Wajarri Yamaji Aboriginal Corporation RNTBC v Black Raven Mining Pty Ltd
[2021] NNTTA 80
•22 December 2021
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC v Black Raven Mining Pty Ltd and Another [2021] NNTTA 80 (22 December 2021)
Application No: | WO2020/0708; WO2020/0709; WO2020/0790; WO2020/0791 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007; WCD2018/002)
(native title party)
- and -
Black Raven Mining Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 22 December 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere with sites or areas of particular significance – expedited procedure – acts are not acts attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) ss 17, 18 Mining Act 1978 (WA) s 58 Native Title Act 1993 (Cth) ss 29, 30, 31, 141, 151, 237 |
Cases: | Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd, [2012] NNTTA 56 (‘Badimia v Western Australia’) Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (‘Bunuba v Oladipo’) Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (‘Wajarri Yamatji (No 3)’) Hamlett on behalf of Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (‘Wajarri Yamatji Determination 2018’) I.S (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (‘Wajarri Yamatji Determination 2017’) Marputu Aboriginal Corporation RNTBC (ICN8085) v Peter Romeo Gianni [2019] NNTTA 18 (‘Marputu v Gianni’) Michael Ross & Others on behalf of Cape York United Number 1 Claim v Gamboola Resouces Pty Ltd and Another [2018] NNTTA 10 (‘Ross v Gamboola Resources’) Mervyn Counsillor & Others on behalf of the Southern Yamatji People v Conventry Enterprises Pty Ltd and Another [2020] NNTTA 59 (‘Southern Yamatji v Coventry Enterprises’) Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Geotech International Pty Ltd, [2011] NNTTA 48 (‘Wajarri Yamatji v Western Australia’) Ward and Others v State of Western Australia and Another [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172 (‘Weld Range’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representative of the native title party: | Marcus Holmes, Land Equity Legal |
| Representative of the grantee party: | Jacob Loveland, Lawton Macmaster Legal |
| Representatives of the Government party: | Chen Da Tan, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This decision concerns whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licences E51/1955, E51/1956, E51/1965 and E51/1966 (licences) to Black Raven Mining Pty Ltd (Black Raven).
The licences are located near Meekatharra in Western Australia. Wajarri Yamaji Aboriginal Corporation (WYAC) holds native title in trust for the Wajarri Yamatji common law holders in relation to the whole or part of the area of each licence (see Wajarri Yamatji Determination 2017, Wajarri Yamatji Determination 2018 and Wajarri Yamatji (No 3)).
The State of Western Australia (State) considers the grant of each licence is an act attracting the expedited procedure under the NTA and included a statement to that effect in notices given under s 29 of the NTA.
WYAC opposes the application of the expedited procedure to the grant of the licences. At the time of the State’s s 29 notices in November 2020, WYAC was not the registered native title body corporate for the licence areas and objections were lodged by the then native title party, the registered native title claimant for the Wajarri Yamatji native title determination application (WAD28/2019) (Wajarri Yamatji Claimant).
On 29 July 2021, WYAC became the registered native title body corporate and a party to the objection applications (ss 30(1)(c) and 141(2A) NTA). The Wajarri Yamatji Claimant is no longer registered in relation to the licence areas and has ceased to be a relevant native title party (s 30(2) NTA).
I have been directed to constitute the Tribunal in order to determine whether or not the expedited procedure applies to the grant of each licence. For the reasons outlined below I have concluded that the grant of each licence is not an act attracting the expedited procedure.
Determination on the papers
These matters are being dealt with together and each party has provided material in accordance with the Tribunal’s directions.
The State provided contentions together with mapping, Quick Appraisals containing key tenement information for each licence, Aboriginal Heritage Inquiry System (AHIS) searches, a copy of each licence application together with accompanying statements in accordance with s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of each licence.
On 7 July 2021, the Wajarri Yamatji Claimant provided contentions and an affidavit of Mr Kevin Walley, sworn on 5 July 2021. WYAC later provided contentions in reply which, in response to certain criticisms of the evidence raised by the State and Black Raven, included some additional mapping and a further explanation by Mr Walley regarding areas or sites relevant to my consideration of s 237(b) below. None of the other parties has raised any concern with the inclusion of that additional material nor sought to respond to it, and I have taken it into account.
