, “Jannawa and Pillawarra Hills” (PO2025), is registered with site type “mythological” and as unreliable, another, Pillawarra Hill 1 (PO1912) with site type “quarry, artifact” and as reliable, eight with site types “artifact” and as unreliable, and the remainder with site types “artifact” and as reliable.

[6] The maps produced by the State reveal that a minor road runs from Kalbarri along the coast through each of E70/2206, E70/2219, E70/2242 and E70/2241 and thereafter further north. They also reveal there to be a road which runs alongside the Murchison River on E70/2206, over its eastern boundary and onto land not the subject of any of the proposed licences. That road thereafter travels in various directions, including onto freehold land in the name of the pastoral leaseholder and to an aircraft landing ground on freehold land immediately adjacent to E70/2206. There is another road which travels from E70/2206 north easterly onto E70/2242 and other roads which run from E70/2206 north onto E70/2219 where they branch out, running into E70/2242, E70/2241 and E70/2240. The maps make clear that generally, the roads running over each of the proposed licences run over, or to, or in very close proximity to a number of the registered sites on the respective proposed licences including, in particular, those the names of which indicate watering holes or watering places. The respective locations of the roads and such registered sites lead to an inference that both are associated at least with Murchison House Station pastoral activities. Seven thereof are on or in close proximity to the minor road which runs from Kalbarri approximately 1km from the coast through and beyond through four of the proposed licences. I do not here set out a list of the sites to which I refer. Examination of the maps in evidence produced by the State makes clear their location and proximity in relation to the roads. The State map of E70/2242 also reveals an aircraft landing ground adjacent to a road running through it from the south east and on into E70/2241.

The Objectors Evidence

[7.1] The objectors rely upon the affidavits of Mr Barry Randall (sworn 18^th December 2001), Ms Lucy Ryder (sworn 18^th December 2001), Mr Cedric Stileman Davies (sworn 17^th December 2001), Ms Violet Drury (sworn 20^th December 2001), and Mr Allister Hill (sworn 20^th December 2001).

Mr Barry Randall deposes as follows:
I, Barry Randall of Ajana in the State of Western Australia being duly sworn make oath and say as follows:
I am a member of the Nanda native title claim. I am recognised under the traditional Nanda laws as speaking for and knowing the sites and traditional stories located on Murchison House Station.
I have seen a map, which shows the location of tenement E70/2206, 2219, 2240, 2241, and 2242 (“the proposed tenements”) and I know that area very well. Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenements.
The proposed tenements are located on the southern part of Murchison House Station. The townsite of Ajana, where I currently live is located approximately 50 kilometres from Murchison House Station. I grew up on Murchison House Station. I went to school at Galena Bridge until 1967 and then to Northampton high school. Holidays and weekends were always spent out on Murchison House Station. My father, Bertie Drage and all of my uncles worked on Murchison House Station, and I worked there for a couple of years. Murchison House Station is like a home to all of my extended family. I can survive any where out in the bush I know all about bush tucker. I know all the best places for bush tucker and all the watering holes on Murchison House Station. The Drage family is like a part of the land.
Murchison House Station is very important to Nanda people. There are a lot of sites located on the Station including the area of proposed tenements. Some of the sites are recorded on the Register of Sites [“the Register”], which is managed by the Department of Indigenous Affairs, however there are many more sites within the tenement area that are not recorded on the Register.
Attached hereto and marked “B” is an extra from the Register, which shows that there are 22 recorded sites on the Register within tenement E70/2206. Attached hereto and marked “C” is an extra from the Register, which shows that there are 2 recorded sites on the Register within tenement E70/2219. Attached hereto and marked “D” is an extra from the Register, which shows that there is a site recorded on the Register within tenement E70/2240. Attached hereto and marked “E” is an extra from the Register, which shows that there are 8 recorded sites on the Register within tenement E70/2241. Attached hereto and marked “F” is an extra from the Register, which shows that there are 20 recorded sites on the Register within tenement E70/2242. There is a total of 53 sites recorded on the Register within the proposed tenements.
The number of recorded sites within the area of proposed tenements is an indication of how important the whole area is to Nanda people. I know this area is the main area for peoples Dreaming. The whole area is very significant to Nanda people.
There are a number of sites or particular significance to Nanda people, which have Dreaming stories connected with them within the proposed tenement area. There are Dreaming stories that are associated with many of the rocks, hills, and other natural features within the area of the proposed tenement. According to traditional Nanda law, we are not allowed to tell people all the stories or tell people about some sites because they are secret.
Junadawaa and Biilhidawaa are two hills within tenement 2242. Years ago the two hills were fighting and one of the hills broke of the side of the other hill. You can see where one hill hit the other today, because the side of that hill is broken off. The oldest people used to tell us not to go to those hills. Attached hereto marked “G” is a copy of a photo of those hills.
There is a Dreaming story, which explains why there is only one blackboy (grasstree) on the northern side of the river.
Mt Curious is an important Dreaming area. It is an island in the Dreamtime stories and has other stories associated with it. Mt Curious is outside the area of the proposed tenement but is connected by the stories to areas within the proposed tenement. If the Dreaming sites within the area of the proposed tenement are disturbed, it will affect important areas outside the area of the proposed tenement such as Mt Curious.
Drilling, making roads for machinery, excavating and these kinds of exploration activities are likely to disturb these very important sites.
There are serpents in the Murchison River and in some of the springs. Some times a serpent will look after two springs. I have felt the ground shake when a serpent moves between two springs which are located on tenement 2241and 2242. Damaging springs and drilling will disturb the serpent. If a serpent is disturbed it will look for another place to live. If the serpent dies or if it moves on the spring will dry up.
There is another Dreaming story, which connects two sites within 2206. The story is about a serpent that went in and started at Jibi Wujayi (Jibeenewajar), which means sand lark and went through under the ground and came out at Nunginjay Springs.
There are caves all through the hills and along the edge of the Murchison River. Some of the caves are within the area of the proposed tenements. The old people used to live in the caves. Some of the caves have art in them. Nanda people do not like other people to know where the caves are. Some of the caves are burial sites. Nanda people do not want the caves to be disturbed. Exploration activities will disturb the caves.
There are corroboree grounds all through the hills in the area of the proposed tenement. Mt Curious is an important dancing area about a kilometre to the east of the proposed tenement. Weerinoogudda was also a big corroboree ground.
There is a place, which is just outside the area of the proposed tenements where trees grow that is used for making imga (devil) spears. The trees are long and straight and thin. People used to come from everywhere, travel for miles, to get the wood for spears.
There is a place, which is located just east of tenement 2242 called Wilgie Mia pool. The pool is an important source of red ochre. There is Dreaming story, which connects this pool with Wilgie Mia

near Cue in Wajarri country. This Dreaming story is connected to other places within the area of the proposed tenement that are sources of ochre. Wilgie Mia is and important Dreaming track.

Some of the animals are very important to traditional Nanda law and custom. For example there is a white kangaroo that looks after the area. He keeps bigarda (red kangaroo) in the hills and the yawarda (grey kangaroo) on the sand plains. White and black cockatoos are very important dreaming animals. They nest in the area of the proposed tenements. It is important that these animals are not frightened away.
Exploration will destroy these sites and these stories and will frighten away the animals.
There are camping areas all throught the area of the proposed tenements. Some of the places where we camp are marked on the map, which is attached to this affidavit. Those places are at Billiecuthera bore, which is not within the tenement area, Carrollgouda Well, Gee Gie outcamp, Modesty Villa dam, Neernoongudda, which are located within 2241, Long Thicket Bore and Bindara Well which are located within 2206, Bookah Springs, Bettie Crossing, and Wee Warra, which are located within tenement 2242, and Nyllawaddatharra Soak and Coolgudda which are located within tenement 2219. Bindara Well is a main camping area. There is a natural soak in there and there heaps of grinding there. There is a story associated with the soak. Many of the areas where we camp are not marked on the map. We camp all over Murchison House Station.Attached hereto and marked “H” are copies of photos which I have taken of Nanda people camping within tenement 2240. These sites are not marked on the map, but the approximate location is marked with an A on attachment “A.”.
I go camping within the area of the proposed tenements all the time. I go out to Murchison House Station, including the area of the proposed tenements at least once a week. When I go, I never go on my own; I always take a lot of other people out with me, usually one or two car loads (5-10 people). I have heaps of brothers cousins and nephews. Usually some of the kids come with us. We show kids the bush tucker, the caves, visit the springs and sites, and tell them the stories.

