WF (deceased) and others on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd - [2012] NNTTA 115

NATIONAL NATIVE TITLE TRIBUNAL

WF (deceased) and others on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd, [2012] NNTTA 115 (6 November, 2012)

Application Nos: WO11/977, WO11/978 & WO11/979

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

WF (deceased) & Others on behalf of the Wiluna Native Title Claimants (WC99/24) (Wiluna native title party)

- and -

Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation (WC98/68) (Birriliburu native title party)

- and -

The State of Western Australia (Government party)

- and -

Marford Group Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

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

Tribunal:                  Helen Shurven, Member
Place:   Perth
Date:   6 November 2012

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – expedited procedure attracted – expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Cases:
Andy Campbell and Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48

Banjo Wurrunmurra and others (Bunuba)/Western Australia/Francis Robert Salmon and another [2012] NNTTA 27
Billy Patch and others (Birriliburu People v State of Western Australia [2008] FCA 944
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Daisy Lungunan and Ors n behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24
Jango and Others v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Neowarra v Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rubibi Community v Western Australia [2005] FCA 1025
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133
WF (Deceased) & Ors (Wiluna)/Emergent Resources Ltd [2012] NNTTA 17
Wilma Freddie and Ors/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170

Representatives of the
native title party Ms Irene Assumpter Akumu, Central Desert Native Title Services
Representatives of the Mr Joshua Berson, State Solicitor’s Office

Government party Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the
grantee party Mr Denis Hawtin, as agent for Marford Group Pty Ltd

REASONS FOR DETERMINATION

On 6 April 2011, the Government party issued notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’ or ‘NTA’) of its intention to grant exploration licences E69/2677 and E69/2884 (‘the proposed licences’) to Marford Group Pty Ltd (‘the grantee party’) and included in each notice a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
Details of the proposed licences are as follows:
·Proposed licence E69/2677 comprises an area of 557.29 square kilometres located 161 kilometres north-east of Wiluna in the Shire of Wiluna
o It overlaps the registered Wiluna native title claim (WAD 6164/98) by 0.26 per cent.
o It also overlaps the Birriliburu determination area (WAD 6284/98) by 99.74 per cent. Native title rights and interests to that determined area are held on trust by the Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) who hold rights for possession, occupation, use and enjoyment to the exclusion of all others (as per the Register of Native Title Claims).
·Proposed licence E69/2884 comprises an area of 158.31 square kilometres located 183 kilometres north of Wiluna in the Shire of Wiluna
o It overlaps the registered Wiluna native title claim by 100 per cent.
o It also overlaps the unregistered Birriliburu #3 native title claim (WAD50/2012), but as this claim is unregistered, it does not form part of this determination.

No other native title claims or determinations overlap the proposed licence areas.

On 28 July 2011, WF (deceased) and Others on behalf of the Wiluna Native Title Claimants (WAD 6164/98) (‘the Wiluna native title party’) lodged, with the Tribunal, expedited procedure objection applications for proposed licences E69/2677 and E69/2884.
On 28 July 2011, Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) on behalf of the Birriliburu Native Title Holders (WAD 6284/98) (‘the Birriliburu native title party’) lodged, with the Tribunal, expedited procedure objection applications for proposed licences E69/2676 and E69/2677. The objection application for E69/2676 is dealt with in a separate determination.
The objection applications outlined the likely impact of the grant of the exploration licences on community or social activities of the native title parties, including:
·Allowing the grantee party to ‘access and conduct exploration activity’ will impact on the objector’s ‘ability to conduct community and social activities over that area’.
·The objectors ‘enjoy hunting animals in the area’. ‘Any mining activity would interfere with this practice’ [emphasis added].
·The objectors gather seeds and plants for the purposes of food and medicines in the area. Mining activity permitted by the grant would ‘disturb vegetation and thereby cause direct interference to these practices’ [emphasis added].
·The objectors use the tenement area to ‘gather wood for use in the construction of artefacts for either personal use or exchange’. Mining activities ‘would disturb vegetation and thereby cause direct interference to this practice’ [emphasis added].
·Exploration activities will directly interfere with the Native Title Party’s ‘capacity to travel, hunt, camp, and access food, water and other resources by dislocating them from these resources’.
·Religious and cultural activities would be directly impacted upon ’by denying those persons who have responsibilities to care for the land the capacity to properly exercise their obligations’.
The objection applications outlined the likely impact of the grant of the exploration licences on sites or areas of particular significance including:
·Preliminary research ‘shows that Tjukurrpa (Dreaming tracks) pass through areas in the vicinity of the Tenement Area’. These areas are significant to the native title party.
·Two sites (Bridleface Station – Site ID 2124; and Weld Spring – Site ID 2123).
·The grantee party may inadvertently interfere with sites or areas of significance ‘by not knowing of their existence’.
·Permitted land disturbing activities ‘may result in the destruction of sites and areas, with consequent damage to the Objectors’ spiritual understanding and comprehensions’.
·Any damage or disturbance to sites and areas of the Tjukurrpa ‘would have repercussions for both the Objectors and the integrity of the wider Aboriginal society of which they form part’, as the Objectors are part of the larger social entity known as the ‘Western Desert Cultural Bloc’.
The objection applications outlined the likely impact of the grant of the exploration licences on land and waters claimed, but these objections were subsequently withdrawn.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 notification date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent. Parties had a number of status conferences between September 2011 and March 2012, where an agreement was discussed, and where the grantee party representative reported waiting for some months for instructions from the grantee party. However, parties were unable to reach agreement and on 11 April 2012, parties agreed to proceed to inquiry and compliance dates were set for parties to submit documents and evidence.
At this stage, the grantee party advised they would be relying on the contentions of the State, but subsequently did lodge contentions on 10 July 2012. I do note that the grantee party provided two sets of contentions – one related to WO11/979 (tenement E69/2884) and one to WO11/977 (tenement E69/2677) but the latter only appeared to relate to the Birriliburu overlap. As such, there did not appear to be a grantee party contention for WO11/978 (E69/2677 relating to the small Wiluna overlap).
The Government party lodged its statement of contentions on 3 July 2012, with supporting documentation for both proposed licences having been lodged by the Department of Mines and Petroleum (DMP) on 29 May 2012.
The native title party lodged its evidence and statement of contentions for both proposed licences on 5 June 2012, including:
·The sworn affidavits of:
o Mr Frankie Wongawol, dated 4 April 2011 (in respect of E69/2884);
o Mr Frankie Wongawol, dated 5 April 2011 (in respect of E69/2677);
o Ms Lena Long, dated 5 April 2012 (in respect of E69/2884); and
o Mr Victor Ashwin, dated 5 April 2012 (in respect of E69/2677).

The deponents state they are members of the Wiluna native title claim and Birriliburu native title holders, and as such, provide evidence and have cultural authority to speak for both native title areas, and on behalf of the native title parties. I accept this.

·Audio visual evidence, undated, on a Compact Disc (CD) marked ‘NTP Evidence re: WO11/979 (E69/2884)’. The CD, when played, indicates, in writing on a title page, that it relates to:
Palatji – Well 9 - Weld Spring
This site is registered as WA Museum Heritage Site File
Weld Springs of Wiluna #36469 vested 1980,
Aboriginal/historical site ‘A’ class reserve – Land Act 1933
reserve 999.8247 ha. National Estate 362/77
also Aboriginal Heritage Act 1972

The CD has a person, identified as Mr Timmy Patterson, and some non-identified people, giving a narrative, sometimes in English and sometimes in language which is interpreted in English by a person off camera, about an interaction between Mr John Forrest and others, and 40-60 Martu people, which the narrators report ended in gunfire against the Aboriginal people, and the deaths of some of those people. It is stated that bodies were burnt in the area. Text within the CD refers to a plaque commemorating the area (referring to the date ‘1874’, although it is not clear if this is when the plaque was built, or when the deaths occurred). Text within the CD also refers to ‘men, women and children were killed here, and their bodies were dragged to a mound and burnt’ and that the area is a ‘massacre site’. Again, it is not clear exactly where the site is apart from appearing to relate to the ‘Well 9 - Weld Spring’. The CD runs for approximately 4 minutes. Tribunal mapping indicates that there is a site called Well 9 (Weld Spring) (Site ID 2126) which appears to be located just outside the north eastern boundary point of E69/2844, and I assume this is the same site as referred to in the CD. It also appears this site rests on a reserve or park, and is not within either the Wiluna claim or the Birriliburu determined area.

The Native Title Party requested that:
·Confidentiality directions made by Member O’Dea in the previously determined matter of Andy Campbell and Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48 (‘Andy Campbell’) be varied over the affidavit of Dr Kruse which had been submitted in that matter, so Dr Kruse’s affidavit could be applied in the present determination over E69/2677 (in both the Wiluna and Birriliburu overlaps)
· The Tribunal consider adopting paragraph 13 of Mr Frankie Wongawol’s affidavit as provided to the Tribunal in Wilma Freddie and Ors/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170 (‘Kingx’). That paragraph stated:
Once because I didn’t look after country properly, I got speared, even though the site that I didn’t look after, I didn’t know people were taking things and going where they shouldn’t. I got speared anyway.
· The native title party have an opportunity to reply to the contentions of other parties.
Accordingly, a listing hearing was scheduled for 26 July 2012. At that hearing, parties did not take issue with the Tribunal adopting paragraph 13 of Mr Wongawol’s affidavit from Kingx, nor did they take issue with a request to Member O’Dea to vary the confidentiality orders over Dr Kruse’s evidence. The Government party did request the opportunity to amend or lodge further submissions in relation to this matter, and the grantee party wished to contend that audio visual evidence submitted by the Native Title Party on CD was not relevant. The native title party requested that grantee party contentions on this point be submitted in writing, but none on this point were received.
On 27 July 2012, Member O’Dea did amend the directions for the previous determination so that the Tribunal could use Dr Kruse’s affidavit in relation to tenement E69/2677 in the current determination. The amended directions were sent to all parties together with the affidavit of Dr Kruse (dated 20 August 2011). I note that Andy Campbell dealt with tenement E69/2576 (which is 83.03 per cent within the determined area of the Birriliburu registered claim (WAD 6284/98)), and E69/2606 (which is 73.02 per cent within the determined area of the Birriliburu registered claim). Both of those proposed licences are also partly overlapped by the Wiluna registered claim (WAD 6164/98). I note that E69/2606 is approx 2.5 kilometres south west of the proposed licences in this matter, and E69/2576 is approx 2.5 kilometres south east of the proposed licences in this matter.
On 28 June 2012, I was appointed by Tribunal Deputy President John Sosso, as the Member for the purpose of conducting the inquiry. On 30 July 2012, as a result of the requests made by parties at the listing hearing on 26 July 2012 (as outlined at [13] above), the Tribunal directed that: the grantee party provide any contentions in reply to the native title party’s audio visual evidence on or before 3 August 2012; the native title party provide any contentions in reply on or before 10 August 2012; and the Government party provide any amended or further contentions on the affidavit of Dr Kruse on or before 10 August 2012. The grantee party provided no further contentions than their 10 July documents, and the other parties complied with directions.