It is worth noting that the way the native title parties have argued this matter has not been particularly helpful to my consideration of the evidence. The fact that so much clarification was required in reply bears this out. The inquiry would have benefitted from more targeted contentions from WYAC directed to the discrete issues for the inquiry rather than the somewhat diffuse approach taken.
Black Raven provided contentions and documents relating to S2 Resources Limited (S2R), the relevance of which is discussed further below.
The State and WYAC agreed to the applications being determined on the papers as permitted by s 151(2). Black Raven did not express a view. Having considered the material provided, I am satisfied these matters can be adequately determined without a hearing.
What are the issues for this inquiry?
As noted, the purpose of the Tribunal’s inquiry is to determine whether or not the grant of any of the licences is an act attracting the expedited procedure under the NTA. If so, then the grant can proceed without first requiring negotiation in good faith under s 31(1)(b) of the NTA. If not, then the negotiation parties, being the State, Black Raven and WYAC, must negotiate in good faith with a view to obtaining WYAC’s agreement to the grant.
While a native title party may have a range of concerns about the grant of a tenement, those matters are not necessarily relevant when it comes to the Tribunal’s determination.
The issues for the Tribunal are governed by s 237 of the NTA which defines when a future act is an act attracting the expedited procedure. In summary, the grant of a licence will only be an act attracting the expedited procedure if it is not likely to:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
In order to decide whether the expedited procedure applies, I am required to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of each licence (see overview of approach in Yindjibarndi v FMG at [15]).
Despite the scope of its Form 4 applications, WYAC says that it is limiting its contentions and evidence to s 237(b). In its reply (at paragraph 37) it acknowledges that Mr Walley’s evidence also touches on community or social activities that may be considered relevant for s 237(a) but stresses that it does not seek to rely on s 237(a) or (c) and any such evidence is included only to support its position on s 237(b).
The Tribunal takes a common sense approach to the evidence as discussed in Ward v Western Australia (see pages 216-218), and given WYAC does not press any objection under s 237(a) or (c), I do not propose to address those matters in any detail. On the material before me, there is no basis to conclude interference of the kind outlined in s 237(a) or major disturbance within s 237(c) are likely.
Details about the licences
The State’s Quick Appraisal document includes the following details about the licences and the area in which they are located:
Licence No.
Area
(in hectares)Underlying land tenure
Overlapping current tenements
E51/1955
14114.08
‘C’ Class Reserve (R 10367) - Wandry Springs Cue Stock Route 4.35%
L51/105 – EV Metals Australia Pty Ltd 56.24% (Live)
Pastoral Lease (PL N049563) - Belele – Aboriginal Corporation 95.32%
L51/109 – EV Metals Australia Pty Ltd 25.63% (Pending)
E51/1956
18388.05
‘C’ Class Reserve (R 10367) - Wandry Springs Cue Stock Route 11.56%
L51/105 – EV Metals Australia Pty Ltd 64.63% (Live)
Pastoral Lease (PL N049563) - Belele – Aboriginal Corporation 85.3%
L51/109 – EV Metals Australia Pty Ltd 0.01% (Pending)
Pastoral Lease (PL N050577) - Annean 3%
E51/1965
8601.57
Pastoral Lease (PL N050205) – Koonmarra 99.03%
Nil
Pastoral Lease (PL N050591) – Judal 0.97%
E51/1966
3683.38
Pastoral Lease (PL N050205) – Koonmarra 99.82%
Nil
Road Reserves (No. 9099)
The State’s mapping shows that licences E51/1955 and E51/1956 are adjoining and E51/1965 and E51/1966 are near to each other but not adjoining. According to the AHIS searches, there are no registered Aboriginal sites or other heritage places in the area of any of the licences.
Each of Black Raven’s s 58 statements give an indication of its proposed exploration activities for years one and two, summarised in its contentions (at paragraph 43) as follows:
… during the first year of grant, a detailed literature and data review followed by field mapping and rockchip and soil sampling in order to generate and rank drill targets. Exploration during the second year would include geophysical surveying and, if justified, exploration drilling. Further exploration is contingent on the results in years one and two.
The estimated exploration expenditure for each tenement for year 1 ranges from $22,000 for E51/1966 to $64,000 for E51/1956. Each estimate includes either $2,000 or $3,000 for “Geological management (Admin), Native Title and Cultural Heritage”.