My diet consists largely of bush tucker. When we go to Murchison House Station, including the area of the proposed tenements we collect all sorts of bush tucker.
For meat we hunt kangaroo, emu, porcupine (echidna), bangarra (goanna) and bush turkeys. Porcupine is the best tucker. When we were kids, the old people used to tell us that we were not allowed to have porcupines. At the time I thought that the reason that they would not let us have it was because it would make us sick. I have found out later that they would not let us have it because it tastes good and they did not want to share it with the kids. I eat porcupine whenever I can catch it but about once a month.
The area of the proposed tenements is a good place for bush turkey, especially along the coast plains. There are emus nesting all through the area of the proposed tenements. We catch big mullet and big black bream in the river and take oysters, abalone, periwinkle, crayfish, and snapper from along the coast. You can get snapper in the potholes in the reef. I take some of this bush tucker into my aunty cousin Lucy Ryder who lives in Northampton when I go into Northampton. Lucy is old and can’t get out into the bush like she used to. You find lots of shells up in the hills.
Murchison House Station, including the area of the proposed tenements is a good area for bush tucker. Ajuga and Agurda are bush potatoes. They are the same thing except agurda is found on the rocks and ajuga is found on the sand plains. Agurda is close to the surface, but you have to dig down a fair way to find the ajuga. You can eat them raw or you can bake them in the ashes. They are delicious.
Matha is like a bush carrot. It has a hot peppery taste. It grows on the sand plains and has flat course leaves. It is good to have if you the flu or if you have a cold. You can eat it raw or chuck it in the ashes. I eat heaps of these all the time and take some into Lucy. Ngacku are another type of bush vegetable. It is like a mild chilli sweet potato as big as a medium apple. Kaianu are like mild chilli It has wedges like a clove of garlic. Recently I took a bucket full of ngaku, which I collected from within the area of the proposed tenements to Lucy.
There are of the proposed tenements is good for bardis. You get bardis in wattle trees and jam trees (margarda). Bardis are good bait for fishing in the river.
There are lots of trees that have seeds that you can eat. Kayili trees grow on the river near the water and on the sand plains. They have a seed like a sweet pea- green and juicy. You get them in the right season. At this time of the year the seeds are dried out and you can grind them and use them to make damper. Boguda trees have seeds like beans. You eat them in the right season. At this time of the year the seeds are dried out and you can grind them and use them to make damper. Boguda trees have seeds like beans. You eat them when they are green and when they are dry you grind them up to make damper. The seeds are dry at this time of year. These trees are found on the sand plains and there are good pockets of them within tenement 2240 and near Wee Warra dam. You can also use the seeds of wattle trees and curare trees both of which are found within the area of the proposed tenement. Gee Gie outcamp (within tenement2241) has lots of bush tucker food all around it.
Within the area of the proposed tenement there are some shrubs that are very powerful bush medicine. Only certain people know about it. I am not able to tell any outsiders where it is. These shrubs grow throughout the tenement area. We do not show anyone. There is another kind of bush medicine that is a cure for toothache. You put leaf of the wardu wardu tree on your tooth and it will stop aching.
Exploration including drilling, excavating, driving around will destroy the plants from which we collect bush tucker and bush medicine. It will frighten the animals that we hunt.
I am swearing this affidavit because I think that the area of the proposed tenements is very important to Nanda people that people should not be able to mine or drill or disturb the area of the proposed tenements unless they first talk to the right Nanda people who speak for the area. Nanda people will want to make sure that the graves, caves, spirits, serpents and the Dreaming stories are not disturbed and that important sources of food and bush medicine are preserved for future use.

SWORN by the said Deponent         )   Barry Randall
At Northampton in the said State of   )
Western Australia this 18^th day of     )
December 2001                 )

None of the attachments referred to in the affidavit and supplied as evidence by Mr Barry Randall are signed or initialled by him, nor do they have any indorsement identifying them as the exhibits referred to in the affidavit, but bear the signature of the witnessing Justice of the Peace.

Mrs Lucy Ryder deposes as follows:
I, Lucy Ryder of West Street Northampton in the State of Western Australia, elder, being duly sworn make oath and say as follows:

I am an elder of the Nanda native title claim. I am recognised under the traditional Nanda laws as speaking for and knowing the sites and traditional stories of the area of the Murchison House Station. I speak the Nanda language fluently.
I was born on Murchison House Station. My grandmother, Jilba was born on Murchison House Station and Jilba’s mother and father were both from Murchison House Station. Jilba is buried on Murchison House Station. I am currently 82 years old and I am living in Northampton. The last time I visited Murchison House Station was last year. I don’t walk too well and I don’t drive so it is very hard for me to get out there. My daughters, grand daughters cousins and nephews go out there quite often.
I have seen a map, which shows the location of tenements E70/2206, 2219, 2240,2241, and 2242 [the proposed tenements]. Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenements. The proposed tenements are located on the southern part of Murchison House Station.
I know the area in and around the area of the proposed tenements. I was born on Murchison House Station and did not leave the Station at all until I was about 20 years old. In the early days Nanda people on Murchison House Station had to get permission from the “Boss” before they were able to leave the Station. Leave was usually limited to 2 weeks. Though I have lived and worked in other places throughout my life, I often returned to Murchison House Station, either to work or visit.
I lived on Murchison House Station along with a lot of other Nanda people. In the old days the police would come to the Station to take away the kids. The old people would take us into the bush and hide us. My sister was taken away. We lived in camps that were situated on the Station. We lived a traditional lifestyle while we lived in the camps. We ate bush tucker and spoke Nanda. We did not stop in one spot, we camped all over the Station, including within the area of all the proposed tenements. We often camped where there are springs or watercourses. There are lots of springs and water courses within the area of the proposed tenements.
Some of the places where we camped are at Billieecutherra bore which is not within the tenement area, Carrollhouda Well, Gee Gie outcamp, Modesty Villa dam, Weerinoogudda, which are all within 2241, Bindari Well which is within 2206, and Bettie Crossing which are within tenement 2242, and Nyllawaddatharra Soak and Coolgudda which are within 2219. There are many other places where we camped but they do not have name there are too many to name. I remember that there were grinding stones at many of the camping area where the women would grind seeds such as karrara seeds to make damper. Some of my relations still go out there camping. My uncle, Wattie Baker used to live at Modesty.
Murchison House Station is extremely important to Nanda people. There are many Dreaming stories associated with the natural features such as the rocks, hills, Murchison River, streams and springs that are on Murchison House Station, including the within the area of the proposed tenements. I have been told that there are a total of 53 sites recorded on the Register of Sites, which are administered by the Department of Indigenous Affairs within the area of the proposed tenements. The number of recorded sites within the area of the proposed tenements is and indication of how important the whole area is to the Nanda people. Some of the sites are rock art sites. The area is the main area for Nanda peoples Dreaming. The whole area is very significant to Nanda people.
In the hills on Murchison House Station and along the edge of the Murchison River, which flows through Murchison House Station and in part through the area of the proposed tenement, there are lot of caves where the old people used to live before white people came to our country. We do not tell people about where the caves are because they contain lots of special things. The old people told us that we were not allowed to go into the caves. There are caves within the area of the proposed tenements.
When I was young there are used to be corroborrees around Murchison House Station. The grannies and the old men would get painted up and walk away. People would come from Wajarri country to go to the corroborrees. Boomerangs were tapped for music and I would “nyambi”. Nyambi is like doing the twist. There is a special song for “nyambi” business. Corroborrees weer held at Warlapathanagurdu (Nanny Goats) (just south of 2206) and Jidamarda (at the mouth of the Murchison). There is a large corroborree ground at Weerinoogudda Dam, which is tenement 2241.

SWORN by the said Deponent         )   Lucy Ryder
At Northampton in the said State of    )
Western Australia this 18^th day of    )
December 2001                  )

The map marked “A” annexed to the affidavit is not endorsed with identification that it is the map referred to in the affidavit, is not signed by Mrs Ryder, but is signed by her witness.

[10] Violet Drury deposes as follows:
I, Violet Drury of 24 Stephens Street Northampton in the State of Western Australia, elder, being duly sworn make oath and say as follows:

I am a member of the Nanda native title claim. I am recognised under the traditional Nanda laws as speaking for and knowing the sites and traditional stories of the area of the Murchison House Station. I speak the Nanda language fluently.
My mother, Lucy Ryder, was born on Murchison House Station. My great grandmother, Jilba was born on Murchison House Station and Jilba’s mother and father were both from Murchison House Station. Jilba is buried on Murchison House Station.
I have seen a map, which shows the location of tenements E70/2206, 2219, 2240,2241, and 2242 [the proposed tenements]. Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenements. The proposed tenements are located on the southern part of Murchison House Station.
I know the area in and around the area of the proposed tenements. I have worked on Murchison House Station and as a child spent most of our school holidays on the Station. I continue to visit Murchison House Station regularly. I know the Dreaming stories that are associated with different natural features that are located on and around Murchison House Station. Some of these features are contained within the area of the proposed tenements. My grandmother, mother, uncles, and aunties have passed the Dreaming stories down to me.
My mother, her brother and sisters, my grandmother and her brothers and sisters and my mother’s cousins lived in camps on Murchison House Station. Mum has told me that the families lived a traditional lifestyle while they lived in the camps. They ate bush tucker and spoke Nanda. They did not stop in one spot, but camped all over the Station, including within the area of all the proposed tenements. They often camped where there are springs of watercourses. There are lots of springs and watercourses within the area of the proposed tenements.
My mother told me that some of the places where they camped are at Billieecutherra bore which is not within the tenement area, Carrollhouda Well, Gee Gie outcamp, Modesty Villa dam, Weerinoogudda, which are all within 2241, Bindara Well which is within 2206, Bettie Crossing and, which are within tenement 2242, and Nyllawaddatharra Soak and Coolgudda which are within 2219. There are many other places where we camped there are too many to name. Quite a few Nanda people still go out to Murchison House Station and camp with in the area of the proposed tenement on a regular basis.
Maluwaa (meaning ‘shades’) is located on the opposite side of the Murchison River to Paradise Flat. It is within the tenement area. It was a place where people camped and went fishing. I have camped at Maluwaa quite a few times.
Murchison House Station is extremely important to Nanda people. There are a lot of sites located on the Station including within the area of the proposed tenements. Some of the sites are recorded on the Register of Sites, [“the Register”], which is managed by the Department of Indigenous Affairs, however there are many more sites within the area of the proposed tenement that are not recorded on the Register.
Attached hereto and marked “B” is an extra from the Register, which shows that there are 22 recorded sites on the Register within tenement E70/2206. Attached hereto and marked “C” is an extra from the Register, which shows that there are 2 recorded sites on the Register within tenement E70/2219. Attached hereto and marked “D” is an extra from the Register, which shows that there is a site recorded on the Register within tenement E70/2240. Attached hereto and marked “E” is an extra from the Register, which shows that there are 8 recorded sites on the Register within tenement E70/224. Attached hereto and marked “F” is an extra from the Register, which shows that there are 20 recorded sites on the Register within tenement E70/2242. There is a total of 53 sites recorded on the Register within the proposed tenements. The number of recorded sites within the area of proposed tenements is an indication of how important the whole area is to Nanda people.
There are many places on Murchison House Station and within the area of the proposed tenement that are sites of particular significance to Nanda people that are not on the Register. Some places of significance include rocks and trees which are not easily identified as significant to people who have not been taught about the area. For example there ars some “lookout” trees (tall trees located on the highest peaks) trees that used to form part of a ceremony, trees under which people are buried or born. Attached hereto and marked “G” is a copy of a photograph, which shows the tree under which my mother was born. This tree is of particular significance to Nanda people who are related to my mother. Other sites of particular significance to Nanda people that are not on the Register include caves, camping areas, springs, streams, the Murchison River and Dreaming places.
I take my mother to see the country including the area of the proposed tenements. When she sees the white hills she becomes very emotional cries and throws sand into the air and says “Utthadu jardawuuna” which means “My own beautiful country”. Nanda peoples attachment to the land is very strong.
I know that Murchison House Station is the main are for Nanda peoples Dreaming. The whole area is significant to Nanda people. There are many Dreaming stories associated with natural features such as the rocks, hills, Murchison River, streams and springs that are on Murchison House Station, including within the area of the proposed tenements. According to traditional Nanda law there are lots of places and stories that were not allowed to tell other people about. We can tell people a little about the story, but not the whole story.
Junadawaa and Bilhidawaa are two hills located within the tenement 2242. According to the Dreaming, the two hills were fighting and one of the hills broke off the side of the other hill. You can see where one hill hit the other today, because the side of that hill is broken off. My mother and other old people used to tell us not to go to those hills.
At Nyarlunggu Ngardajudi, which is on the opposite side of the Murchison River to Nanny Goat (northern side of Murchison River there is a Dreaming story about women fighting. A dog spoke to the women and they were turned into stones. That is why the area is very rocky and stony.
At Idimba which is near Bindari Well, within tenement 2206 there is an area of white rock, which is in the shape of a moon. The Dreaming story is that a moon fell out of the sky and landed there. If you dance on the moon and make a wish the wish will come true. My mother told me that in the old days a couple of shepherds didn’t know how to muster sheep. The shepherds danced on the moon and found the sheep. When you go there you must throw the branches onto the moon to introduce yourself. That is Nanda custom.
There is another Dreaming story, which connects two sites within 2206. The story is about a sand lark that started at Jibi Wajwujayi (Jibeenewajar), and went through and came out at Nunginjay Springs.
Mt Curious, Aboriginal name Pirninuthananah, is an important Dreaming area. It is an island in the Dreamtime stories and has other stories associated with it. Mt Curious is outside the area of the proposed tenement but is connected by the stories to areas within the proposed tenement. For example Jundadawaa and Bihidawaa and Buku windmill, an important place where the Nanda people used to camp in the early days.
There are lots of Dreaming stories about areas within the proposed tenements. Some of the Dreaming stories are connected with areas outside the tenements’ area. If the Dreaming sites within the area of the area of the proposed tenements are disturbed it will affect important areas outside the area of the proposed tenement such as Mt Curious and Wilgie Mia.
Exploration activities including drilling, making tracks, driving four wheel drive vehicles will destroy these sites and these stories. I have seen places where these types of activities have destroyed sites of significance to Aboriginal people.
In the hills on Murchison House Station and along the edge of the Murchison River, which flows through Murchison House Station and in part through the area of the proposed tenement, there are lot of caves where the old people used to live before white people came to our country. Some of the caves are rock art sites. We do not tell people about where the caves are because they contain lots of special things. The old people told us that we were not allowed to go into the caves. There are caves within the area of the proposed tenements.
The old people have told me about the times when there used to be corroborrees around Murchison House Station. My mother has told me how the men would paint themselves like bones in a skeleton. The men could make their muscles ripple without moving their bodies. Corroborrees were held at Warlapathanagurdu (Nanny Goats) (just south of 2206) and Jidamarda (at the mouth of the Murchison). There is a large corroborree ground at Weerinoogudda Dam, which is tenement 2241and at Mt Curious which is about 1km to the east of the 2242. (other places within the tenement area?)
The old people have told me about some big fights that took place around Kalbarri. People were buried on the coast in the sandy country. There are lots of graves in the area of the proposed tenement. According to Nanda traditional law you cannot walk over a grave – you have to walk around it .We still practice this custom today Graves are very sacred places. It is very important that you don’t walk on graves or disturb the graves. If you do the spirits will follow you in the night. The old people taught me this when I was a little girl. If people dig or drill in the wrong place graves will be disturbed and that will disturb the spirits of the old people.

The spirits of the old Nanda people are everywhere on Murchison House Station, including the area of the proposed tenements It is traditional Nanda law that you do not whistle in the night. If you whistle in the night it attracts the spirits.
When I go back to the Station I talk to the spirits of the old people in the old Nanda way and tell them that I’ve come back to visit them. My mother has taught me the words to say. I tell them who I am so they know that I belong there and they won’t hurt me. It is Nanda custom to introduce yourself to country and the spirits of the old people when you go there.
My mother told me of one time when she was mustering out near Modesty Villa, she heard a (spirit) woman singing out. She was very frightened and would not get off her horse. She opened the gate with her boot. When she retuned to the camp, she was told that her aunty had died.
I have seen spirits on Murchison House Station move fire sticks off the fire. I have heard the spirits singing up the river. There is a (Thyardi) serpent that lives in the river and others that live in the springs. Some springs have the same serpent. Sometimes there is a different serpent. There are some places in the river where people should not go. No one swims there. If you swim there the serpent will suck you under and will drown you. It is traditional Nanda law that you throw sand into the water where there is a serpent to introduce yourself so that will not hurt you. If you don’t throw sand into the water, you will get sick I know people who have got sick because they didn’t throw sand in the water before they drank from the springs. If you kill the serpent the water will dry up. Drilling in the area or filling in the springs will kill the serpent or make the serpent go to another place.
It is important that you don’t pick up rocks in anyone else’s country. If you do it makes you weak and drains your life away. You should not take rocks away from the country. The spirits of the old people are in the rocks and if you take them away you take the spirits away from their country. It is important that rocks are not moved. If a rock is taken away from a place it is important that it is returned to that exact place that it was taken from because that is where it belongs. If people drill or take rocks away from this country it will have a harmful effect on the spirits of the old people.
We collect all sorts of bush tucker within the area of the proposed tenements. In the old days Mum and her family would live off bush tucker. These days I eat bush tucker whenever I can get it. I visit Murchison House Station, including the area of the proposed tenements approximately every 2 months. When I go, I do not go on my own but always go with a car load (4-5- people). We go just to have a look and to collect whatever bush tucker is in season.
Kangaroos are plentiful within the proposed tenement area. Kangaroo is one of my favourite types of food, I eat it whenever I can get it.
The area of the proposed tenements is a good place for bush turkey, especially along the coastal plains. There are emus nesting all through the area of the proposed tenements. We catch big mullet and big black bream in the river and take oysters, abalone, periwinkle, crayfish, and snapper from along the coast. You can get the snapper in the potholes in the reef. My mother has told me that the old people used to catch a lot of food from the sea. There are sea shells and sea stones all through the hills where the old people used to camp.
You can get chewing gum from a certain type of banksia tree. You have to be careful which ones is the right one. My mother has taught me which one is the right one. Banksia trees are found all through the area of the proposed tenement.
Aujuga and Agurda are bush potatoes. They are the same thing except agurda are found on the rocks and ajuga are found on the sand plains. You can eat them raw or you can bake them in the ashes.
Matha is like a bush carrot. It has a hot peppery taste. It grows on the sand plains and has flat smooth leaves. Koolanu are another type of bush vegetable. It is like a mild chilli and can grow as big as a medium sized apple. It has wedges similar to a clove of garlic. Ngatchku are another type of wild potato that looks like a spring onion. You eat the bulb at the bottom. We collect these when they are in season.
There are lots of trees that have seeds that you can eat. Kylii trees grow on the river near the water and on the sand plains. They have a seed like a sweet pea-green and juicy. You get them in the right season. At this time of the year the seeds are dry.
Within the area of the proposed tenement there are some shrubs that are very powerful bush medicine. Only certain people can know about it. I am not able to tell anyone where it is. There shrubs grow throughout the tenement area. We do not show anyone. There is another kind of bush medicine that is a cure for toothache. You put the leaf of the warda warda tree on your tooth and it will stop aching.
Drilling and driving drill rigs and four wheel drive vehicles on the area of the proposed tenements will destroy some of the plants from which we collect our bush tucker and bush medicine. The presence of the drill rigs, four wheel drive vehicles and exploration teams will frighten off the animals.
I have been informed that if the proposed tenement is granted Bywood Holdings will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978
a.Reverse circulation drilling in areas of hypersaline groundwater.
b.Diamond (core) drilling.
c.The excavation of up to 1000 tonnes of material.
I have read the affidavit of Cedric Stileman Davies dated 17 December 2001 and understand what the above activities involve.
I have seen the damage that exploration can do to the land. The environment is very fragile. Ground and vegetation is disturbed when people drive over the area and create tracks. Nanda people are very concerned about destruction of flora and fauna within the area of the proposed tenement. If heavy machinery is driven over the land the damage may be permanent. I believe that conduct of these activities in within the area of the proposed tenement will involve a major disturbance to the land.
I am swearing this affidavit because I think that the area of the proposed tenement is very important to Nanda people that peoples should not be able to mine or drill or disturb the area of the proposed tenements unless they first talk to the right Nanda people who speak for the area, Nanda people will want to make sure that the graves, caves, spirits, serpents and the Dreaming stories are not disturbed and that important sources of food and bush medicine are preserved for future use.