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

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

In Walley and Others v Western Australia and Another (2002) 169 FLR 437; (‘Walley’), Hon C J Sumner, Deputy President, considered the applicable legal principles (at [439]-[449]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·The history and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).

Evidence in Relation to the Proposed Acts

Some of the evidence for each of the proposed licences is similar. For example, DMP materials, and a Tribunal geospatial map prepared on 24 August 2012, show no Aboriginal communities within either of the proposed licences, and endorsements to be imposed on each are as follows:
1The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Much of the remainder of the evidence is different for each of the proposed licences, and accordingly I outline that evidence and conclusions separately below for E69/2677 and E69/2844.

E69/2677 (0.26 per cent overlap with Wiluna native title claim and 99.74 per cent overlap with Birriliburu determined area)

Government party documentation

The Government party provided contentions on 3 July 2012, and through DMP have provided the following documents: a statement of contentions; tengraph plans with topographical detail, tenement boundaries, historical land tenure information; reports and plans from the Department of Indigenous Affairs (‘DIA’) Register; copies of the tenement applications; copies of the proposed endorsements and conditions of grant; instrument of licence and the first schedule listing land included and excluded from grant; and tengraph quick appraisals.
Government party documentation establishes that the underlying land tenure of the proposed licence and any relevant services affected includes:

Three parcels of vacant crown land at a total of 100 per cent
GWA/15, East Murchison at 100 per cent (DMP advises this is a groundwater management area within the Canning Stock Route reserve, managed by the Western Australian Department of Water)
A historical lease (395/415) at 0.7 per cent
Twelve dead exploration tenements granted between 1959 and 1986, overlapping the proposed licence by 0.2 per cent to 100 per cent, and now surrendered or cancelled; and twelve dead exploration tenements granted between 1993 and 2006, overlapping the proposed licence by 0.1 per cent to 28.8 per cent and now variously forfeited or surrendered
Three mining tenements marked in 1997 and never granted (withdrawn in 1999)
SSM-Stanley Y5 and SSM-Stanley Y5T (Standard Survey Marks for Geodetic Survey Stations)
CPL/6 Earheedy P/l3114/445 at 0.3 per cent
Several minor roads
Two claypans
30 minor watercourses (non perennial)

DIA documentation provided by the Government party reveals no registered sites or other heritage places recorded within E69/2677.
A draft tenement endorsement and conditions extract for the proposed licence is included in the Government party’s documentation. This indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Condition four prohibits the use of drilling rigs, among other things, without the prior approval of DMP’s Environmental Officer (as also outlined in the Government party contentions (at 17(f)). It is not clear whether this requires the Environmental Officer to liaise or discuss this with the native title parties prior to issuing approval, and I note the grantee party has evidenced an intention to possibly do ‘RAB drilling’ [which I understand may refer to ‘Rotary Air Blast Drilling’] on the proposed licence, which is discussed in more detail later in this determination.
Further conditions to be imposed on this proposed licence are as follows:
No interference with Geodetic Survey Stations Stanley 5 and Stanley 5T and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

In respect to the area designated as CPL Earheedy in TENGRAPH the following conditions apply:

Prior to any ground-disturbing activity, as defined by the Director, Environment, DMP the licensee preparing a detailed program for each phase of proposed exploration for approval of the Director, Environment, DMP. The program to include:
·     maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
·     the purpose, specifications and life of all proposed disturbances;
·     proposals which may disturb any declared rare or geographically restricted flora and fauna; and
·     techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances.
The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the license to the satisfaction of the Director, Environmental, DMP. Such rehabilitation as is appropriate and may include:
·     stockpiling and return of topsoil;
·     backfilling all holes, trenches and costeans;
·     ripping;
·     contouring to the original landform;
·     revegetation with seed; and
·     capping and backfilling of all drill holes.
Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.

I do note condition 6 appears to relate to Earheedy, which covers only 0.3 per cent of the proposed licence.
In addition, the Government party’s contentions (at 18) indicate that a further condition will be placed on the grant of the proposed licence requiring the licensee, if requested in writing by the Wiluna or Birriliburu native title party, to ‘execute in favour of the Birriliburu the Central Desert Regional Standard Heritage Agreement’ (‘RSHA’). The Government party contentions (at 21) outline what RSHA’s ‘in general provide’ including: notifying the native title party about proposed ‘on-ground works (whether ground disturbing or not)’; consulting with the native title party ‘about surveys of the land in relation to ground-disturbing works before carrying out those works’; carrying out surveys ‘with the participation of the native title party prior to commencing ground-disturbing works in some circumstances’; and consulting the native title party in relation to s 18 AHA applications.
The grantee party must notify the native title party prior to the commencement of ground-disturbing activity where the land concerned has not been the subject of a survey under the RSHA. This must include information about ‘the nature, scope, objectives and estimated time’ of that activity as well as all access routes, types of equipment to be used, personnel to be used and ‘any requirement to restrict access by the Claimants to the area’ and, if so, the nature and extent of that restriction. Parties will consult with each other ‘to determine whether a Survey is required’. There are detailed clauses as to how and when the survey should be conducted and the process to be followed should parties be unable to reach agreement about the survey.
The Government party contentions for E69/2677 outline rights which will be conferred by the grant of the proposed tenement under s 66 of the Mining Act, as well as addressing the native title party affidavits and contentions for each sub section of s 237 of the Act.
The Government party accept that the native title party evidence, in the form of the affidavits of Mr Frankie Wongawol and Mr Victor Ashwin, are ‘helpful in establishing the activities of the native title holders’ and ‘their effect is’: there is ‘an important law ground or meeting place, Imbin (or Yimbin) Rockhole that falls just outside the proposed tenement’; ‘the men continue to camp near Imbin Rockhole about once a month’; hunting used to occur and still occurs about once a month, near Imbin Rockhole’; and ‘there is a hill just north of Imbin Rockhole within the proposed tenement area that contains a water source connected to the Wati Kutjara [Tjukkupura track] that is considered ngulu (secret, dangerous)’.

s 237(a)

The Government party contentions outline the matter of Silver and Ors v Northern Territory of Australia and Ors (2002) 169 FLR 1, which establishes that spiritual activities fall into consideration of s 237(a) when they are ‘rooted in physical activities’ (at [36]). There must be evidence of carrying on of activities and they must relate to claimed native title rights and interests, and are necessarily carried on by more than just a native title party individual (at [39]-[41]). This is consistent with the legal principles relating to s 237(a) in [19] of this determination.
The Government party contentions accept that the native title party conduct the community and social activities of visiting the tenement once a month including to hunt, and to gather emu eggs. They also accept that the native title party, when accessing the area of the tenement, are required to travel in a particular manner, that is, following the path of the Wati Kutjara jukurrpa (at 44). However, the Government party states ‘there is not likely to be direct interference with those activities’ because:
·The area has been subject to previous exploration and possibly mining activity
·There are no Aboriginal communities within the proposed tenement
·Hunting and mineral exploration can co-exist
·Mineral exploration would not cause substantial interference with native title party access to the area
·The activities of the grantee party ‘will be relatively minor in respect of ground disturbance’ (at 45(e)), and
·The Government party will place endorsements and conditions on the proposed licence

s 237(b)

The Government party stated there is ‘currently no evidence before the Tribunal that the Grantee Party is willing to enter a RSHA’ (at 54). However, subsequent to these Government party contentions, the grantee party lodged contentions which indicated they are willing to sign an RSHA, and I note this is particularly relevant in the predictive assessment relating to the likelihood of interference under this section of the Act.
The Government party states that ‘both the existence of the AHA regime and the availability to the Native Title Party of the RSHA give rise to a presumption that sites will be protected’ (at 55).
The Government party also submits:
·‘Weight must be given to the evidence provided in relation to the proposed activities of each particular grantee party, including their intention to adhere to the regulatory framework and conditions imposed by the Government party’ (at 56)
·There is no suggestion the grantee party in this matter has ever, or would ever, breach the regulatory regime (at 57-58)
·In relation to Imbin Rockhole, the Government party accepts it is a site of particular significance (at 59)
·In relation to the hill north of the Rockhole, the Government party ‘accepts that it may satisfy’ the definition of a site of particular significance but does not accept that all ngulu sites are so (at 60-61)
·The Tribunal should follow the approach taken in WF (Deceased) & Ors (Wiluna)/Emergent Resources Ltd [2012] NNTTA 17 (at [34]-[46], (‘Emergent’) in relation to the significance of jukurrpa (at 62)

And finally the Government party contends (at 64) that even if it is accepted there are sites of particular significance on the proposed tenement, interference with them is not likely because of reasons including: the grantee party is aware of the existence of Imbin Rockhole and the hill nearby, and the AHA protects sites not on the Register.