In its contentions, Black Raven explains that it has entered into a farm in agreement with S2R with respect to a number of adjacent tenements and says that it is likely S2R will be the primary party funding and undertaking exploration on the licences.
The documents relating to S2R provided with Black Raven’s contentions are a series of Australian Securities Exchange (ASX) announcements made by S2R about its agreement with Black Raven and project updates.
Annexure 1 is an ASX announcement by S2R dated 5 October 2020 entitled “New Western Australian Gold and Base Metal Project”. The first page includes the following statement regarding the arrangement with Black Raven:
S2 Resources (“S2” or the “Company”) advises that it has entered into a binding agreement with private company Black Raven Mining Pty Ltd (“BRM”) to earn a majority interest in a group of tenements known as the Jillewarra project located approximately 50 kilometres west-northwest of Meekatharra in the Murchison goldfields of Western Australia (see Figure 1).
The Jillewarra project covers an area of 790 square kilometres and a strike length of 50 kilometres of a greenstone belt that is considered highly prospective for gold and base metals (see Figure 2). Although the project area has been subject to intermittent prior exploration, drilling is of limited extent, effectiveness, and depth, and the exploration potential is high.
Section 2 of Annexure 1 includes a table of tenements which form part of the Jillewarra project, the majority of which are granted. The licences in issue here are included but shown as pending. Figure 3 depicts the project area including an outline of the granted and pending tenements. It appears from Figure 3 that E51/1965 and E51/1966 are located towards one end (the north-westerly end) of the project area and E51/1955 and E51/1956 are at the other (south-easterly) end.
Annexure 2 is an ASX announcement by S2R dated 27 January 2021 entitled “December 2020 Quarterly Activities Report”. It includes information about a range of S2R projects and, in relation to the Jillewarra project, states (at page 4):
During the December quarter, S2 completed heritage surveys over initial exploration target areas. Reverse circulation (RC) drilling is planned to commence in the March quarter at the Dorothy and Margueritta prospects.
Annexure 3 is an announcement regarding the March 2021 quarterly update, which at page 2 states that the first rounds of drilling occurred at the Dorothy and Margueritta prospects, described as “located at the southeastern end of the Jillewarra project area”. As submitted by Black Raven, these updates relate to the areas subject to granted tenements, not the licences.
Annexure 4 is a further ASX announcement entitled “Drilling extends Margueritta Zone and Rockchip Sampling Identifies New Parallel Gold Trend at Jillewarra’. At page 4 it states:
Jillewarra remains largely under explored with 50 kilometres strike of prospective Archaean greenstone geology and very limited drilling below 70 meters. S2 will continue its systematic approach to identify and drill test targets throughout the Jillewarra Belt. To date, 30 targets have been identified based on structural and geological interpretation, evidence of historical workings and historical exploration data.
Figure 1 in Annexure 4 indicates that the Dorothy and Margueritta prospects are located as described in Annexure 3, that is, at the south-eastern end of the project, near to the north westerly corner of E51/1956 where it abuts E51/1955.
While the project updates naturally relate to activities on granted tenements, these documents provide some insight into S2R’s intentions for the project generally, including the licences in issue here. Black Raven contends that the activities undertaken by S2R in relation to the granted tenements is consistent with the proposed exploration activities foreshadowed in Black Raven’s s 58 statement.
In its contentions WYAC expresses concern about S2R’s intentions “to aggressively explore the Jillewarra project” as stated at the end of Section 2 of Annexure 1. Black Raven contends (at paragraph 31(f)) that exploration plans on tenements other than the licences are not relevant to the inquiry.
That may generally be so, but Black Raven has provided and relies on S2R’s statements to support its contentions about how the licences will be explored and it is clear from the material that the licences form part of the Jillewarra project. As noted, the reported exploration of the Dorothy and Margueritta prospects is also close to E51/1956 and E51/1955, which according to the s 58 statements, are earmarked for greater year 1 expenditure than the other licences.
Predictive assessment for s 237(b): Is the grant of any of the licences likely to interfere with areas or sites of particular significance to the Wajarri Yamatji?
Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
There is a distinction between the significance of the native title party’s country generally and areas or sites of particular significance within the meaning of s 237(b).