SWORN by the said Deponent         )   Violet Drury
At Geraldton in the said State of       )
Western Australia this 20^th day of    )
December 2001                  )

I repeat, in respect of the map marked “A” referred to in Mrs Drury’s affidavit, the observation I have made in respect of Mrs Ryder’s affidavit.

[11] I do not set out in full the affidavits of Mr Davies or Mr Hill relied on by the objectors. Affidavits by each of them in similar or generally similar terms have been considered by the Tribunal in earlier determinations. Mr Davies is a qualified, experienced geologist and Mr Hill an anthropologist. They are each in the employ of the objectors’ representative, the Yamatji Land and Sea Council. I accept that each of them is capable and has expertise within his field.

[11.1] Mr Davies’ evidence is directed to s237(c) of the Act. He refers to the mining activities of reverse circulation drilling in areas of hypersaline ground water, diamond (core) drilling and the excavation of up to 1000 tonnes of material from any one tenement, which activities, he says, are permitted under an exploration licence. He recounts his experience in relation to reverse circulation drilling in hypersaline ground water conditions on ground the subject of a mining lease at Cuddingwarra resource area near Cue in the Murchison district of Western Australia where, he testifies, significant volumes of hypersaline ground water were ejected during drilling. He testifies that the runoff of that ground water and the development of access tracks associated with the drilling had a major impact on the area. By way of illustration there are annexed to his affidavit, photographs, two of which, taken in March 1999 on the mining lease, show apparent significant degradation of the land by way of apparent total loss of vegetation, one of those two showing also vehicle tracks on apparently saturated ground. A third photograph, taken in December 1988 of land approximately 4kms from the resource area, shows, by way of comparison, vegetation on the ground said to be similar to that on the photographed areas of the mining lease when Mr Davies first arrived there, the date of which is not stated. The affidavit also refers to the practice of using sumps in relation to diamond (core) drilling, generally created by excavation, the typical dimensions of which, he says, are approximately 4x4 metres wide by 2 metres deep. He also testifies that, on stated assumptions, the excavation of 1000 tonnes of material from an exploration licence will equal 500 cubic metres of material which could be sourced from an excavation with dimensions of 25 x 25 metres wide by 2 metres deep. Mr Davies’ affidavit however does not address the question whether the lands the subject of each of the proposed licences is of the same nature, including geological and environmental aspects, as the lands the subject of the affidavit. There is no evidence to suggest that the ground water relevant to any of the proposed licences is hypersaline or that the ground of each proposed licence is, in every relevant sense, identical or similar to that to which Mr Davies deposes. Further, the affidavit does not address the conditions which applied to the mining lease referred to and does not make clear whether or not rehabilitation had been or was proposed to be undertaken. It is in no way specific to any of the lands the subject of the proposed licences. In my opinion that affidavit evidence is insufficient to lead to a conclusion that the grant of any of the proposed licences is likely to involve major disturbance within the meaning of s237(c) as determined in Dann v Western Australia (1997) 74FCR391.

[11.2] Mr Hill testifies in his affidavit to anthropological research with the Nanda people including the area the subject of the proposed licences. His affidavit is directed to s237(b) of the Act. He speaks of the concern of the objectors that grievious damage may be caused by exploration activity and that only by appropriate and exhaustive consultation can they ensure there will be no such damage; of their concern as to damage to sites; of their belief in a former period of the world called a “Dreaming”; and of their custodial duty and responsibilities to the land. He also testifies that it is unlikely that the Register of sites will be an accurate record of all sites of significance within the area of the proposed licences. He speaks, in general terms, of what may constitute a significant site for the Nanda people and asserts that to them, all the land is special and some parts particularly significant. He asserts, on the basis of his research, that there are a number of highly significant sites within the “proposed tenement”, that the Murchison River is an important dreaming site and that the country and features “in the area” of the river, “including portions of the proposed tenement”; “are of particular mythological and ethnographic significance to many other Aboriginal people as well as the Nanda people”. He states that the very thought of exploration activity is upsetting to the Nanda community and causes distress to its members. The authority for making that statement and the nature of the upset and distress is not stated. Mr Hill’s evidence is not specific as to the location of any site of significance and, in particular, to that of any area or site of particular significance in accordance with their traditions to the holders of native title. It is general in nature and does not address the fact that there are five proposed licences or relate his observations to any particular one or more of them. The native title claimants are the Nanda people. That Aboriginal people other than the Nanda consider the country and features in the area of the Murchison River to have particular significance to them has no relevance to the objection. The Murchison River encroaches on only one tenement and extends for a considerable distance outside the tenements. Directions made in this matter on 10 August 2001 required the objectors to lodge and serve a statement of the nature and location of sites or areas of particular significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area. Neither the contentions nor Mr Hill’s affidavit provides that information. The directions made specific provision for information of a confidential nature to be provided to the Tribunal in a separate sealed envelope with information designed to protect its confidentiality. The objectors have not taken advantage of that provision. I find Mr Hill’s evidence of little assistance in determining the issues which arise under s237 of the Act.

[12] The Objector’s Contentions

[12.1] The objector’s contentions, like those of the State and Mr Hill’s testimony, speak in general terms and of the five proposed licences as if they were one tenement, ignoring the fact that the proposed grant of each licence is a separate future act. The objector’s contentions do not provide the information required by the directions as set out in the last paragraph. They do not dispute the State’s contention that there are no Aboriginal communities situate on or in the vicinity of “the proposed tenement”. They allege the carrying on “within the tenement area”, by members of the objector group, of the social and community activities of hunting, camping, visiting, the collection of traditional foods and bush medicines and “the use and enjoyment of the area”. They further allege that “the area the subject of the future act includes areas of particular significance to the objector” but provide no particulars thereof, contending that the “tenement area”, in its entirety, is of particular significance and that it contains numerous highly significant mythological, ceremonial and rock art sites, mythological sites connected to sites within and without “the tenement area”, ethnographic and archaeological sites, and areas of significance including camping and ceremonial places. They contend also that “the tenement” area is of economic importance because of traditional foods collected there. As to s237(c), they refer to the activities the subject of Mr Davies’ affidavit. In reply to the grantees’ contentions, summarised in the following paragraph, they contend the statements and assertions of fact and opinion therein to be unreliable and not supported by evidence.