Initial native title party documentation

Contentions

Native title party contentions submitted on 5 June 2012 outlined statements of law and argument relating to s 237(a) and (b), including that the regulatory regime is not robust, and citing a number of reports and information in support (at 2.15-2.23). They then go on to outline specific information regarding this proposed licence and the native title parties.
The native title parties’ submission in relation to s 237 (a) include:
·Hunting occurs approximately once per month (particularly for emu eggs)
·Members of the native title party are required to leave or travel through the area in a particular way ‘that is, following the path of the Wati Kutjara jukurrpa’ (at 3.11, 5.1(b))

Community and social activities are conducted within the tenement (although I note information about what those activities are is not provided in any detail in the contentions)

The native title parties’ submission in relation to s 237 (b) include:
·The RSHA is not ‘an adequate means of dealing with issues under s 237 of the NTA’ (for example, at 4.18-4.23, 4.29, 5.2(c))
·The proposed licence:
o contains Jukurrpa (or Tjukurrpa) tracks ‘made by mythic beings of great importance to the native title holders’ and conditions may not be sufficient to avoid interference with them (at 4.25(a), 4.27-4.28, 5.2(a))
o is traversed by the Wati Kutjara (Two [Goanna] Men) jukurr (at 4.25(b), 5.2(a) and (b))
o has significant sites and areas relating to Jukurrpa tracks, including Imbin Rockhole (Yimbin), the hill to the north of Imbin Rockhole and water associated with that hill (at 4.24(c), 4.26)
o has dangerous or secret (ngulu) sites which are restricted and ‘information about these sites and places is strictly managed and controlled in accordance with traditional law and custom’ (at 4.25(d)).
·‘Meaningful consultation and negotiation between the Native Title Party and the Grantee Party is necessary to ensure that sites or areas of particular significance are not likely to be interfered with’ (at 4.30)

Mr Wongawol Affidavit

Mr Frankie Wongawol provided an affidavit relating to this proposed licence, dated 5 April 2012. I accept he has the necessary authority to speak for the area on behalf of the native title parties. Mr Wongawol states he lives at Bondini Community, which is approximately 7 kilometres south east of Wiluna and approximately 200 kilometres south east of the proposed licence. The affidavit is in the following terms:

I, Frankie Wongawol, pensioner, of Bondini Community, in the State of Western Australia, sincerely affirm as follows:

1.   I am a traditional owner for the area of tenement application E69/2677 (“the Tenement”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I am a senior wati (initiated man) and a Putijarra Martu man. My Martu name Miparrl. I have cultural authority to speak for the area of the Tenement.
2.   I make this affidavit in support of the Statement of Contentions of the Objectors (collectively, the “Native Title Party”) in an inquiry to the objections to the expedited procedure WO11/977 and WO 11/978.
3.   I have been shown an A3 map of the Tenement by a lawyer from Central Desert Native Title Services, a copy of which is attached and marked “FW1”.
4.   Everything I have said in this affidavit are things that I know to be true.
5.   As an elder, I have the important job of looking after and protecting country, Martu law says that I have to look after the special places and the dreaming stories (jukurrpa). When I talk about ‘jukurrpa’, I mean all the places, special sites and tracks that were left by the dreaming. The jukurrpa is what created country; it is still alive today and we have to respect it.
6.   Tenement E69/2677 is north of an area that whitefellas call ‘Sydney Heads’[1]. Yimbin Rockhole is in the south of the Tenement, right near the bottom. Right above Yimbin is an important hill. This hill is marked on the map – it has the number 611[2] on it. Coming out of this hill are streams, wash.
[1] I note according to Tribunal mapping there is an area called ‘Sydney Heads pass’ approximately 8-10 kilometres south of the tenement’s southern boundary and is a registered DIA site (see for example site 2168 and 2128)
[2] I note that it appears the ‘611’ notation is related to some map markers, rather than any specific DIA designation of that hill area although the grantee party does, in their contentions, refer to ‘Hill 611’.When comparing the map annexed to this affidavit, with the Tribunal mapping dated 24 August 2012, it appears the hill is directly to the north of Imbin rockhole, which is itself is approximately in the middle of the southern boundary of this tenement, adjacent to the overlap between the Wiluna claim area and the tenement, and most likely within or very near to the Birriliburu determination which also overlaps the proposed licence.
7.   That Yimbin rockhole, that hill, they were made by Wati Kutjara jukurrpa [Two Goanna Men]. Then he went though that country, he made them, left them there. When he travels through that country, he stops at Yimbin and drinks, and then he keeps going kakarra.
8.   That Wati Kutjara, he comes though Mt Oolangathoo, and he’s moving kubbin kubbin [zig-zagging] though that country[3]. He’s not travelling in a straight line, because he’s hunting all through there. Those goanna men, one white, one black. Wati Kutjara, he a men’s story. People sing that one for men’s business, law.
9.   The Wati Kutjara, when he travels though the country. He gets a rock from one place, and leaves it another place. He left red ochre at Sydney Heads. It’s connected to Yimbin rock hole, that ochre.
10.    There’s rock art at Yimbin, at the rock hole. Carvings in the rock. They show you where the water is. When the jukurrpa go through there, they following the water. Martu mob, we travel though that country same way. We got to follow the water, always. We travel following the jukurrpa thought the country. I show the young fellas and the women the right way to travel through there.
11.    That Yimbin rockhole, ladies can’t go all round there. One of the Roberts girls, she went there and went too far, went somewhere she shouldn’t have. She got sick, because she not allowed there. Last year, on trip to Matuwa. No girls are allowed to go there. Little boys can go there, even if they been though law, but no girls.
12.    That hill behind Yimbin, that Wati Kutjara left, he ngulu [secret, dangerous] too. There’s water falling down from that hill, that hill is Wati Kutjara, he makes the water come down.
13.    The old people, they used that water in the dreamtime, before the whitefellas come with their windmills. People camping there, all the time, old days. They used Yimbin as a law ground. Mr Anderson went through there, and the brother of Marakuju [Norman Thompson], boys went though the law there when they were young. We could still use that law ground if we wanted to. We wouldn’t if people were exploring around there.
14.    That was the first reserve, there at Sydney Heads. People coming in from the desert, they came in there.
15.    Martu mob, we go out to Yimbin all the time. I reckon Martu mob from round Wiluna go out there about once a month. People go out hunting. We go to Sydney Heads, about 8 or 10 kilometres south of Yimbin. Then us men we go up to Yimbin, but not the ladies. No men, just ladies.
16.    I’m worried about the jukurrpa getting messed up. We really don’t want explorers going near Yimbin, or up into that hill or that water coming down. That place is left by jukurrpa, Wati Kutjara, it’s special. If an explorer went out there, a lady, we’d be upset. We maybe get speared. We don’t want ladies climbing around, taking samples, hurting that place. That area around the hill, that’s a no go.
17.   If explorers muck up the jukurrpa, or if they get hurt by the spirits, I will get the blame. Even if it isn’t my fault, I get in trouble, punished. I tell the Tribunal about the time that I got in trouble when this happened before. It’s serious. I got speared one time because someone else mucked up a special place, stealing. I got four spears each side, eight spears in my leg.
[3] I note that Mt Ooloongathoo is to the west of the tenement, but near the tenements south boundary (approximately 5 kilometres away from the boundary), and approximately 20 kilometres west of Imbin rockhole.

Mr Wongawol speaks of the importance of the Jukurrpa, and also identifies Yimbin rockhole as being ‘in the south of the Tenement’ and above it ‘is an important hill’ from which comes ‘streams, wash’ (at 5-9). The Yimbin rockhole is not an area for women (8, 11, 16).
He states that ‘Tenement E69/2677 is north of an area that whitefellas call ‘Sydney Heads’ (at 6) and that ‘The Wati Kutjara [Goanna Men], when he travels though the country. He gets a rock from one place, and leaves it another place. He left red ochre at Sydney Heads. It’s connected to Yimbin rock hole, that ochre’ (at 9). He also states ‘We go to Sydney Heads, about 8 or 10 kilometres south of Yimbin. Then us men we go up to Yimbin, but not the ladies. No men, just ladies’ (at 15).
He states that his mob ‘go out to Yimbin all the time’ (at 15), and ‘about once a month (at 15) to hunt. He states that he is worried about Yimbin, the hill near Yimbin and the water ‘coming down’ (at 16). He also outlines his responsibilities to look after the jukurrpa (at 16-17) and that he was speared eight times previously because ‘someone else mucked up a special place’ which is consistent with paragraph 13 of his affidavit in the Kingx matter which has been adopted in this matter (see paragraph [12] of this determination).

Mr Ashwin Affidavit

Mr Victor Ashwin’s affidavit, dated 5 April 2012, outlines that he lives at Windidda Station[4]. I accept he has the necessary authority to speak for the area on behalf of the native title parties. The affidavit is in the following terms:
[4] I note the address for this Station is Gunbarrel Highway, Wiluna.

I, Victor Ashwin, liaison officer, of Windidda Station, in the State of Western Australia, sincerely affirm as follows:

1.   I am a traditional owner for the area of tenement application E69/2677 (“the Tenement”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I am also a director of the Prescribed Body Corporate for the Birriliburu native title holders. I have cultural authority to speak for the area of the Tenement.
2.   I make this affidavit in support of the Statement of Contentions of the Objectors (collectively, “the Native Title Party”) in an inquiry to the objections to the expedited procedure WO11/977 and WO11/978.
3.   I have been shown an A3 map of the Tenement by a lawyer from Central Desert Native Title Services, and A4 copy of which is attached and marked “VA1”.
4.   Everything I have said in this affidavit are things I know to be true.
5.   Martu law tells me that I have to look after places left by the jukurpa. This is our law; I have to follow it. Jukurrpa created the country, and it is still alive today. It is the past and the present. As a Martu person, I have to respect it, protect it. We still sing the songs today.
6.   Tenement E69/2677 is north of an area that people call ‘Sydney Heads’. It’s marked on that map. Yimbin Rockhole is in the south of the Tenement, right near the bottom. Right above Yimbin is a hill, which is marked on the map – it has the number 611 on it. Coming out of this hill are streams. You can see them on the map too.
7.   The old people taught me that Yimbin Rockhole was made by Wati Kutjara [Two Goanna Men]. He set down in this country, and he made the rockhole, and he made the hill behind it. He travels across that part of the country, going all over the place, he’s hunting. He goes through Yampi and Mt Oolangathoo and comes up on to Yimbin. Then he keeps going kakarra [east].
8.   Wati Kutjara, that jukurrpa is important for men. I can’t say too much about it in this paper; Wati Kutjara in our country is men’s business. He’s got to do with the law, too. When he travels around in our country, he’s picking up rocks, leaving them other places. He left a rock at Sydney Heads, there’s red ochre there. That ochre is connected to Yimbin.
9.   I know that when Wati Kutjara is travelling through that country, he’s following the kari [water]. When I travel through there, I know I got to go the same way. I travel in the path of the jukurrpa. Not following the road, following the jukurrpa. There’s rock art at Yimbin, carvings; they tell you where the water is.
10.    Ladies can’t go to Yimbin rockhole, it’s ngulu [secret, dangerous]. They got to be real careful in that country. No girls allowed there. Young boys can, don’t have to go through law, but definitely no ladies.
11.    That hill behind Yimbin, that’s ngulu [secret, dangerous] too, because of the jukurrpa that made it. There is water coming down from there, wash. It comes out of the hill, it’s connected to that place.
12.    Around Yimbin is where our old people used to hunt and camp. Men used to go through the law there. It is still a law ground, we could use it in the future if we wanted to. That was the first reserve there. At Sydney Heads. When our people first came in from the desert they went there.
13.    Martu people from Wiluna go to Yimbin lots. Maybe once a month, maybe a bit more. It is really important for hunting around there. We normally stay at Sydney Heads. About 8 or maybe 10 kilometres from Yimbin, and then men they go up there to Yimbin. We’ve got a shed and water tank at Sydney Heads because people go there all the time. There’s good hunting for marlu [kangaroo], karlaya [emu], goanna, porcupine and turkey in that country, including in the Tenement. It is coming up to emu egg season now; around Yimbin is really good country to look for eggs. When we’re camping at Sydney Heads, we go up to Yimbin visiting, checking on it, all the time. I went out to Sydney Heads and Yimbin just last week, I got a goanna there.
14.   It would be really bad for us if explorers could go out to Yimbin. We don’t want people just wandering around near that place. It was left by Wati Kutjara and it could get hurt. Ladies should not be allowed out there. The traditional owners for that country, they have the job of looking after it. That is our law. If the explorers go in there, see something they shouldn’t, or muck something up, the traditional owners will get in trouble. That songline doesn’t just belong to Martu. It goes out of our country into other people’s country into Ngaanyatjarra country, and keep going east. We have to look after our part for everyone else. It belongs to everybody.