In Cheinmora v Striker Resources, Carr J held (at pages 34-35):
I have reached the conclusion that the Tribunal's construction of s.237(b) is correct i.e. that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the Native Title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.
This distinction was also described by President Webb in Yindjibarndi v FMG at [130]:
To put it another way, a distinction must be drawn between areas and sites which are generally culturally significant, and specific culturally significant areas and sites which are of particular significance to Yindjibarndi People: see, for example, WF (Deceased) v Emergent Resources at [39].
In his affidavit (at paragraphs 2–7), Mr Walley, who is an initiated Wajarri Elder, outlines his authority to give evidence in this matter and his obligations and responsibilities to look after Country. Mr Walley begins to explain (at paragraph 4) why the area in which the licences are located is particularly significant compared to all Wajarri Yamatji traditional lands:
Although all of our traditional lands are of significance to us and we have obligations to old people who have passed to look after that land from harm, the land of the Applications is particularly significant to us because it is part of the Yulga or floodplain. In this area of the Applications there are creeks and water holes and the Hope River and the creeks and the water holes and the river are of special and particular significance to us as special Aboriginal dreaming sites with spiritual significance and for hunting and gathering food and camping with our families including the children who we are teaching always.
Mr Walley goes on to describe a number of areas and sites within each licence area which he says are particularly significant to Wajarri Yamatji as outlined below.
Both the State and Black Raven argue that much of Mr Walley’s evidence is too general, and insufficient for the purposes of s 237(b). I do agree that certain aspects of Mr Walley’s evidence are expressed in a general way, although WYAC has provided some additional clarification in its reply. I have considered the evidence with respect to each area or site of significance identified by Mr Walley in turn below.
Bimarra
Mr Walley deposes to the existence of bimarra in rivers, creeks and waterholes in all of the licences. By way of explanation, Mr Walley cites parts of the description given by Griffiths J in the Wajarri Yamatji Determination 2018. However, it is helpful to extract the entirety of the Court’s reasons at [27]–[29]:
27.The term bimarra refers both to the waterhole which is the abode of the spirit snake, gudgida, or to the snake itself, which is an avatar of the mythical Rainbow Serpent. The bimarra is the focus for Wajarri connection to country, spirituality of landscape, and knowledge and use of country. Most bimarra are year-round water holes and most, but not all, are found near the Murchison River and attendant large rivers such as the Sanford and Thomas.
28.Each family has its own known bimarra which it takes care of and these bimarra collectively constitute what could be called a modern-day family "estate" within Wajarri society. The bimarra themselves are still focal points for the spirits of the 'old people' or mundungu – deceased Wajarri whose animating spirits inhabit the landscape. They maintain an interest in the life of their living relatives and can affect the lives of those living persons for good or ill.
29.The gudgida, the snake who occupies the bimarra, may be openly aggressive to outsiders and in this respect the water-snake serves to police the area from unauthorised intrusion by outsiders. One practice observed by the Wajarri Yamatji is throwing a handful of sand into a bimarra as a way of letting the gudgida know that you belong there, that you are a person who belongs to that country, or that you are accompanying such a person to the vicinity of the bimarra.
Mr Walley also gives evidence (at paragraphs 12–13) regarding the practice of throwing sand into the bimarra as a sign of respect. I note that this practice and bimarra have been considered in previous Tribunal decisions. See for example Southern Yamatji v Coventry Enterprises at [60] and Badimia v Western Australia at [35].
Black Raven argues (at paragraph 31) that the “submission that every creek and waterhole located on the Applications is a site of particular significance is antithetical to the principle of a site being more than ordinarily significant” and should be given no weight.
I do not accept that proposition. While there is, as I have outlined, a distinction to be drawn between the significance of the native title party’s country generally and sites or areas of particular significance for s 237(b), there is nothing in s 237(b) that would preclude all features or sites of a particular type being of special or more than ordinary significance in accordance with tradition. In that respect, I agree with WYAC’s reply at paragraph 27. As always, concluding that an area or site is of particular significance will depend on the evidence.
Black Raven also contends (at paragraph 31) that the Court’s comments made in the context of the Wajarri Yamatji Determination 2018 are not relevant to this inquiry. WYAC takes exception to that contention in its reply.