[13] The Grantee’s Contentions

[13.1] The Grantee’s contentions deny any of the likelihoods the subject of s237. They assert that the grantee will not use seismic lines and bulldozers on hunting grounds and will be considerably further than 10kms from any community. The grantee alleges the hunting ground to be fully fenced and held under title or lease by pastoralists. It asserts that it has made numerous efforts to effect clearance activities with the objectors, that the objectors rarely carry on social or communal activities within the tenement area and that none live on the tenements. The contentions refer to the relatively large size of the total “tenement area” as allowing for the safe exercise of objector activities without interference. They state that the grantee wishes to carry out necessary site clearances, will only exercise low activity exploration and will not disturb any objectors living on the tenements, that it is willing to carry out a site inspection but that the objectors refuse to assist in delineating the same, and that the tenements are on an active Station frequently used by Station staff, agricultural staff, telecommunication safety personnel and a large number of guided bus and walking tourists. They refer to the conditions attached to the proposed tenements requiring the rehabilitation of any land disturbance and assert that the extraction and removal of 1000 tonnes of material is likely to involve minor disturbance only and will be controlled upon site clearance. They make submissions in relation to the affidavits of Mr Davies and Mr Hill, Mrs Ryder and Mr Randall which is not necessary to repeat in full. They allege the ground water in the Murchison area to be fresh and not saline, that the Kalbarri region is almost 370km from the inland desert areas of Cue, being located at the mouth of Murchison River, and that it does not contain saline water. They dispute Mr Davies’ comments on Diamond Core drilling, stating that such drilling has little significance, involves the removal of only minute amounts of material and creates extremely small disturbance. As to the reference to the permitted excavation of 1000 tonnes of material by Mr Davies, they contend that the construction of small dams within the tenement areas by the Station owners consists of the removal and bulldozing of up to 50 times the size of the excavation referred to by Mr Davies, and that the grantee is responsible, in any event, to rehabilitate any such excavation. They state that Mr Hill’s affidavit ignores the fact that the grantee has been prepared to carry to out site inspection surveys with the objectors and, in respect of sites referred to by Mr Hill, wishes them identified for the security of the project. They refer to the affidavit of Mrs Drury, pointing out that in its terms it is largely hearsay evidence. As to the affidavits of Lucy Ryder and Barry Randall the contentions assert that, although both display a knowledge of the Station, they rely on verbal history, neither living in the area. They allege the Station to be an operating Station as well as being an active important holiday tourist destination and that the grantee wishes to work in harmony with the legislative requirements of those activities as well as with the objectors. They further assert that since 1986, tenement areas have been granted to various holders who have carried out drilling activities from 1986–1993 amounting to more than 132 drill holes, with three trenches dug to a depth of three metres and approximately 100 tonnes of material being transported to Perth. They assert the location of these drill holes and excavation sites to have been lodged with the Mines Department in various technical reports, and that on field investigation by the grantee the only sign of past excavation was minimal disturbance in the area of the trenches.

[13.2] The grantees’ assertions of fact may well be correct in whole or part. They are however, in general, unsupported by evidence or agreement. It is significant that although the directions of 10 August 2001 required the State to provide (inter alia) details of prior mining tenements granted over the proposed tenements, including the date of grant and expiry, no such information has been provided. Thus there is no support for the grantee’s assertions as to prior tenements. It is also significant that, as a result of the discussion held at the listing hearing of 22 April 2002, the grantee was aware of the desirability of evidence to support statements of fact, but elected not to provide the same. However the contentions contain statements of the grantees’ intention which, of their nature, are incapable of proof but which I accept as its present intention, they being that the grantee (a) will exercise only low impact activity exploration; (b) is willing to carry out site inspections; and (c) that the excavations and removals permitted under s66(c) of the Mining Act will be controlled upon site clearance by the objectors. I do not however, accept as such a statement that the grantee will not use seismic lines or bulldozers on hunting grounds, as the “hunting grounds” are not defined by the evidence but would seem to include the total area covered by the proposed licences. I bear in mind that, in the absence of evidence to lead to a contrary conclusion, the grantees’ present intentions may be subject to change as circumstances arise.

[14] Much of Mr Randall’s evidence, particularly in respect of sites or places of significance, is unhelpful. He is one of the named objectors represented by the Yamatji Land and Sea Council at the directions hearing on 10 August 2001 when the objectors were directed to provide “a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements identifying in each case the particular significance of the site or area”. His evidence, generally, does not identify on which proposed licence area the sites or areas to which he refers are located. When he does depose that a site or area is on a particular proposed licence, he generally does not indicate its location thereon. The directions also made provision for documents of a confidential nature (including affidavits) to be made available to the Tribunal in a manner and with information designed to protect the confidentiality of relevant matters therein. The purpose of that provision was to enable compliance with directions in respect of material which the native title party might consider “secret” and not to be told to outsiders. Despite that being so, the affidavit alleges, in paragraph 7, the existence of sites of particular significance “in the proposed tenement area”, (without identification of which tenements) which could not be talked about to outsiders because they are secret. That evidence of location reveals no more than that such sites are somewhere, unspecified, within the 788.96km² area covered by the five proposed licences. The location of sites of particular significance must be known to the objectors for them to have significance within the meaning of s237(b) of the Act, and it is not suggested that they are not. Without reasonably specific evidence as to the location of sites which might be of relevant particular significance within the meaning of s237(b), it is impossible to know on which proposed licence and where (if one is named) on a proposed licence an alleged site is located and, (assuming relevant particular significance has been established), so to make a predictive assessment in respect of the issue of likely interference. The failure to provide such evidence deprives the other parties of any reasonable opportunity to refute or qualify the objector’s evidence in respect of the sites and the grantee of any reasonable opportunity to inspect a site and/or provide evidence directed to establishing that it will not, or that there is no real chance or risk that it will, be interfered with. I find the evidence in paragraphs 6 to 12 inclusive and 14 to 17 inclusive of Mr Randall’s affidavit to be inadequate as evidence of the identification of any area or site of relevant particular significance within the meaning of s237(b) on the land the subject of any of the respective proposed licences, the grant of each of which is a separate future act within the meaning of the Act. Each requires separate consideration in terms of s237. I refer however to paragraphs 8, 12 and 13. As to paragraph 8, it is not compliance with the said directions, to identify two hills by name and to assert that they are on “tenement 2242”. The photograph marked “G” there referred to is of poor quality and the hills cannot be seen. It provides nothing which indicates the location of the hills on the tenement. Their locations do not appear on the photocopy map marked “A” or on the State’s maps which were available to the objectors before the affidavits of Mr Randall, Mrs Ryder and Mrs Drury were sworn. That is also the case with the “two springs” referred to in paragraph 12. That the two unnamed springs are said to be on “tenement E70/2241 and E70/2242” does not identify their location. The two sites mentioned in paragraph 13 however, are each registered on the Register of Sites and identified on the State’s maps as being on E70/2206. Jibeenewajar is registered with a site type “mythological” and Nuningay Springs with site type “mythological and artifact”, both being classed as “reliable” with closed access. Jibeenewajar is shown on the map as located overlapping a road on the Parkland and Recreation Reserve on the western edge of the Murchison River and Nungingay Springs is shown as situated on the minor road which runs close to the coast north through E70/2206 and beyond it. The accuracy of the States maps is not challenged. That such last mentioned road enters the area of the proposed tenements from Kalbarri and runs in a generally straight line through E70/2206, E70/2219, E70/2241 and E70/2242 and beyond leads to the inference that it is a road used by Kalbarri people and others.

[15] In paragraph 20 of his affidavit Mr Randall refers to camping grounds “all through the area of the proposed tenements where we camp”, some of which are named and said to be on specified tenements and to be marked on the map marked “A” annexed to his affidavit. The “map annexed” is a photocopy. By an ink addition to his affidavit as typed, he refers to the “approximate location” of the camping “sites” on E70/2240, said to be indicated by a circled letter A on the map marked “A”. That symbol is marked on E70/2240 on that photocopy map, in ink, towards its northern and eastern boundaries. The number, size and distance apart of those sites are not revealed and there is no information to identify the specific location of any of them. There is no evidence as to who effected any of the markings on the photocopy map. Neither Mr Randall’s affidavit nor those of Mrs Ryder and Mrs Drury were lodged with the Tribunal, the objectors lodging instead a photocopy of each such affidavit with, annexed thereto, a bad black and white photocopy of a map, marked in ink “A”. The photocopy map is identical in each case. Not all the places referred to in paragraph 20 of Mr Randall’s affidavit can be located on that photocopy map and, to a large extent, the markings and printed names on it cannot be identified, large areas being blacked out. Comparison with the maps produced by the State on the basis of the Register of Sites information reveals that a number, but not all, of the places named are identified and located on the State’s maps. In some cases there are name differences between those shown on the photocopy map and those on the maps produced by the State, but some can be identified by the comparison. The objectors’ representative was subsequently asked as to the whereabouts of the original affidavits and the same were forwarded to the Tribunal. The map annexed to each and marked “A” is also a black and white photocopy, unclear in many respects but of a larger size then those annexed to the photocopy affidavits. It has marked on it the boundaries of the proposed licences and hatched areas of different shapes and sizes, much of which are, in some cases wholly and in other cases partially, blacked out by the quality of the photocopying. There are printed words underneath some of the hatchings which are, to a large extent indecipherable. The Tribunal was informed by the representative that the photocopy map marked “A” annexed to each photocopy affidavit is a reduced version of the photocopy map annexed to the respective affidavits. The former, however, is the document served on the other parties and lodged with the Tribunal. A coloured map, said to be the original map photocopied, was also sent to the Tribunal. It is the same map as that lodged with the objectors “Form 4 Objection”, said in paragraph 7 thereof to identify some of the “sites of significance” within the boundaries of the proposed tenements, they being shown on that map “in red”. It does not identify “the nature or significance” of any of the sites said to be on it, whether marked or not. Although I accept that the coloured map is the original, it is not the photocopy map identified by Mr Randall, Mrs Ryder and Mrs Drury and exhibited to their respective affidavits. It is much clearer, showing markings not identifiable on the photocopies. It is not said to have been relied on by those witnesses. It does not reveal which (if any) of the markings on it identify camp sites and it is impossible to identify on it any such location. Mr Randall’s evidence in relation to that map is most misleading. There is no evidence as to who marked the original map and/or any photocopy and no evidence as to the accuracy of any thereof. I am obliged to reach my conclusions on the basis of the photocopy map annexed to the affidavits of Mr Randall, Mrs Ryder and Mrs Drury but bearing in mind that it is not the photocopy served on the other parties. Of the camping grounds said by Mr Randall to be marked on the photocopy map (the Randall map), the names “Long Thicket Ball” (E70/2206) and “Nyllawaddatharra Soak” (E70/2219) appear on that map but are not marked in any way. The name in “Neernoongudda” (E70/2241) does not appear on the map. It may be a typing error for “Weerinoogudda”. Two places, Weerinoogudda Soak and Weerinoogudda Dams on E70/2241 are shown and marked on the Randall map and as registered sites on the State’s map. Neernoongudda may however, be a different place altogether. “Bookah Springs” (E70/2242) cannot be located on the Randall map. The State’s map however show registered sites “Bookah Shelter” on E70/2242 and Bookah Spring Caves in the close vicinity of E70/2242 but outside its western boundary on pastoral Station land. “Betty Crossing” (E70/2242) appears on both Mr Randall’s map and the State’s maps but not as a registered site on the State maps. The camping ground “Wee Warra” (E70/2242) cannot be located on either the Randall map or that of the State. However the name “Wee Warra Hill” appears on each such map but is not marked in any way on the Randall map and is not shown as a registered site on the State map. “Coolgudda” (E70/2240) is marked on the Randall map and as a registered site on the State map. “Bindara Well” (E70/2206) cannot be located on the Randall map. The name “Bindara” can be seen followed by a word which cannot be deciphered being covered by hatchings. There is no registered site of that name on the State map which does however show registered sites “Bindara South” and “Bindara Springs” each on freehold land, the former on the approximate location of the said indecipherable word on the Randall map.