Mr Ashwin states that he has ‘to look after places left by the jukurpa’ and the traditional owners have the job of looking after that country (at 5 and 14). He states that this proposed licence is ‘north of an area that people call ‘Sydney Heads’ and ‘Yimbin Rockhole is in the south of the Tenement, right near the bottom’ and ‘Right above Yimbin is a hill’ (at 6). Like Mr Wongawol, he speaks of the water coming out of the hill and associations with ochre (at 6, 9, 11).
Mr Ashwin also speaks of the Yimbin Rockhole being made by the Wati Kutjara [Two Goanna men] and the significance of that, and its importance particularly for men, including ochre at Sydney Heads and rock art at Yimbin which ‘tell you where the water is’ (at 7-9). He confirms Mr Wongawol’s statements that it is not a place for women or girls (at 10), and responsibilities lay where ‘we have to look after our part for everyone else. It belongs to everybody’ (at 14).
He states that the old people ‘used to hunt and camp’ around Yimbin and it is still a law ground (at 12). ‘Martu people from Wiluna go out to Yimbin...maybe once a month, maybe a bit more’ for hunting kangaroo, emu, goanna, porcupine and turkey, and ‘normally stay at Sydney Heads, about 8 or maybe 10 kilometres from Yimbin, and then men they go up there to Yimbin’ (at 13).

Dr Kruse Affidavit

As outlined earlier in this determination, the native title party requested that an affidavit dated 20 August 2011, provided by Dr William Kruse, anthropologist be allowed to be used for the purposes of this present enquiry for E69/2677 in respect of both native title party overlaps. This affidavit was originally provided to Member O’Dea in the Andy Campbell matter (relating to tenements E69/2606 and E69/2576).
The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claims groups evidence, is probative (see Neowarra v State of Western Australia [2003] FCA 1402 at [388]; Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 at [263]; and Jango v Northern Territory of Australia (2006) 152 FCR 150 at [291]–[292]). As the full court of the Federal Court has noted, an anthropologist such as Dr Kruse may observe and record matters relevant to both the social organisation of a native title claim group, and the nature and content of their traditional laws and customs. There may also be circumstances in which an anthropologist may give evidence about the meanings and significance of what aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear (see Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442). Dr Kruse’s evidence has not been challenged and I accept it for the purposes of this matter. Dr Kruse outlines his qualifications in social anthropology which include an honours degree and a doctor of philosophy degree, as well as outlining his work history in Western Australia, and in the Central Desert area and with the Birriliburu and Wiluna areas in particular.
Dr Kruse’s affidavit was subject to non-disclosure directions under s 155 of the Act for the purposes of Andy Campbell. Parties had no objection to the affidavit being adopted as part of the evidence for the present matter, and accordingly, the s 155 directions were amended by Member O’Dea on 27 July 2012.
One of those directions was that the evidence not be reproduced verbatim in the reasons for the Tribunal’s decision. As such, I refer to that affidavit in broad terms and only to the extent required to explore evidence relevant to this inquiry.
Dr Kruse’s evidence largely goes to the significance of Jukurrpa, including to the native title parties. He also sought to outline, in some detail, why the Jukurrpa are of particular significance to people such as the native title parties, rather than being just of general significance, and describes the onus on people who hold customary responsibility to look after Jukurrpa, and punishments if they do not look after Jukurrpa (including physical punishment). He confirmed that the Wati Kujarra story (the route the Two Goanna men travelled) is associated with male ritual knowledge and gives the direction of that route which appears to include areas on or near E69/2677. Finally he confirms Imbin Rockhole is very culturally important because of the Jukurrpa and its role as a meeting, hunting and historical place. He indicates that an activity done in the Birriliburu area could have an impact on the Wiluna area nearby.

Grantee party documentation

The Grantee party submitted a statement of contentions on 10 July 2012. They have included reference to factors relating to s 237(c). However, the native title party advised they did not seek to pursue that limb of the objection in their contentions filed on 5 June 2012, and as such I do not outline further the grantee party contentions on s 237 (c).
The general intentions of the grantee party, as listed under the heading ‘Marford Group Pty Ltd’ are outlined as:
·The Directors ‘own land in their own right and this is maintained in pristine condition. They have some knowledge of looking after the country’.
·The exploration program will involve: a ‘review of all past field work’ including ‘the purchase of multi-client airborne geophysical data and ortho-rectified aerial photography’; ‘field mapping and soil and rock chip sampling’; soil samples being ‘analysed by a portable XRF machine in the field’; and they refer to ‘No ground disturbance’. ‘...A lot of this initial work will be conducted from’ existing access ways using ‘fence lines, old mineral claims and tracks on this tenement’. This information would then be assessed and ‘follow up work would probably require RAB drilling of coherent gold and multi-element soil anomalies’ (again using ‘existing tracks’ for access).
·Because they are prepared to enter into an RSHA ‘they will obviously be entering into discussions with the Native Title Party prior to any major exploration program undertaken on this exploration licence’
·If ‘any other ‘sites or areas of significance’ are identified, Marford will respect them, along with existing ones, as required under the AHA’
More specifically, the grantee party outlined that they adopted the contentions of the Government party (at 16 and 20), that ‘there is nothing stopping the NTP from monitoring and discussing the activities of the Grantee, subject to safety requirements’ (at 14), and that:
·In relation to s 237(a):
o the Tribunal must take into account other activities that may have had an impact ‘on the native title party’s community or social activities’ in the relevant area (‘such as mining or pastoral activity’), (at 6-8)
o the native title party’s evidence in relation to community and social activities ‘is vague’ (at 9) and the act ‘is not likely to interfere directly with the carrying on of the community or social activities of the Native Title Party’ (at 14-15)
·In relation to s 237(b):
o the native title party has ‘identified one or two areas or sites of particular significance or asserted the existence of same’ (at 19)
o These are not likely to be interfered with because the grantee party:
§will sign a RSHA
§will abide by the AHA, and
§‘has over 55,000 hectares to explore on E69/2676[5] alone’
o Grantee party intentions are relevant ‘to whether the interference and disturbance is likely to occur’ (at 21)
o They are aware of the ‘protection given to Aboriginal sites, whether registered or not’, under the AHA and will act ‘lawfully and in accordance with the AHA’ (at 22-23); and are ‘willing to enter into a standard regional heritage agreement in the form approved by the Government party’ (at 24).

In relation to this evidence, I note that: there is no detail on where or how the Marford Group directors ‘look after the country’; there are several minor roads on the tenement according to the quick appraisal; and the grantee party may do activities such as RAB drilling. They are prepared to enter into a RSHA; there is evidence of previous exploration in the area, but not mining activity; and it is not clear, who or how the grantee party suggests the native title party should monitor and discuss their concerns - for example, is it with the grantee party, or the relevant regulatory body?