In my view, the Court’s description of the bimarra as extracted above is relevant and helpful insofar as it describes the bimarra and its significance to Wajarri Yamatji. Mr Walley also accepts and repeats parts of the Court’s description in his affidavit. There is also ample authority and evidence to support WYAC’s submission that waterholes or waterways containing bimarra are of particular significance in accordance with Wajarri Yamatji tradition.
What is not clear is the extent to which that particular significance applies to all rivers creeks and waterholes. In its reply at 27 WYAC criticises the State for confining bimarra to waterholes. However, the description by Griffiths J that “most bimarra are year round waterholes”, clearly suggests there is a distinction to be drawn between bimarra and other water sources. It is noteworthy that the parts of the Court’s reasons quoted by Mr Walley omit the final sentence of [27] shown above, but there is no explanation of why and whether there is any basis to distinguish that aspect of the Court’s description (which is otherwise relied upon by WYAC). That is in contrast to paragraph 5 of his affidavit where Mr Walley specifically addresses why he removed the Court’s reference to Wajarri Yamatji as “custodians” preferring the reference to “traditional owners”.
The notion that bimarra are year round water or waterholes is also consistent with the evidence considered in Wajarri Yamatji v Western Australia at [30] and Southern Yamatji v Coventry Enterprises at [60] which identify bimarra in permanent waterholes.
For its part, the State recognises the spiritual and cultural significance of bimarra, but says that a contention that all rivers, creeks and waterholes within the proposed tenements are “particularly special” for the purposes of s 237(b) of the NTA does not assist the Tribunal. It says the contention is so broad and sweeping, that it does not enable the Tribunal to identify any particular area or sites for consideration under s 237(b).
There is merit in that contention. The statement that bimarra exist in all rivers, creeks and waterholes in the licence areas is very broad and not entirely consistent with the decisions noted above, including the Wajarri Yamatji Determination 2018 on which WYAC relies. WYAC’s contentions in reply (at paragraphs 27–32) seek to address this issue and cite information and authorities regarding the significance of waterways to Aboriginal people. However, those contentions are not particularly helpful and do not support a finding that all waterways in the licences, as shown on the mapping, are sites or areas of particular significance in accordance with tradition for the purposes of s 237(b). Aspects of those contentions are perhaps more consistent with the notion of general significance rather than particular significance (despite WYAC’s arguments about the meaning of “more than ordinary” at paragraph 30 of its reply). The earlier decisions on which WYAC relies do not suffer from the same generality.
Mr Walley’s evidence intimates there is a special character attaching to the licences due to their location in a Yulga or floodplain. However, that evidence is brief and it is not clear whether it is for that reason that bimarra are said to be located in all of the waterways in this area or not. There is also no explanation of the significance of the Yulga or floodplain in accordance with the bimarra tradition.
However, apart from the general assertion that bimarra exist in all rivers, creeks and waterholes in the area of the licences, Mr Walley does identify a number of specific bimarra locations as follows:
Hope River
The Hope River passes through E51/1955 and E51/1956. In his affidavit (at paragraph 8), Mr Walley refers to bimarra in the Hope River and says it feeds into the Murchison River. The Murchison River is mentioned in the Court’s reasons in the Wajarri Yamatji Determination 2018 which state at [27] that “most bimarra are year-round water holes and most, but not all, are found near the Murchison River and attendant large rivers such as the Sanford and Thomas”.
Gurli Pool
At paragraph 20, Mr Walley describes Gurli Pool in E51/1955 as near where the road crosses the river. He says “the bimarra is there in that pool”. Gurli Pool is also marked on the map at Annexure 1 to WYAC’s reply and described at paragraph 35.1 as “located at the bend in the Hope River”.
Hill Pool
Hill Pool, which is adjacent to or near the Hope River, is identified by Mr Walley (at paragraph 21) as a special site within E51/1956, although no explanation is given other than saying “it is a black hill and freshwater pool and the blackness of the hill makes it stand out as a site and landmark”. Additional information is provided in Annexure 2 of WYAC’s reply where Mr Walley describes the pool as having bimarra.
At paragraph 8 of his affidavit, Mr Walley also expresses concern about potential impacts on the Murchison River itself, but that river does not appear to be anywhere near to any of the licences.