[15.1] Of the registered sites to which I have referred above, Bindarra South has the site type of “ceremonial”, Weerinoogudda Dams the site type of “skeletal material/burial”, “artifact” and the remainder each have the site type of “artifact”. Many of the sites referred to by Mr Randall in paragraph 20 of his affidavit which can be identified, overlap or are closely adjacent to, roads which extend well beyond the area of the proposed licence on which they are located and, in some cases, the boundaries of all five proposed licences. Those sites and roads are clearly indicated on the State maps of the five proposed licences. Some of the roads form junctions with other roads running off in various directions. In respect of the camping places “Wee Warra” referred to by Mr Randall at paragraph 20 as Mrs Ryder amended paragraph 6 of her affidavit as typed, to delete “Wee Warra” from the list of such places. Mr Randall’s evidence in relation to camping areas goes no further then to identify them as places where “we camp”, save that he refers to a “story” associated with a soak at Bindara Well. He does not, however, give any indication as to the nature or content of that story so that its particular significance as a camping area can be identified. Neither of the words “Bindara Well” can be identified on E70/2206 on the reduced version of the Randall map served on the other parties.

[15.2] Mr Randall’s evidence as to activities on the proposed tenements is limited. It can be summarised as visiting the Station and camping at least once a week, taking with him 5 to 10 people, (which, it seems, usually includes children related to him), visiting places, telling the children stories, collecting bush turkey and medicines, hunting wildlife for meat, catching fish from the river and seafood from the ocean. His evidence contains no suggestion that the activities of camping, hunting and collection of bush tucker and medicine conducted on Murchison House Station are limited to the areas of the proposed tenements or even that they or any of them are preferred areas for those activities on the Station. He does not depose to where on the Station hunting is carried on, how often or by how many, if any, of the other objectors. He expressly states that the “Station, including the area of the proposed tenements, is a good area for bush tucker”. He does not depose to how the future act may impact on such activities. The concern he expresses is that the exploration activity will destroy the plants from which bush medicine is collected and frighten away the animals. There is nothing in his affidavit to suggest that there are not other areas on the Station or in its vicinity in the native title claim area equally suitable for camping, hunting or for collection of bush tucker or bush medicine. Indeed in paragraphs 21, 22 and 25 he makes plain that such activities are conducted all over the Station. The “area of the proposed tenements” is of such dimensions (788.96kms²) that, on the evidence, there is no real risk that the exploration activities being conducted at any one time on any part of it will significantly interfere with the objectors said activities.

[16] Mrs Ryder’s evidence suffers from the same lack of particularity, especially in relation to location of sites and places, as that of Mr Randall and Mrs Drury. Her evidence as to camping, collection of bush tucker and hunting appears to be limited to her experience in “the old days” when “she was young”. She testifies to being 87 years of age at the date of her affidavit. The places she names as camping places are “where we camped” in the old days. Her evidence as to current camping is limited to an assertion that some of her relatives “still go out there camping”. She gives, however, no indication as to who those relations are, how many there are or how often they go “there”. It is not in dispute that Mr Randall is her cousin. I conclude from the content of her affidavit that she has only hearsay knowledge of the present activities of hunting, camping and the gathering of foods and medicines from the Station. She does not indicate on which place or places the hunter’s camp. Her evidence as to sites relating to Dreaming stories does not identify the location of any of those to which she refers. In paragraph 9 she refers to corroborrees that used to be held “around” the Station, naming two places where they were held, one outside the area of the tenements and the location of the other unstated. She asserts the present existence of a large corroboree ground at Weerinoogudda Dam within E70/2241. She does not identify it as a place where corroborrees “used to be (or are) held”. Mr Randall at paragraph 15 refers to a place “Weerinoogudda” as a big corroboree ground, but does not say where it is. There is no registered site of that name or any of the maps in evidence. The material provided by the State reveals “Weerinoogudda Dams” to be registered on E70/2241 with site type “skeletal material/burial, artifact,” as reliable and with open access. It also shows a registered site “Weerinoogudda Soak” some 2kms from Weeinoogudda Dams with site type “artifact”, reliable and with open access. They are each marked on the Randall map, but with no indication of their significance. The place “Maluwaa” referred to by Mrs Ryder in paragraph 10 is not identified in any of the maps in evidence. In paragraph 14 she refers to a place “Idimba near Bindari Well” within E70/2206. The names “Idimba” and “Bindari” cannot be located on the photocopy map annexed to her affidavit, or the State’s map. Its proximity to “Bindara Well” is a matter of conjecture. She does not purport to rely on that photocopy map in any respect other than as “showing the location of the proposed tenements”. At the date of her affidavit the objectors had the material provided by the State, including the maps showing the location of registered sites. There is no suggestion in the evidence that either “Bindari Well” or “Bindara Well” is another name for either Bindara Springs or Bindara South. At paragraph 15 she refers to a Dreaming story connecting two sites within E70/2206, “Jibeenewajar” and “Nuningay Springs”. I have already referred to those sites in relation to Mr Randall’s evidence, I note that the story, as both Mrs Ryder and her daughter Lucy Drury understand it, is that a sand lark started at one site, went through, and came out at the other. Mr Randall’s evidence differs in that he deposes that it was a serpent which went in at one end and came out at the other and that the name Jibeenewajar means sand lark. The difference is a little surprising considering that each of Mr Randall, Mrs Ryder and Mrs Drury depose to being recognised as speaking for and knowing the sites and traditional stories of the Murchison House Station country. However, having regard to the similarity of their evidence as to the dreaming story relating to those two sites, and the site type, reliability and access particulars of each as revealed by the Register of Sites information, I accept that each is one of relevant particular significance within the meaning of s237(b). As to s237(c) Mrs Ryder expresses concern that the exploration activities involving drilling, drill rigs and 4wheel drive vehicles will destroy some of the plants from which the people collect bush tucker and bush medicine and will frighten away the animals.