[5] Note this tenement is covered by a separate determination,

Native title parties Contentions in Response

On 8 August 2012, the native title parties provided contentions in response (‘Response’) to the Government and grantee party contentions.
The native title party’s Response states, in relation to grantee party evidence, that:
·Information provided by the grantee party on 10 July 2012 ‘lacks detail and is unsworn’, and that some statements made by the grantee party are ‘unsubstantiated and vague, and therefore have little probative value’ (at 2.3)
·Information provided by the grantee party about their intentions is ‘vague and lacking in sufficient detail’ (at 2.4)
·It appears that the grantee party intends to conduct ‘RAB drilling’ (at 2.4 and 3.9) and intends to use tracks which they presume to exist. The native title parties reject that presumption on the basis that it is likely no such tracks exist or if they had been created previously, they should have been rehabilitated (at 2.6) [I note, as outlined at [23] above, that several minor roads do exist on the area].
·The grantee party is prepared to sign a RSHA, but the RSHA does ‘not require the Grantee Party to enter into broader discussions with the Native Title parties about their exploration program’ (at 2.7 and 2.10), nor do the intended activities of soil sampling and rock chipping trigger a heritage survey under the RSHA (at 2.8). In addition, the RSHA has no relevance to community and social activities (at 2.10)
·The grantee party’s stated intention to act in accordance with the AHA ‘does not address interference that may occur under section 237(b) of the NTA which is not prohibited by section 17 of the AHA’ (at 2.13)
The native title party’s Response states, in relation to Government party evidence, that:
·They have not provided evidence as to the activities conducted over the area from the 24 granted exploration licences that were stated to have existed on E69/2677. The Response went on to say ‘the mere grant of such tenure does not mean that the area of the Tenements has necessarily been negatively impacted’ (at 3.1 and 3.8)
·The Government’s contention that Imbin rockhole (or Yimbin) is outside of the proposed licence area is not accepted – Mr Wongawol and Mr Ashwin consider that the area ‘falls at least in part within the tenement’ (at 3.4). [I note also that the grantee party contentions (at 13) state that ‘...the Yimbin Rock Hole and Hill 611 are just within the southern boundary of E69/2677’]
·The Government party has not recognised that the affidavits ‘establish that the hill above Imbin and the associated water source are not only connected to the jukurrpa, but were in fact created by it and are physical manifestations of the jukurrpa’s travels through the landscape’ (at 3.5 and see also 3.4 and 3.13)
·The Government party July contentions (at 40) suggest the grantee party is willing ‘to enter into an agreement with the native title party to address most of the concerns of the native title party’ (emphasis added). The native title parties Response states the ‘Grantee Party has evinced no such intention’ and goes on to outline that the RSHA is largely confined to heritage issues, and not community or social activities (at 3.6-3.7) [I do note that grantee party has indicated it would enter into a RSHA with one of the native title parties – whether or not this RSHA would address ‘most of the concerns of the native title party’, or whether it needs to for the purpose of s 237 of the Act, is a question for the evidence.]
·The Government party have not provided any evidence as to the previous activity on the tenement, even though it is within their knowledge, and that past tenements ‘may have been granted pursuant to an agreement with the native title holders’ (at 3.8) [I note that it seems both the native title parties and the Government party had knowledge, or may have had knowledge of the use to which the land had been put previously, or whether agreements had been made with the native title parties for such use, but no party has offered that evidence, or any further detail about the existence of such evidence].
·The Government party has generalised to state that sites such as jukurrpa are ‘common’, and has not provided proof of that – the native title parties state ‘it is not reasonable to say they are ‘common’ without proof of that fact. It is also not reasonable to suppose that all Aboriginal groups have the same system of law and custom, and, therefore, place the same level or degree of importance upon such places’ (at 3.14)
·The Government party has not accepted that ‘mere presence in an area may cause direct interference in that area, and that whether interference is caused is a matter for evidence’. The native title party cites Andy Campbell in support of the fact that, for Western Desert law and culture ‘there may be ngulu sites to which interference will be caused by mere access by the inappropriate person’, and that Mr Wongawol has attested to such a site near Imbin Rockhole where ‘ladies’ cannot go, and also the hill north of the Rockhole (at 3.16 -3.17).

Weighing up the evidence – E69/2677

In relation to tenement E69/2677, the native title party have provided sworn evidence in the form of affidavits from two native title senior men namely Mr Frankie Wongawol and Mr Victor Ashwin. They have also provided evidence from anthropologist Dr Kruse as well as contentions and a response. Taking into account the information and documents also provided by the Government party and the grantee party, in my view this evidence establishes the following:

There is a site called Imbin Rockhole (ID 2127) which according to DIA records is just outside of the tenement border but according to the native title party and grantee party is also just within the tenement. The Government party agrees that this is a site of particular significance and states that it is just outside the tenement. I accept that the boundaries of these areas are often difficult to isolate precisely and that part of Imbin may fall within the tenement area. The Imbin Rockhole is a men’s area and prohibited to women.
The native title party camp and hunt in the Imbin Rockhole area about once a month, and I accept that the native title party are required to travel in a certain way through the tenement because of the Jukurrpa and I note the Government party agrees with this contention. Further than this, there is not a lot of detailed evidence about other community and social activity. I agree that in the usual course of events, hunting and exploration can coexist. In relation to the Jukurrpa, I deal with this as an area of significance under s 237(b).

There is a hill north of Imbin rockhole, within the tenement, which contains a water source and which is ngulu, that is, secret/dangerous (Hill 611). I agree with the Government party’s contention that not all such sites are of particular significance, but in this case I agree with the native title party that evidence establishes it is a site of particular significance because of its relationship with the jukurrpa travels.
This hill and water source are north of the Imbin rockhole and so are likely to be on the tenement - no party has indicated otherwise.
Imbin Rockhole and the water source connected to Hill 611 are connected to the jukurrpa and these areas were created by the two goanna men.
It is likely that the jukurrpa or dreaming track zig zags in an easterly direction travelling through Yampi Well, Mt Ooloomgathoo and through Imbin Rockhole and the proposed licence area.
I accept that the native title party has a responsibility to look after the jukurrpa and I accept Mr Wongawol’s uncontested evidence that he has previously been speared in the leg for not looking after an area, and that he runs a risk of similar physical punishment if he does not look after the Imbin rockhole, the water source near the rockhole, and Hill 611.
I agree that there is no actual evidence provided that jukurrpa may be ‘common’, as asserted by the Government party, but even if that was the case, I accept, based on previous Tribunal decisions, that native title parties do not necessarily put the same level of importance on each jukurrpa.
There has been previous exploration activity but no mining activity – neither the Government party nor the grantee party provided any particular evidence about previous exploration activities over this tenement, so it is difficult to say what extent any previous exploration activity has had on the tenement.
The Government party will place certain conditions and endorsements over the tenement, but I note condition 6 regarding the requirement to do a detailed plan before ground disturbing activity, appears only to relate to 0.3 percent of the proposed licence (that is to Earheady).
The grantee party does intend to do non ground disturbing activity but also appears to intend to do some ground disturbing activity, including RAB drilling and it is not clear where or when that activity is likely to be done.
The grantee party is agreeable to execute an RSHA in favour of the Birriliburu People. The Government party notes that the RSHA allows for parties to meet to endeavour to resolve issues if the native title party considers a proposed activity to be not non ground disturbing, however, the native title party indicates that the RSHA mostly relates to heritage issues and not to social or community activities.
The grantee party indicates that they will use existing tracks for their activities and I note DMP documentation indicates there are several minor roads on this tenement. From their evidence, it appears that the grantee party is willing to take measures to consult with the native title party as per the RSHA and regulatory regime should tracks not exist in the areas where the grantee party requires same, as the creation of such tracks would be likely to be a ground disturbing activity.

Community and Social Activities – s 237(a)

There is little precise evidence regarding community and social activities, apart from hunting and camping once a month and the requirement to travel according to the Jukurrpa.
I accept that, given the size of the tenement relative to the claim and determined area which overlaps it, and the likely nature of exploration activities, that these activities can co-exist with community and social activities. As such, I do not believe there is likely to be direct interference with these activities for the purposes of s 237(a). In relation to the activities related to the jukurrpa, I outline those below in the analysis of s 237(b), as they relate more to the nature of the sites as the evidence has been presented in this matter.

Sites of Particular Significance – s 237(b)

In Daisy Lungunan and Ors on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (14 March 2012), Member O’Dea noted that dreaming tracks may be regarded as sites of particular significance but that will depend on the evidence presented in each case. In Andy Campbell, Member O’Dea found that for a gender restricted site, which had been identified, ‘Compliance with relevant laws and regulations may not be sufficient to prevent interference to that site. It will be difficult for the grantee party to avoid interference with the site without consulting the native title party’. In that matter, the grantee party provided no evidence. In the current matter, the grantee party has provided some evidence and indicates it is willing to enter into discussions with the native title party – I note the RSHA encourages such discussions around heritage issues, although it is not so relevant in relation to social and community activities.

The Government party indicated that, in relation to Imbin Rock Hole and the hill to the north, identification as a ngulu or association with a jukurrpa is not determinative of whether or not the site is of particular significance. The Government party contends that secret places and jukurrpa tracks are common and evidence must show that specific places stand out in some way from these generic categories. In addition, to the extent that these sites are found to be of particular significance, there is no evidence the grantee party won’t follow the regulatory regime. The Government party suggested the Tribunal should follow the reasoning in Emergent. I note that in Emergent, Member O’Dea determined that the act was an act attracting the expedited procedure. In that matter, the native title party objection was in relation only to s 237(b) of the Act. The affidavits of members of the native title party in that matter, including Mr Frankie Wongawol, were not reproduced in full due to cultural sensitivities so I do not have the benefit of the information specified in those affidavits, save to say that comments by Member O’Dea indicate that it lacked a quality of detail and it appears that the maps referred to in the affidavit evidence were not annexed to the affidavits.
I also note, in that matter, the grantee party filed three separate sets of contentions and undertook to ‘conduct heritage surveys of the tenement area prior to conducting ground disturbing works’ and also acknowledged ‘that ground disturbing activities could interfere with sites or other areas significant to the native title party, but confirms its intention to consult with the native title party in order to avoid any breach of the AHA or interference with areas or sites of significance’.
In that matter, the native title party evidence indicated there were four jukurrpa across the proposed licence, including the wati kutjara, which is said to exist in this current matter. However, the native title party did ‘not provide any details about the stories associated with each jukurrpa or give any indications of the paths they take through the tenement area’ and also did not identify the sites that were ngulu.

Member O’Dea also explored the evidence of Dr Kruse, and drew a distinction between areas which might be deemed to be generally significant and areas which ‘could be regarded, being manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore of particular significance to the Martu people’. Member O’Dea went on to say that ‘the difficulty with this evidence... is that the factual material upon which an assessment of the significance of the sites is contained not in the affidavits of the Wiluna deponents, but in that of Dr Kruse’. In the current matter, the affidavits contain detailed evidence about the tracks, their links with particular sites, and their significance to the native title parties.
Member O’Dea refers to the native title party citing his decision in Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 at [40] (‘Allarrow’), stating ‘that jukurrpa tracks by their very nature are not areas, sites, or places of particular significance which are readily identifiable by persons other than those instilled in the mysteries of the jukurrpa, therefore notwithstanding the best intentions, inadvertent interference is distinctly possibly if the grantee party enters the area without the guidance of the native title party’. Member O’Dea distinguishes his findings in that case with those in Emergent and outlines that the evidence presented in each case was significantly different. In Allarrow, two sites involving a wash area and soak system were involved and Member O’Dea stated ‘it is also clear from the careful language used by the deponents that cultural information regarding the....area is extremely sensitive and restricted to certain members of the native title party’.