On the information before me, I accept that Hope River, Gurli Pool and Hill Pool, all of which are identified and clearly marked on the mapping, are of particular significance to the Wajarri Yamatji due to their association with bimarra. The evidence with respect to each of these areas or sites is generally consistent with the Court’s description of bimarra as relied upon by WYAC. However, on the material provided, I am not satisfied that all rivers, creeks and waterholes in all of the licence areas are sites or areas of particular significance containing bimarra.
E51/1955
Likely burials along the Hope River and creeks
Mr Walley states that there are likely burials along the Hope River and other creeks in this licence area and, in fact, in the area of all of the licences. He explains that “burials were often done on sandy ground that is easy to dig just above the flooding levels so that the graves do not wash away”.
It is possible that there may be burials along the Hope River and other waterways as Mr Walley suggests. However, the evidence is speculative in that Mr Walley says such burials are likely. He does not depose to knowledge of specific burial sites in these parts of the licences. The mere possibility or likelihood of burials in these areas is not sufficient for me to find that such sites do exist such that they are sites of particular significance to the Wajarri Yamatji. In that respect the evidence here may be distinguished from that considered in Ross v Gamboola Resources upon which WYAC relies (reply at paragraph 34).
Gurli Pool
I have addressed the bimarra in Gurli Pool above. Mr Walley also refers to Gurli Pool as a camping area. The reply (at paragraph 35.1) includes additional information about community and social activities at the pool. The reply cites an internal report, which has not been provided, which says that when the pool is full it is a large lagoon that “remains an extremely important and well used camping area for our people. Generations upon generations of our people visit this location to continue teaching our children as well as to collect food (eg., fish, turtles, ducks, kangaroo, goanna) and medicines”.
Again, WYAC does not assert that interference with the meaning of s 237(a) is likely and this evidence is not sufficient to draw any conclusion regarding direct and substantial interference with community or social activities as is required for s 237(a).
Belele homestead
The majority of E51/1955 and E51/1956 falls within the Belele pastoral lease which Mr Walley says is held by the Wajarri Yamatji through a corporation. WYAC holds exclusive native title rights and interests to this area.
I mention Belele homestead for completeness only, as the State addresses Belele homestead as an area of particular significance. I do not understand WYAC to make that assertion, although Mr Walley does express concern (at paragraph 16) about potential impacts of loss of water for his family at Belele and he mentions Belele homestead in the context of Hill Pool.
E51/1956
Mingah Range
Mr Walley says that the Mingah Range, which is sacred due to the existence of a men’s law ground, extends into the western sector of this licence. He also says there is a burial site of an elder in the range.
The map at Annexure 3 of WYAC’s reply, shows an arrow labelled Mingah Range pointing to the north westerly corner of the licence. Mingah Range is named on the map, but outside the licence area. Mr Walley’s evidence is that the range extends into the licence.
Black Raven points out (at paragraph 38) that Mr Walley does not say that the men’s law ground or the burial site are located in the part of Mingah Range within the licence area. The State makes a similar point (at paragraphs 54–55), contending that it is unclear how much of Mingah Range extends into the licence area and whether the men’s law ground or the burial site fall within the licence.
In its reply (at paragraphs 42 and 64), WYAC accepts that both the men’s law ground and the burial site are located outside the licence area but says rather that it is the whole of the Mingah Range which is of particular significance because of the existence of those sites in the range.
Mr Walley does say that the Mingah Range is sacred because of the men’s law ground. However, while he mentions the burial site, Mr Walley does not suggest that the Range itself is sacred because of the burial site. Further there is no explanation of why either the men’s law ground nor the whole of the range is of particular significance in accordance with Wajarri Yamatji tradition
Overall the evidence is insufficient to conclude that the whole of the Mingah Range is a site or area of particular significance to the Wajarri Yamatji in accordance with s 237(b).
Hill Pool
I have already addressed the significance of Hill Pool as a bimarra site above. There is additional information from Mr Walley about the pool in Annexure 2 of WYAC’s reply which also refers to its significance for camping and intergenerational teaching and as a landmark for navigation. WYAC does not argue interference within the scope of s 237(a) and the relevance of this information for s 237(b) is not explained. In any event it does not affect the conclusion I have reached with respect to Hill Pool.