[16.1] The photocopy map annexed to Mrs Drury’s affidavit is identical to and suffers the same defects as that annexed to the affidavits of Mr Randall and Mrs Ryder. Mrs Drury relies on it only to identify the location of the proposed licences. She deposes to being recognised for knowing the sites and traditional stories of the area of Murchison House Station, and refers to Dreaming stories associated with natural features, some of which, she says are “within the area of the proposed tenement”. In paragraph 5 she speaks of her mother, her grandmother and their families having lived in camps on the Station camping “all over the Station” including the area “of all of the proposed tenements”. In paragraph 6 she names camping places told to her by her mother and said to be on specific tenements but without indicating in her affidavit or on the annexed map their locations. Some of the names can be found on the map others cannot. She says that “quite a few” Nanda people still go to the Station and camp regularly within the area of the proposed tenement. She does not otherwise indicate how many go, how regularly they go or where they are said to so camp. Her statement that “there are many other places where we camped but there are too many to name” appears to be a restatement of that sentence in paragraph 6 of her mothers affidavit. In paragraph 7, in terms identical to paragraph 10 of her mothers affidavit, she refers to a place Maluwaa, on the opposite side of the river to Paradise Flats within “the tenement area” which she says “was” a place where people camped and went fishing, stating that she had camped there quite a few times. The location of that place is not identified in any of the maps in evidence. Like Mr Randall she cites the records of the Register of Aboriginal Sites to state that there are 53 recorded sites (as opposed to the 47 to which I have referred) within the total area of the tenements. That information is not accompanied by a map locating those sites but does provide coordinates to enable the location to be identified. The maps produced by the State showing the location of such sites in respect of each proposed licence show some of the 53 listed sites as being outside the boundaries of the same and two, “Wheelarra Spring” and “Wheelarra North”, to be situated on the common boundary of E70/2241 and E70/2242 and their names to be duplicated, being listed in respect of each. In common with Mr Randall and Mrs Ryder, Mrs Drury asserts that the number of recorded sites show how important “the whole area” is to the Nanda people. Although I accept that the land the subject of their claim is important to the people, I do not accept that the degree of that importance does not vary with respect to different areas of the “whole area” to which she refers. Although there are some concentrations of registered sites as shown on the State maps of E70/2206 and E70/2242, those concentrations and other sites are separated by considerable distances from one another over the 788.96kms², the subject of the proposed licences. As is the case with the evidence of Mr Randall and Mrs Ryder, Mrs Drury’s evidence does not identify with any particularity the location of any area or site of relevant particular significance on a specific proposed tenement or at all. Paragraph 16 of her affidavit, however, confirms the evidence of Mrs Ryder (at paragraph 15 of her affidavit) and, leaving aside the difference between “serpent” and “sand lark” which appears in paragraph 13 of Mr Randall’s affidavit, the particular significance of the two sites there mentioned in terms of the dreaming story with which they are associated. As I have already found I am satisfied that the two sites mentioned in those paragraphs (Jibeenewajar and Nungingay Springs), are each sites of particular significance within the meaning of s237(b). They are approximately 7km² apart. In paragraph 21 Mrs Drury speaks of corroboree places as told to her by Mrs Ryder. Like Mrs Ryder she mentions two as being places where corroborees “used to be held” around the Station but gives insufficient evidence for their respective locations to be identified on any of the proposed licences. As did Mrs Ryder she then asserts the existence of a large corroboree ground, “Weerinoogudda Dam” on tenement E70/2241. Paragraphs 22 to 27 of Mrs Drury’s affidavit do not lead to the identification of areas of sites of particular significance on or in the vicinity of any specified proposed tenement likely to be interfered with by its grant. Paragraphs 28 to 35 of her affidavit refer to the collection of bush tucker from Murchison House Station, which she visits approximately every two months “including the area of the proposed tenements”. She says that they collect bush tucker within that area. That is a reference to collection from an area of 788.76km². There is no suggestion that it is not also collected elsewhere on the Station or that the proposed tenements are a preferred area. Her evidence that she does not go to the Station on her own, but always with a car load of 4 to 5 people is inadequate, in my opinion, to establish a community or social activity of the holders of native title. There is no indication as to whom the 4 or 5 people might be, whether they are members of the claim group or merely friends. As she says “we just go just to have a look and collect whatever bush tucker is in season”. She does not depose to any activity of camping or hunting. She refers to the existence of wildlife on the proposed tenements. As is the case with the evidence of Mrs Ryder and Mr Randall, she does not depose to or even suggest that the respective activities of which she speaks are limited to the areas of or to any particular area or areas within the proposed tenements, or that these areas are, in any significant way, better or more suited for the activities than any other part of the Station. She tells of catching fish from the river and seafood from the same but does not suggest that these activities will, or how they might be, interfered with by the proposed future acts or any of them. Paragraphs 36 to 38 of Mrs Drury’s affidavit refer to the exploration activities as outlined in Mr Davies’s affidavit, state that she understands what these activities involve, that she has seen damage that exploration can do and believes that exploration activity will destroy some of the bush tucker and medicine plants, will frighten off the animals and will involve major damage. There are no details of the nature of the damage she has seen, where and when it took place, the particular activity which involved the disturbance and whether or not the damaged land was rehabilitated.

[17] The legal principles that apply in relation to the meaning and effect of s237 of the Act in the making of a determination pursuant to an expedited procedure objection application are now, with some few exceptions, clearly established and do not require repetition on each such determination. They are set out by Deputy President Sumner in Walley and Boddington and others/the State of Western Australia/Giralia Resources NL (WO01/179 and WO01/180: 8 March 2002) under the heading “legal principles” at paragraphs [7] to [23] inclusive. Subject to the comments I now make I agree with and adopt the same.

[17.1] I find no real distinction between my conclusion in Smith and Ors/State of Western Australia/South Coast Metals Pty Ltd (WO99/5111, 23 June 2000) that s237(a) is concerned with and limited to interference with the physical aspects of the carrying of community or social activities and those of Member Sosso in Moses Silver referred to by Deputy President Sumner in Walley and Boddington. My conclusion did not and was not intended to negate any spiritual dimension attaching to such an activity. At paragraph [16] Member Sosso said “it would seem that the post 1998 wording of paragraph (a) is focused on the active manifestation of the communal life in the form of community or social activities”; at paragraph [56] he said that, in the event of an issue as to the effect of s237(a), “there would have to be material before the Tribunal that the future Act would be likely to have direct physical interference with activities which would in turn impact on the spiritual dimension of those activities”. It seems clear therefrom that there is no dispute that the subsection is directed to interference directly with the physical aspect of the relevant activity, whether or not it has a spiritual dimension and wherever it is carried on.

[17.2] In my opinion, in construing s237(a), it is necessary to first identify the activity in question. To that end it is necessary to have evidence of its nature. It may or may not be spiritual in nature or have a spiritual dimension. It is then necessary to identify from the evidence how the activity is carried on in the sense of how it is conducted. That in my view involves a consideration of the physical aspects of the carrying on of the activity as disclosed by the evidence. The next step is to assess whether the carrying on of the activity is likely to be interfered with directly by the future act. That requires a predictive assessment as to how (if at all) implementation of the future act is likely to impact on the carrying out of the activity. Section 237(a) is directed expressly to the issue of the likelihood of interference directly with “the carrying on”, ie. the conduct, of the activity. A distinction between the activity as such, and the physical aspects of carrying it on, is there apparent. In my opinion, that the nature of the relevant activity may have a spiritual dimension does not directly impact on the question whether the future act is likely to interfere directly with the carrying on of that activity. It may be that the “carrying on” involves some physical act or acts which have spiritual significance, but in such case it is nevertheless the “carrying on”, ie. the physical conduct of the activity, with which the subsection is concerned. Prior to the 1998 amendment s237(a) was concerned with interference with “communal life”. That term necessarily involved consideration of interference with aspects of community life which did not necessarily involve physical activity.

Conclusions
[18] s237(a)

[18] I am satisfied on the evidence that some of the Nanda people carry out the activities of hunting, camping and the collection of bush foods and medicines on Murchison House Station and that some of it is carried on on the land the subject of at least some of the proposed licences. However the evidence does not lead to a conclusion that many of the people do so and does not enable me to conclude that any of those activities are regularly conducted on any particular area of the Station or on any land the subject of any particular proposed licence. The total area of land covered by the proposed licences is 788.96km². The total area of Murchison House Station has not been provided to the Tribunal but the affidavits and maps make clear that it is substantially larger than that the subject of the proposed licences. Mr Randall testifies that he goes to the Station “including the area of the proposed tenements at least once a week” taking with him other people, “usually one or two car loads (5 to 10 people)”. For reasons made apparent earlier herein I have reservations as to the reliability of Mr Randall’s evidence, but in any event it is extremely sketchy as to activities carried on the proposed exploration licence land. Mrs Ryder testifies that Mr Randall “sometimes” brings her bush tucker which he collects “from within the area of the proposed tenements”. How she knows from what area the bush tucker brought to her comes is not explained. Assuming that the “sometimes” to which she refers in her affidavit (sworn 18 December 2001) extends back beyond 21 March 2001 (the date of the s29 notice), the “area of the proposed tenements” did not then exist. Mrs Drury testifies that she visits the Station including the area of the proposed tenements approximately every 2 months, taking with her 4 to 5 people “to have a look and to collect whatever bush tucker is in season”. Murchison House Station is a pastoral Station. It follows that activities in connection with its operation take place within the area covered by the proposed licences and that the collection of plants and vegetation and the presence of kangaroos and other wild life on any particular part of the Station will, from time to time and place to place, be interfered with by the presence and movement of life stock, the activities of the leaseholder, his employees, visitors and others, and by vehicles using the roads which run on and/or through each of the proposed licences. The road that runs from Kalbarri, close to the coast through four of the proposed licences and beyond indicates the use of that road by travellers not necessarily connected with the Station activities. The location of fences and roads and the distribution thereof as shown on the State’s maps indicates necessary Station activity on each of the proposed licences involving vehicles. The said roads travel through or adjacent to at least the following camping places deposed to by the witnesses: Carrollgouda Well, Gee Gie outcamp, Modesty Villa Dam (shown on the map as Barrdi Dam) on E70/2241, Long Thicket Bore on E70/2206, Coolgudda on E70/2219. Also relevant to the question of disturbance of wildlife interfering with the hunting activities of the objector is the existence of two airway landing grounds, one on the south boundary of E70/2206 and one adjacent to a road on E70/2242. Taking into account all of these matters I find the evidence to be not such as to give rise to a likelihood that the grant of any of the proposed licences will, in a substantial way, interfere directly with the carrying on of any of the activities of which the objector’s witnesses have given evidence.