In my view, the material provided in Emergent and the findings in that matter can also be distinguished from the current matter. In the current matter, the native title party affidavits have indicated the path the jukurrpa takes through the tenement, and describe the jukurrpa’s significance as well as its relationship to Imbin and Hill 611. I find that while Dr Kruse’s evidence is also of interest, and confirms jukurrpa are of particular significance, it does not add any more weight than has already been provided in the affidavits of the native title party. Member O’Dea, in Emergent, stated that:
mere reference to the existence of a jukurrpa or ngulu places without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites of areas of particular significance on the proposed licence, let alone a finding that the area in which the tenement is located is site rich or imbued with a pervasive spirituality such that any unauthorised entry on the tenement would constitute relevant interference.
In that matter, Member O’Dea was satisfied that the grantee party was ‘cognisant of its obligations under the AHA and has undertaken to take appropriate steps to avoid interference with sites’. In Andy Campbell, Member O’Dea found that the ‘evidence established Imbin Rock Hole was a site of particular significance according to the traditions of native title holders’ (at [61]), but he could not find the same for the general area around Imbin - the evidence did not support that conclusion in that matter. He also found that the wati kutjara travels through the Imbin area (which in that matter was a larger area than the Rockhole site itself). He went on to say that ‘the fact that there may be places within the Imbin area that are considered more significant or in need of greater protection than others suggests that a line needs to be drawn between specific sites and areas and the broader Imbin area in which they are situated’.
In the current matter, the native title party have drawn that line. In my view, in the present matter, it may be possible for the grantee party to avoid Imbin Rock Hole but the jukurr and Hill 611 and the associated soaks is not so easily able to be identified in its boundaries so as the grantee party would be able to avoid it or avoid making some gender specific interference. It is likely that the grantee party could inadvertently interfere with the jukurr, which appears to travel on, and through this tenement, or the ngulu site of Hill 611 without negotiations as allowed for under s 31 of the Act.
In relation to the native title parties’ contention that Andy Campbell was support for interference by ‘mere access’ to specific sites, I note that ngulu sites are referred to in [51] of Andy Campbell, but I could find no specific support for the contention regarding the problem of ‘mere access’ in that determination. However, [67] and [70]-[71] of that determination addresses access by an inappropriate person, particularly where it has been argued that access to those areas is restricted to persons of a certain gender or status. Member O’Dea, in Andy Campbell, stated that ‘I do not accept the native title party’s contention that the fabric of the country on, and immediately adjacent to, the proposed licences is such that unauthorised entry will result in the kind of interference contemplated by s 237(b). However, I accept that access to restricted areas without consultation with the native title party may result in interference’. This was particularly so for an area restricted to initiated men, and that fact had also been supported by anthropological evidence. Member O’Dea concluded that ‘It will be difficult for the grantee party to avoid interference with the site without consulting the native title party’, and ‘In the absence of evidence about the grantee party’s intentions’ he could not find ‘that the protective regime will eliminate the risk of interference’ with that site.
In the current matter, the grantee party has indicated intentions to enter into an RSHA and consult with the native title party, which allows parties to meet if the activity is ground disturbing. They state they are aware of Hill 611 but don’t provide any specific proposals for avoiding interference with it. I find this particularly relevant as it has been made clear it is a men only site and is of particular significance to the native title party. I am also concerned that the condition requiring the grantee party to do a detailed plan before ground disturbing activities only seems to relate to 0.3 per cent of the proposed licence, and that the grantee party may do RAB drilling in the tenement area, although it is not clear where or when that activity would take place. In Tarlpa, Hon CJ Sumner suggested that:
the RSHA does not cover all the activities which the native title party asserts are likely to be interfered with. The regulatory regime does not enable the native title party to exercise those responsibilities to the extent of ensuring that no sites are interfered with as a ministerial discretion exists permitting interference to occur in some circumstances. Further, the RSHA is principally concerned with the issue of site protection... the carrying on of the community activity of looking after country extends beyond the issues of potential interference with a site of particular significance to them. Even though the RSHA would require the grantee party to give notice about proposed on ground works, this does not mean that it provides a mechanism for dealing with all aspects of the native title party’s responsibility to look after country.
On the basis of the evidence as outlined above, I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area, albeit that that interference may be inadvertent on the part of the grantee party, and I find the normal negotiation processes allowed for under s 31 should apply.

E69/2884 (100 per cent overlap with Wiluna native title claim)

In the context of this tenement, it should be noted that there is a DIA registered site called Weld Spring (or Well 9) (site ID 2126) just outside of both the Wiluna native title claim and the Birriliburu determined area, and very near the north eastern boundary of the proposed licence. Tribunal mapping also shows a site exists directly over this proposed licence, which is an ‘Other heritage place’ on the DIA record, called ‘Weld Springs’ (site ID 2123). This site is large relative to the proposed licence as it takes up approximately half of the area (to the east). The similarity in name of these areas appears to have caused some confusion within the documents provided by parties. This is dealt with in more detail below.

Government party documentation

Government party documentation establishes the underlying land tenure of the proposed licences and any relevant services affected to be as follows:

GWA/15, East Murchison at 100 per cent (DMP advises this is a groundwater management area within the Canning Stock Route reserve, managed by the Western Australian Department of Water)
Unnumbered Land Act Reserve (UNN 1001) at 25.9 per cent
Pastoral lease Glenayle (3114/1062) at 74.1 per cent
Seven exploration tenements granted between 1984 and 1986, between 0.3 per cent and 47.8 per cent, now surrendered and nine exploration tenements granted between 1993 and 2006, between 1 per cent and 39.2 per cent now surrendered or forfeited
Two mining tenements marked in 1997 and never granted (withdrawn in 1999)
SSM-M 15 (Standard Survey Mark for Geodetic Survey Station)
Canning Stock Route and seven other tracks
Canning B wellbore and windmill
Thirty three minor watercourses, non perennial

As well as the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), further conditions to be imposed on this proposed licence are as follows:
The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving notification of:
· The grant of the Licence; or
· Registration of a transfer introducing a new licence;
advise, by registered post, the holder of any underlying pastoral grazing lease details of the grant or transfer.
No interference with Geodetic Survey Station M 15 and mining within 15 metres thereof being confined to a below depth of 15 metres from the natural surface.

Consent to explore on Canning Stock Route Reserve given subject to the following:

No exploration activities being carried out on the Canning Stock Route Reserve UNN 1014[6] which restrict the use of the reserve.
[6] This does not appear to be marked on the tengraph – only UNN 1001 is marked, and the Stock Route itself with no number ( in the ‘services affected’ column of the quick appraisal)
In addition, the Government party’s contentions (at 18) indicate that a further condition will be placed on the grant of the proposed licences requiring the licensee, ‘if so requested in writing by the Wiluna, the applicants in Federal Court application no. WAD6164 of 1998 (WC98/24)’, to ‘execute in favour of the Birriliburu the Central Desert Regional Standard Heritage Agreement’ (‘RSHA’) [emphasis added]. The ‘Birriliburu’ are not specifically identified, and this is problematic as the Birriliburu determination area does not overlap the proposed licence and, while there are a number of native title claims containing that name, none of them are on the Tribunal’s Register of Native Title Claims. As outlined at [2] above in this determination, the tenement is overlapped by the Birriliburu #3 claim, but this is not a registered claim. I gather this may be a typographical error and that the Government party will execute an RSHA in favour of the Wiluna native title party as a condition of grant. That this was the case was confirmed by the Government party by email on 6 November 2012.
DIA documentation provided by the Government party reveals two recorded sites within E69/2884, namely the registered site Bridleface Station (ID 2124) and the other heritage place, Weld Springs (ID 2123).
The Government party contentions, dated 3 July 2012, for E69/2884 outline rights which will be conferred by the grant of the proposed tenement under s 66 of the Mining Act, as well as addressing the native title party affidavits and contentions. It states that this proposed licence falls 100 per cent within the Wiluna claim, and that it contains a pastoral lease (Glenayle at 74.1 per cent) and unallocated crown land at 25.9 per cent, which appears to be largely the Canning Stock Route) (at 3, 5-7).

s 237(a)

The Government party accepts, based on Mr Wongawol’s affidavit, that ‘members of the Native Title Party travel through the proposed tenement area while singing the songs associated with the jukurrpa and gather bush tobacco’ (at 44). However, the Government party states ‘there is not likely to be direct interference with those activities’ because:
·The area has been subject to previous exploration activity, namely granted exploration licences which have partly overlapped the proposed licence, by almost 50 per cent in one case (at 9 and 45)
·The area has been subject to ‘possible mining activity’ (at 45). [While ‘mining’ in the broader sense may include ‘exploration’, I note there are no live, or dead, mining tenements].
·There are no Aboriginal communities within the proposed tenement (at 8 and 45)
·The gathering of bush tobacco, singing the songs of the jukurrpa and mineral exploration can coexist (at 45)
·Mineral exploration would not cause substantial interference with native title party access to the area, including the Well 9 (Weld Spring), as an ‘exploration licence does not carry a right to control access to land’ (at 45)

s 237(b)

The Government party contentions suggest that ‘both the existence of the AHA regime and the availability to the Native Title Party of the RSHA give rise to a presumption that sites will be protected’ (at 55).
The Government party also submits:
·‘Weight must be given to the evidence provided in relation to the proposed activities of each particular grantee party, including their intention to adhere to the regulatory framework and conditions imposed by the Government party’ (at 56)
·There is no suggestion the grantee party in this matter has ever, or would ever, breach the regulatory regime (at 57)
·There is confusion in native title party evidence in that it ‘appears that “Weld Spring” is used both to refer to the specific site of Weld Spring (“Weld Spring Site”) and a more general area, that the Government party will refer to as the “Weld Spring Area” (at 59 – emphasis in original). The Government party goes on to say that the ‘native title claimants identify an area south of Well 9 and the ‘Weld Spring Site’ within the ‘Weld Spring Area’ that they believe the Warlu jukurrpa passed through and made the bush tobacco’ (at 60). The Government party say they do not believe the Weld Spring Area (as distinct from the Weld Spring site itself) is a site of particular significance as there is little evidence to support it being an identifiable or defined area, ‘or alternatively, if it is, that it is so large as to encompass the eastern half of the proposed tenement area’ (at 61).

While the native title party’s evidence may lack some distinction in terms of references to the Weld Spring site as opposed to the Weld Spring Area, I consider the Weld Spring Area to be a fairly well defined area. For example, Tribunal mapping, dated 24 August, shows the ‘Other’ heritage site ‘Weld Springs’ which does in fact cover the eastern portion of the tenement. This is reiterated the native title party, whose sworn evidence states belief that the ancestor spirits reside within the proposed licence (at 3.21).