E51/1965
Boonu Well
Mr Walley’s evidence is that the Boonu Well area has scar trees and artefacts along the creek. He says these are “signs of the thousands of generations of our old people who lived here and are of particular importance to us as a record forever of their time that we have taken up now as the following thousands of generations”.
Black Raven accepts that Boonu Well is located within this licence but says the creeks along which the scar trees and artefacts are located are not identified. While the specific creek or creeks is not identified, Mr Walley is clear that the sites are in the Boonu Well area which is sufficient to locate them within the licence. The AHIS search maps also indicate there are creeks or waterways in the vicinity of Boonu Well.
The State acknowledges that Boonu Well is within the licence, noting that it is shown on the relevant AHIS search. However, the State says the “nature or quantity of the scar trees and artefacts” in the Boonu Well area is not further explained and it is not clear how large an area Boonu Well encompasses. The relevance of either of those matters is not explained.
The State goes on to say that even if I accept that Boonu Well is a place of particular significance based on the presence of scar trees, there is nothing to suggest they would be damaged by Black Raven’s exploration. It says, somewhat hopefully, that “[s]uch scar trees would presumably be identified by a heritage survey before any exploration works would commence”, although no basis is given for that presumption.
While Mr Walley’s evidence in relation to the scar trees and artefacts at Boonu Well is brief, he does explain their significance and no other party has disputed that the scar trees and artefacts as described by Mr Walley would be of particular significance to the native title holders. Rather, the concerns expressed by the State and Black Raven focus on the location or scale of the site. However, Boonu Well is clearly identified on the mapping and I accept this as a particularly significant area to Wajarri Yamatji.
Route that the elders took boys from Southern Wadjarri lands for initiation at Peak Hill
Mr Walley states (at paragraph 22) that E51/1965 is traversed as the route that elders took boys from Southern Wadjarri lands for initiation at Peak Hill. He says that “[o]n the way they would train the boys and stop off and camp all through here. This also makes it a place of particular significance to us”.
Neither the route nor the location of any camp in the licence area is identified in the evidence and there is also insufficient detail about why this route to Peak Hill is of significance in accordance with Wajarri Yamatji tradition.
On the information provided I am unable to identify the route or any associated camp in the licence area and am unable to conclude that it is a site or area of particular significance for s 237(b).
Hills in the western part of the tenement with Mudinggurangu in them
At paragraph 22, Mr Walley deposes that:
The western part of the tenement has hills that have Mudinggurangu in them. I have heard they are very strong and savage. Explorers should not camp close to those places for their own safety and out of respect to our culture.
Again, WYAC’s reply includes a map which indicates with arrows that there are two locations in the licence with hill country.
Both the State and Black Raven contend this evidence is insufficient for the purposes of s 237(b) and I agree. There is little to no explanation of the significance of this area in accordance with Wajarri Yamatji tradition and Mr Walley’s evidence as to what he has heard does not speak directly to the significance of this area.
E51/1966
Breakaway country
Mr Walley identifies breakaway country in the north-west of this licence as being of particular significance. He refers to artwork being ochre hand stencils on rock shelter walls in the breakaway country, in the north-west of the licence. He says this is “of very special significance as a direct link to our old people who were recording the Dreaming”.
Breakaway country has been mentioned in a number of Tribunal decisions. In Weld Range at [63] the Tribunal referred to the evidence of Mr Colin Hamlett who “described the breakaways as areas of eroded rock, where there are caves in which Aboriginal people put their gear and made hand stencils and carvings”.
Both the State and Black Raven question the lack of specificity in the evidence regarding the location and extent of the breakaway country. The State says there may be difficulty in determining the extent to which the breakaway country cited falls within the tenement. WYAC’s reply includes a map which points, in a general way, to the breakaway country being in the north-westerly corner of the licence.
Annexure 2 to the reply also includes some additional information from Mr Walley about this area. He says:
About the artwork and the objects under our Law I can’t tell you or any un-initiated person exactly where the artwork is or the mens objects (those are for initiations the objects). I know where they are and they are in that tenement boundary but I can’t tell you exactly where because that is our business not your business and if they are damaged or lost that is a desecration, as you say, and that is on me and my elders and it would bring great shame on us for having broken our traditional duty here. Me and my family could have harm come to us and the person who desecrates could have bad luck or die even. You can tell them they are in the breakaway country that comes into E51-1966.