[19] s237(b)
[19] I find that the evidence adduced for the objectors fails to provide the location of any of the sites and places deposed to in the respective affidavits of their witnesses. The locations of some of them however are identified by reference to the maps provided by the State. The places so identified are those camping areas which are registered Aboriginal sites under the Aboriginal Heritage Act 1972 (The “AHA”), and also the registered sites Jibeenewajar and Nungingay Springs on E70/2206. It may be that the place Weerinoogudda referred to by Mr Randall as a corroboree ground is intended as a reference to Weerinoogudda Dams, a registered Aboriginal site said by Mrs Ryder to be a large corroboree ground within E70/2241. Weerinoogudda Dams has a site type “skeletal material/burial, artifact”. One would expect each of the three witnesses, having regard to their claims to speak for and know these sites and traditional stories of the people, to be aware of places which fit the site type “skeletal material/burial”. None of them however refer to a burial ground or any place which fits that description. There is no evidence that the registered site description is wrong or that it is appropriate to a corroboree ground. There is a registered site Weerinoogudda Soak some 2kms from Weerinoogudda Dams on E70/2241. It is possible on the evidence that the corroborree ground is also in the vicinity and known as “Weerinoogudda” as deposed to by Mr Randall. I am not satisfied on the evidence that Weerinoogudda Dams is in fact a corroborree ground. The fact that a site or place is registered on the Register of Aboriginal Sites under the AHA, either with or without a site type is, of itself, not evidence that it is a site or place of relevant particular significance for the purposes of 237(b). A registered site type, it seems, is a classification given to the site or place by the Registrar under the AHA according to the information and evidence available to him. For the purpose of s237(b) however, evidence of the relevant particular significance must be provided. I find the evidence to establish only the registered sites Jibeenewajar and Nuningay Springs to be sites of particular significance within the meaning of s237(b) of the Act on any of the five proposed licences.

[19.1] Whether registered or not and whether or not of relevant particular significance within the meaning of s237(b), Aboriginal sites and places on land to which the AHA applies have the protection of that Act (s5). So, whether or not Weerinoogudda Dams is a corroboree site, it has that protection. There is no doubt that that Act applies to Aboriginal sites on the land the subject of the proposed licences and in the vicinity thereof. In Walley and Boddington at paragraphs [50 to 51] the Deputy President Sumner summarised the operation of the AHA as follows:

“The operation of the Aboriginal Heritage Act in Western Australia can be summarised as follows. It contains provision for the protection and preservation of Aboriginal sites. Section 17 creates an offence for a person to excavate, destroy, damage, or in any way alter an Aboriginal site unless acting with the authorisation of the Registrar of Aboriginal Sites under s 16 or the consent of the Minister under s 18. Section 16 allows the Registrar on the advice of the Aboriginal Cultural Material Committee, set up to assist in the administration of the Act, to authorise the excavation of an Aboriginal site and the removal of anything on or under it. Section 18 provides for the Minister to consent to the use of land which otherwise might result in a breach of s 17. A defence to a prosecution under s 62 of the Aboriginal Heritage Act is provided for in circumstances where the person charged can prove that he did not know and could not reasonably be expected to have known that the place was a site to which the Act applies. In all cases when an exploration licence is granted the Department of Mineral and Petroleum Resources sends to the licensees a document entitled Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers. This document outlines the relevant legislation including the Aboriginal Heritage Act and contains detailed guidelines relating to consultation with the Aboriginal people including information about various methods of ensuring that there is no interference with Aboriginal sites.

Using the presumption of regularity, the Tribunal has generally found that this regulatory regime is adequate to ensure that there was not likely to be interference with sites of particular significance. In part this conclusion was based on the defence not being available to a person who interfered with a site, given the endorsement on the licence and that the Guidelines would have put them on notice of their obligations under the Aboriginal Heritage Act. This approach was recently endorsed by RD Nicholson J in Little (at [77]). In other matters, because of the number and nature of sites or because whole areas were regarded as of particular significance, the Tribunal has found that the expedited procedure was not attracted. (Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, Mrs Jennifer Stuckey-Clarke, 19 December 2001 and Maureen Young (Ngadju People)/Western Australia/South Coast Metals Pty Ltd, NNTT WO00/402, Mr John Sosso, 7 June 2001.)”

I agree with and adopt that summary.

[19.2] Jibeenewajar and Nungingay Springs, each a site and the only sites I find to be of relevant particular significance, and all other registered and unregistered Aboriginal places and sites on and in the vicinity of the proposed licences, whether or not they are identified or have relevant particular significance, have the protection of the AHA. Jibeenewajar and Nungingay Springs are each on a road in close proximity to other roads. Jibeenewajar is also on the Parkland and Recreation Reserve. Mining on such a Reserve requires the written consent of the Minister who may impose conditions (Mining Act s24 to 26). That the objectors failed to comply with the directions of 10 August 2001 to provide “a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area”, and failed to provide evidence from their witnesses which would satisfy that direction, leads to the inference that the location of sites to which the witnesses refer without providing sufficient information to identify their locations, are not known to the objectors. It may be that, in respect of registered sites, they relied on the maps provided by the State. That however was not Mr Randall’s evidence in respect of camping sites, he relying on the markings on the photocopy map annexed to his affidavit, and it does not explain the lack of adequate evidence of location in respect of the unregistered sites and places. Assuming however, the existence of those sites and places (the assumed sites), they too, even though unregistered, are protected by the provisions of the AHA. Had the objectors complied with the said directions and supported the directed statement by evidence, there would be no doubt that the defence under s62 of the AHA would not be available to the grantee in the event of it excavating, destroying, damaging or in any way altering any of the assumed sites. Were the objectors to identify to the grantee the specific locations of those sites, that defence would not be available and, in the event of the grantee doing any such thing, it would be guilty of an offence and subject to prosecution. Assuming the existence and significance of those sites and having regard to their responsibility to the land, that would seem a very probable and logical action for them to take. The State’s contentions reveal the grant of any of the proposed licences will include an endorsement drawing the grantees’ attention to the provisions of the AHA. The grantee has indicated in its contentions its willingness to carry out site inspection and control its operations under s63 of the Mining Act upon “site clearance by the objectors”, which involves identification of sites. It is open to the objectors at any time to identify the locations of the assumed sites to the grantee, thereby securing the protection of the Act, as well as that provided by ss20 (Pastoral lease land), 24 and 26 (Reserve land), 29 (Private land), and 63 of the Mining Act (deemed conditions) together with the conditions which will apply to each proposed licence as set out in the second schedule to the State’s Contentions. For the above reasons I find the grant of any of the proposed licences is not likely to interfere with areas or sites of particular significance in accordance with their traditions to the objectors in relation to the lands or waters concerned.

[20] s237(c)

As already found, the evidence of Mr Davies does not lead to a conclusion that the grant of any of the proposed licences is likely to involve major disturbance within the meaning of s237(c) of the Act as determined in Dann v Western Australia (1997) 74FCR391. It is the obligation of the Tribunal to assess whether the grant of any of the proposed licences is likely to involve major disturbance to the lands or waters concerned or create rights the exercise of which will involve major disturbance. As has been made clear in Dann v Western Australia the question whether there is a likelihood of major disturbance is to be determined from the viewpoint of the general community, but taking into account the concerns of the local Aboriginal community as disclosed by the evidence. A mere assertion of the likelihood of major disturbance is not enough. The relevant evidence of Mr Randall, Mrs Ryder and Mrs Drury is essentially no more than an assertion that exploration and its associated activities, including the use of machinery and 4 wheel drive vehicles, will, or is likely to, disturb and destroy sites, plants, the ground and vegetation. Also relevant to my conclusion are the following matters. 1) The respective areas of the proposed licences as well as their collective area. 2) That there are no Aboriginal communities on any of them. 3) That they are each the subject of pastoral activities. 4) That roads run through each of them. 5) The distribution of those roads. 6) That some roads connect with the Township of Kalbarri, and others go beyond the boundaries of the proposed licences, some onto freehold land. 7) The presence of the Parkland and Recreation Reserve on E70/2206 with roads entering it from outside and extending into Kalbarri. 8) That (6) and (7) above lead to the conclusion that some, at least, of such roads are used not only for pastoral activity but by outsiders. 9) That the hunting and camping of which evidence has been given is conducted over the whole area of the proposed licences and beyond on the Station by a limited number of people. 10) That the identified sites on each proposed licence are registered under the AHA. 11) The conditions to be imposed on each licence which govern ground disturbing activities together with the requirements for the remedying of ground disturbance caused by exploration activity.

Having regard to all such matters I am satisfied that the grant of each proposed licence is not likely to involve major disturbance within the meaning of “major disturbance” as determined in Dann v Western Australia.

Determinations

The determination of the Tribunal that the grant of each of the exploration licences E70/2206, E70/2219, E70/2240, E70/2241 and E70/2242 is an Act which attracts the expedited procedure.

The Hon. E.M Franklyn QC

Deputy President