The Government party goes on to submit that:

·In relation to the soak at Weld Spring, it is unclear whether it is within or outside of the proposed licence (that is, within Class A Reserve 3649 (National Estate 362/77))
·‘The Government Party does accept that there may well be sufficient evidence for the Tribunal to find that the Weld Spring site that lies outside the boundary of the proposed tenement area is a “site of particular significance”’ (at 62 – emphasis in original)
·Jukurrpa are ‘common in the country of most Aboriginal groups’ and ‘general evidence that there are or may be places on or near a tenement area which can be said to fit a generic category such as jukurrpa track or a secret place is not sufficient to establish that an area or site is of “particular significance”’ (at 63)
·While there is some evidence that the Crow jukurrpa crosses through the proposed licence, it is unclear whether the Emu and Bush Turkey jukurrpa do (at 64)
·The Tribunal should take the same approach to jukurrpa as used in ‘Emergent’ [at 34-46]
·The Government party does not accept the contention that ‘mere presence in an area may cause direct interference with that area’ (at 66)
·Interference with any sites or areas of particular significance is not likely because:
o There is no evidence that the Weld Spring Site (as opposed to the Weld Spring Area) extends into the proposed licence
o The grantee party is aware of the existence of the Weld Spring Site and the Weld Spring Area
o The AHA is likely to prevent such interference

Initial native title party documentation

Native title party contentions submitted on 5 June 2012 outlined statements of law and argument relating to s 237(a) and (b), and argue that the regulatory regime is not robust, citing a number of reports and information in support (at 2.14-2.23). They then go on to outline specific information regarding this proposed licence and the native title party.
In relation to community and social activities relevant to s 237(a) of the Act they indicate:
·That ‘activities associated with the native title holders’ obligation to ‘look after country’ are not ‘mere assertions about spiritual connection’ (at 3.5-3.7)
·While ‘evidence of the mere existence of songlines is not enough to support a decision that the expedited procedure does not apply’, further evidence regarding community or social activities which follow the songlines can be persuasive (see Banjo Wurrunmurra and others (Bunuba)/Western Australia/Francis Robert Salmon and another [2012] NNTTA 27 (19 March 2012) at [42]). Members of the native title party do perform such activities in relation to the jukurrpa ‘each and every time they pass through the area of the Tenement. The song for the jukurrpa is connected to the process of initiation under traditional law and custom’. The native title party also gather bush tobacco ‘which the Native Title Party believes was made by the Warlu [crow] jukurrpa. Members of the Native Title Party travel from Wiluna to the area of the Tenement to collect it’ (at 3.9 and 3.12)
·Activities which occur off the proposed licence can be taken into account where there is a clear nexus between them and the issues being considered under s 237 (Silver at 35) (at 3.10)
·Activities of the grantee party will interfere with the ability of the native title holders ‘singing the songlines’ and looking after the songlines, and ‘clearing of vegetation or restrictions to access by members of the Native Title Party is likely to interfere with the gathering of bush tobacco’ (at 3.13)
·‘Meaningful consultation and negotiation needs to take place between the Native Title Party and the Grantee Party to ensure that community and social activities are not likely to be interfered with’ (at 3.14)
In relation to sites relevant to s 237(b) of the Act, the native title party indicates that:
·The RSHA is not ‘an adequate means of dealing with issues under s 237 of the NTA’ (for example, at 4.18-4.23, 4.29, 5.2(c)), nor is the AHA (at 4.1-4.13), and in support of that contention, the native title party refer to, among other things, Tarlpa [51]. However, the grantee party takes issue with the reference to that determination, as they state that Hon C J Sumner, Deputy President Sumner in that matter found that the expedited procedure ‘did, in fact, apply’. The implied point appears to be that despite an objection to an RSHA on the grounds that it does not provide sufficient protection, in Tarlpa, it must have provided sufficient protection as Hon C J Sumner did not uphold the objection in that case. In looking at Tarlpa, Hon C J Sumner’s view of the RSHA was (at [50], emphasis added):
My finding in relation to the considerable number of contentions and the evidence devoted to this topic is that the RSHA is of minor relevance to my determination because the issue to be decided, following the native title party‘s amendment of its contention, is confined to s 237(a) and whether the grant is likely to interfere directly with carrying on of the community activities associated with ‘looking after country’ as identified in the evidence in this case.
The expedited procedure was determined not to apply in that matter, however, it did not relate to s 237(b), and the RSHA issue was of minor relevance. As such, I do not dwell on this part of the grantee party contention further.
·The proposed tenement:
o contains Jukurrpa (or Tjukurrpa) tracks ‘made by mythic beings of great importance to the native title holders’ and the proposed licence ‘is traversed by the Warlu [crow], Karlaya [emu] and bush turkey jukurrpa’ (at 4.24)
o the area of Weld Spring[7] ‘was created by the warlu jukurrpa, as was the bush tobacco which grows in the area of Weld Spring’ (at 4.24)
[7] It is not clear here whether this reference to Weld Spring is to site 2126 (Well 9 – Weld Spring) or to 2123 (Weld Springs).
o the area of Weld Spring[8] ‘is also believed to be the site of a massacre of ancestors of members of the Native Title party by non-Aboriginal people. The spirits of those killed reside at the area of Weld Spring, giving the area particular significance’ (at 4.24)[9]
[8] Presumably this refers to site 2126.
[9] Presumably this also refers to the evidence contained in the CD, although no specific reference is made to the CD in the information provided by the native title party.
o interference with the jukurrpa ‘is likely to result where entry to parts of the Tenement have not been agreed with the Native Title Party’ (at 4.25) because:
othe jukurrpa tracks are not readily identifiable (see Les Tullock & others (Tarlpa)/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (28 June 2011) (at [40]))
ointerference with one part of the ‘jukurr’ ‘may cause interference to sites and/or country located at other points along the jukurr’
omembers of the native title party ‘have a responsibility to traditional owners in other areas where the same jukurrpa lines travel’
oaccess to the area known as Weld Spring[10] could cause interference ‘being the location where the spirits of murdered Martu people reside’ which ‘is likely to result in traditional punishment for members of the Native Title Party’
·endorsements and conditions may not be sufficient to avoid interference with the areas of particular significance (at 4.25-4.27)
·...‘meaningful consultation and negotiation between the Native Title Party and the Grantee Party is necessary to ensure that sites or areas of particular significance are not likely to be interfered with’ (at 4.28)
[10] Presumably this relates to Well 9 – Weld Spring (site 2126).

Ms Lena Long Affidavit

Ms Lena Long’s affidavit, dated 5 April 2012, states that she lives at Wiluna and is a member of the Wiluna native title claim. I accept she has the necessary authority to speak for the area on behalf of the native title party. Wiluna is approximately 150 kilometres south east of the proposed licence. The affidavit is in the following terms:

I Lena Long, pensioner, of Unit 2, Scotia Street, Wiluna, in the State of Western Australia, sincerely affirm as follows:

1.   I am a traditional owner for the area of tenement application E69/2884 and E69/2676 (collectively “the tenements”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I have cultural authority to speak for the area of the Tenements.
2.   I make this affidavit in support of the Statement of Contentions of the Objector (the Native Title Party) in an inquiry in the objections to the expedited procedure WO11/979.
3.   I have been shown A3 maps of the Tenements by a lawyer from Central Desert Native Title Services.
4.   Everything I have said in this affidavit are things that I know to be true.
5.   Tenement E69/2884 is right near Well 9, and on top of the place we call Weld Spring. I know that there is a soak at Weld Spring. That spring was there first, been there for the old people. The old people used to stop and camp there.
6.   Because old people used to go there, to Weld Spring, they got into trouble with the whitefellas. My grandmother told me the story, the whitefellas they be shooting them, burning them. The Martu people, they were just there because they wanted water, and those white people got them. Those guns, they fire faster than spears.
7.   I don’t want to camp there now, because of what happened. Those spirits they must be there. Some of the people that got killed, they were mabarn [medicine men]. That makes me scared. Those spirits shouldn’t be disturbed.
8.   I want that area around Well 9 and Weld Spring to be looked after properly, because of what happened there. It is important to us, because of what happened to our old people. Not just the well, but the soak too.
9.   Tenement E69/2676 is over Well number 6 on the Canning Stock Route. Number 6 was our old people’s ngurra [home, home country]. I grew up as a little one there at well 6. That was a law ground too at number 6. That is a ngurra for us. It was used as a law ground when I was little. The father of Jimmy Williams – the Man Behind the Gun – he went through law there. He got a giveaway wife there. They hit him on the back, and give him daughters.
10.    There is rock art at well number 6, but I never been there, there in the camp. That rock art, not for me to look at, I’m a woman.
11.    The stock route is important to me because I was born there, at well 7. It has a lot of dream time stories along there for men, which I can’t talk about. They go through number 6 and up to number 9 and then keep going. It has dreamtime stories along there for women, but I can’t talk about them. You need to ask the old ladies.
12.    Martu long time, years ago, before our time, they traveling along there, following that water. They know the water holes, away from the wells. Canning making Aboriginal people all the wells along there, but they don’t know the main ones; people kept them secret. It was the jukurrpa going through there that made the water, at Weld Spring and at number 6. Those jukurrpa make those places important.
13.   When they travel on law trips, coming down from Durba Springs, they got a lot of jukurr stories along that way. People sing the songs for that story. The men still sing the songs traveling down.