(As per original)
While the evidence is limited I am satisfied, with the additional information provided, that there is a sufficient basis to accept that the artwork is located in breakaway country in E51/1966 and that it is of particular significance to the Wajarri Yamatji.
Interference
I have accepted there are bimarra in areas within E51/1955 and E51/1956. In his affidavit, Mr Walley expresses concern about the potential impact of exploration activities on the bimarra, including disturbance by low impact access on foot or in a vehicle (Walley affidavit at paragraphs 11 and 16). He also expresses concern about the impacts of any water licence to be obtained by Black Raven and groundwater impacts (Walley affidavit at paragraphs 8 and 17), however there is no evidence as to the likelihood of those impacts.
In relation to the artwork in the Breakaway country in E51/1966, Mr Walley’s concerns appear to relate to the potential for harm or damage from exploration activities (Walley affidavit at paragraph 23). Mr Walley does not specifically comment on interference with the sites at Boonu Well (E51/1965) but the nature of the sites means they may be impacted by exploration activities.
Black Raven does not make extensive submissions on the question of interference. It acknowledges a need to specifically address potential interference with sites of particular significance, citing Marputu v Gianni at [44] and [62]. However, it does not do so because it says that WYAC has not identified any sites or areas of particular significance within the scope of s 237(b) – which is not what I have found.
Black Raven says that in any event S2R has undertaken surveys on the adjacent tenements as stated in Annexure 2. It does not seek to draw any conclusion from that fact, but I take the implication to be that S2R would take the same approach for the licences. Black Raven also says that “neither the Grantee Party nor BRM” have been prosecuted for breaching the Heritage Act. I suspect that this is intended to be a reference to “Black Raven or S2R” but in either case, it does not particularly advance the argument.
S2R is not the applicant for these tenements, it is not a party to the inquiry, has not given any evidence and has not expressed any intention of how it proposes to explore on the licences. Black Raven’s arguments require a high degree of assumption and trust.
The only evidence provided is the ASX announcements which say little about heritage protection other than one line about S2R having conducted heritage surveys on other Jillewarra project tenements. There is no evidence regarding how S2R has conducted any heritage surveys on other Jillewarra project tenements or whether any Wajarri Yamatji were consulted. WYAC takes issue with S2R’s approach and says that S2R has not consulted with Mr Walley or the relevant heritage service provider.
It is worth noting that there is a degree of inconsistency in the way Black Raven approaches S2R’s role. On the one hand it clearly contends that it is likely that S2R will be the party funding and undertaking exploration activities on the licences and suggests that the various ASX announcements, particularly the project updates, reflect Black Raven’s own work program and relies on the reference to S2R undertaking heritage surveys. Yet, Black Raven contends that information is not relevant when WYAC relies on it to express concern about S2R’s intentions for the licences (Contentions at paragraph 31).
Apart from the s 58 statements and S2R’s announcements, there is no evidence about Black Raven’s intentions for the licences. There is certainly nothing in any of the evidence to suggest limited exploration activities are proposed. To the contrary, S2R’s announcements suggest it proposes to aggressively explore the entire Jillewarra project which, as noted, includes the pending licences.
The State also says little on the question of the risk of interference. It argues that protection would be afforded by the Aboriginal Heritage Act 1972 (WA) (AHA), although it does not particularly say how. I do not find the State’s arguments particularly compelling, by raising points which have been addressed by the Tribunal previously (see for example Bunuba v Oladiopo at [52]-[53]).
It is worth remembering that the application or otherwise of the expedited procedure under the NTA, concerns whether the negotiation parties are required to first negotiate in good faith about the relevant act before it is done. In the context of s 237(b) the question is not whether sites under the AHA will or will not be damaged or destroyed etc., contrary to s 17 of the AHA or without s 18 approval.
Having regard to the evidence provided including the nature of the sites or areas of particular significance, I conclude that the grant of each licence is likely to interfere with the areas or sites I have found to be of particular significance to Wajarri Yamatji.
Determination
I determine that the grant of each of E51/1955, E51/1956, E51/1965 and E51/1966 to Black Raven Mining Pty Ltd is not an act attracting the expedited procedure under the NTA.
Ms Nerida Cooley
Member
22 December 2021
2
13
0