Mr Frankie Wongawol Affidavit

Mr Frankie Wongawol provided an affidavit relating to this proposed licence (E69/2884), dated 4 April 2012. He states he is a member of the Wiluna native title claim and a senior initiated man. I accept he has the necessary authority to speak for the area on behalf of the native title party. Mr Wongawol states he lives at Bondini Community, which is approximately 7 kilometres south east of Wiluna and approximately 200 kilometres south east of the proposed licence. The affidavit is in the following terms:

I, Frankie Wongawol, pensioner, of Bondini Community, in the State of Western Australia, sincerely affirm as follows:

1.   I am a traditional owner for the area of tenement application E69/2884 and E69/2676 (collectively “the Tenements”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I am a senior wati (initiated man) and a Putijarra Martu man. My Martu name is Miparri. I have cultural authority to speak for the area of the Tenements.
2.   I make this affidavit in support of the Statement of Contentions of the Objector (the Native Title Party) in an inquiry to the objections to the expedited procedure WO11/976 and WO11/979.
3.   I have been shown maps of the Tenements by a lawyer from Central Desert Native Title Services, copies of which are attached and marked “FW1” and “FW2”.
4.   Everything that I have said in this affidavit are things that I know to be true.
5.   As an elder, I have the important job of looking after and protecting country. Martu law says that I have to look after the special places and the dreaming stories (jukurrpa). When I talk about ‘jukurrpa’, I mean all of the places, special sites and tracks that were left by the dreaming. The jukurrpa is what created country; it is still alive today and we have to respect it.
6.   Tenement E69/2884 is to the south and the west of Well 9 on the Canning Stock Route. Well 9 is sometimes called Weld Spring, but Weld Spring also means a bigger place, mostly to the south of the well. The kakarra (eastern) side of the Canning Stock Route in E69/2884 is a really special place that Martu mob call Weld Spring.
7.   Weld Spring is a large soak. The old people used to camp there all the time. They camped there because of the water at the rockhole. Because there is water there, the whitefellas put in a well. Our old people also camped there all the time because that area is important, and comes from the jukurrpa.
8.   Going through Weld Spring, including in E69/2884, is crow jukurrpa (warlu). Warlu comes up along the stock route, following the water. They got to follow the water. The jukurr crosses through Weld Spring. The soak there was made by warlu; it is a very important place.
9.   The crow jukurrpa also make the bush tobacco and left it at Weld Spring. This is an important spot for bush tobacco; people go up to Weld Spring to get it and bring it back down to town [Wiluna]. The warlu left that bush tobacco there. There’s bush tobacco around the soak that the warlu left.
10.    When I travel though that country, I sing the song for the warlu jukurrpa. I know the song: so does Timmy P. Sometimes we sing the song sitting down in Wiluna – because the song is about the young boys going through [law business] – but it is really important to sing the song when you go through Weld Spring, Well 9. We sing it every time we go through that country. We go up there whenever we can; we go for four, maybe five days.
11.    The emu jukurrpa (karlaya) also goes through that country, including in E69/2884. The emu and the crow travel together through there. The emu jukurrpa comes up from round Mt Russell way. He meets up with the crow in this country and then they travel on together, with the bush turkey. The bush turkey he travelling with the emu and crow and keeps going north. That emu jukurrpa story goes all the way up to Broome.
12.    The crow, emu and turkey jukurrpa all go together through E69/2876 as well. They didn’t sit down there, but when we go through there we sing the song for the warlu, the jukurrpa they left the song in that country. We sing it there and on up to Well 9. We take the boys up through the tenement, and we sing that song all along. All go though there – crow, turkey, emu – and they left the songs.
13.    Well 6 of the Canning Stock Route is in E69/2676. The Martu name for that place is Milyinirri. There’s rock art there at Well 6. I can’t talk about in this paper; I’ll get in trouble.
14.    There’s an important soak, main one, north west of well 6. It is outside of tenement E69/2676, but it is an important one.
15.    Weld Spring is also really important to Martu because of what happened there. The whitefellas, they killed lots of Martu there. They shot all the men, and kept all the ladies; that is why there is half-caste people. The people that they killed there, the whitefellas burned them. This is part of what makes Weld Springs so important. We need to protect that country because of what happened to our old people there.
16.    I’m worried about explorers going in that kakarra side of the stock route in E69/2884; he can’t go in there. The spirits of the Martu people who were shot are there and can’t be messed with. Explorers who go in there will get hurt by those spirits.

17. I’m also worried about the jukurrpa getting messed up, that songline. It is our job to keep that songline safe. We sing the song in our country, and then it keeps going north, all the way to Broome. We sing our part, and then the next people take it over. We don’t want explorers going into that kakarra part [of E69/2884], doing work like taking soil and walking around. If they go in, even just to look around, they will mess up warlu jukurrpa, or get hurt by those spirits.
18. If explorers muck up the jukurrpa, or if they get hurt by the spirits, I will get the blame. It is my job to look after that country; even if it isn’t my fault, I get in trouble, punished, if someone else does something wrong. I told the Tribunal about the time that I got in trouble when this happened before. I don’t want to talk about it again here; the Tribunal already knows that.

Grantee party documentation

The Grantee party submitted a statement of contentions on 10 July 2012. They have included reference to factors relating to s 237(c). However, the native title party advised they did not seek to pursue that limb of the objection in their contentions filed on 5 June 2012, and as such I do not outline further the grantee party contentions on this point.
The general intentions of the grantee party, as listed under the heading ‘Marford Group Pty Ltd’ are outlined as:
·The Directors ‘own land in their own right and this is maintained in pristine condition. They have some knowledge of looking after the country’ – unfortunately there is no further detail on what type of land this is or its location.
·The exploration program will involve: a ‘review of past field work’ (including airborne work); field mapping and soil and rock chip sampling; using ‘fence lines, old mineral claims and tracks on this tenement’ as access ways for ‘a lot of this initial work’; ‘RAB drilling of coherent gold and multi-element soil anomalies’ (using ‘existing tracks’ for access); ‘No ground disturbance’.
·Because they are prepared to enter into an RSHA ‘they will obviously be entering into discussions with the Native Title Party prior to any major exploration program undertaken on this exploration licence’
·If ‘any other ‘sites or areas of significance’ are identified, Marford will respect them, along with existing ones, as required under the AHA’
More specifically, the grantee party outlined that they adopted the contentions of the Government party (at 13 and 18), and that:
·In relation to s 237(a):
o the Tribunal must take into account other activities that may have had an impact ‘on the native title party’s community or social activities’ in the relevant area (including 18 previously granted ‘mining’ licences and a current pastoral lease), (at 6-8)
o the native title party’s evidence in relation to community and social activities ‘is vague’ (at 9) and the act ‘is not likely to interfere directly with the carrying on of the community or social activities of the Native Title Party’ (at 14)
o ‘there is nothing stopping the NTP from monitoring and discussing the activities of the Grantee, subject to safety requirements’ (at 11). [I note it is not clear, however, who the grantee party suggests the native title party should discuss their concerns with - for example, the grantee party, or the relevant regulatory body? Or what process would be involved in that communication?]
·In relation to s 237(b):
o the native title party has ‘not identified any areas or sites of particular significance or asserted the existence of any’ (at 16)
o Weld Spring is not on the proposed licence site (at 17)
o Grantee party intentions are relevant and they are aware of the AHA and will act ‘lawfully and in accordance with the AHA’ (at 20-21 and 26); and is ‘willing to enter into an RSHA in the form approved by the Government party’ (at 22).
Both the grantee party and Government party assertions that mining has occurred on the proposed licence is not borne out by the evidence available.

Native title party Contentions in Response

On 13 August 2012, the native title party provided contentions in response (‘Response’) to the Government and grantee party contentions.
The Response outlines, in relation to grantee party evidence for proposed licence E69/2884, that:
·‘where information provided by a grantee party is in the form of sworn evidence, then the Tribunal may lend it greater weight’ (see Butcher Cherel and others (Gooniyandi)/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (1 March 2007) at [91), and given that the information provided by the grantee party ‘lacks detail and is unsworn’ the Tribunal ‘should place no weight, or less weight’ upon that information (at 2.2-2.3 and 3.15)
·It appears that the grantee party intends to conduct ‘RAB drilling’ and intends to use ‘existing tracks’, with the native title party rejecting that presumption on the basis that it is likely no such tracks exist or if they had been created previously, they should have been rehabilitated (at 2.4-2.5 and 3.15).
·The grantee party is prepared to sign a RSHA, but this does ‘not require the grantee party to enter into broader discussions with the Native Title party about their exploration program’ (at 2.7 and 2.11), nor do the intended activities of soil sampling and rock chipping trigger a heritage survey under the RSHA (at 2.8), nor does an RSHA ‘address community and social activities’ (at 3.12)
·The grantee party asserts that 18 mining tenements had existed over the proposed licence but ‘the Grantee Party has made a mere assertion of the grant of tenure...[and] has not provided any actual evidence of what activities occurred in the area as a result of those previous grants’ (at 2.9 and 3.13
·The grantee party is incorrect to say that the native title party has ‘not identified any areas or sites of particular significance or asserted the existence of any’ as the affidavits of Ms Long and Mr Wongawol do identify areas which are ‘really special’ or ‘important’ (at 2.12). One of these areas is Weld Spring (also called Well 9)[11]. The grantee party has stated this is almost 2 kilometres away from the northern boundary of this proposed licence. However, the native title party Response states that it is larger ‘than the physical footprint of Well 9 itself’ and that Mr Wongawol’s affidavit explains this (at 2.13 and 3.3).
·The AHA and RSHA are not sufficient to protect the proposed licence area from interference of the kind contemplated by s 237 of the Act (at 2.14-2.16)
[11] No party has clearly identified it by its DIA number, but it appears to be site ID 2126.
The native title party Response outlines, in relation to Government party evidence, that:
·The Government party stated the area had previously been subject to granted exploration licences, but no evidence was provided of the use to which those areas were put (at 3.2)
·There may be issue with the effectiveness or legal status of the Government Party’s proposed condition which ‘prevents exploration activities’ being carried out on the Canning Stock Route Reserve. That condition reads:
Consent to explore on Canning Stock Route Reserve given subject to the following:
No exploration activities being carried out on the Canning Stock Route Reserve UNN 1014[12] which restrict the use of the reserve.
[12] As outlined earlier in this determination, this does not appear to be marked on the tengraph – only UNN 1001 is marked, and the Stock Route itself (with no number in the ‘services affected’ column of the quick appraisal)
[Tribunal mapping supports the native title party’s contention that this area is in fact Unallocated Crown Land and there is no reserve for this condition to apply to. As such I will give little weight to this point in my decision.]
·The RSHA will only cover activities that are defined as ‘ground disturbing’, yet some activities can disturb the ground without being so defined (at 3.6)
·The native title party state that Mr Wongawol’s affidavit (at paragraphs 16 and 18) does outline specific ‘concerns with activities which could be carried out by the Grantee Party – and which according to the GP July Contentions are likely to be carried out – and which are likely to cause interference with sites and areas of particular significance’. They state this is contrary to the Government party’s July contention (at paragraph 23) that the statements of Mr Wongawol are general concerns, not sufficient to overcome the assumption that the grantee party will comply with the regulatory regime (at 3.7) – for example, he is concerned about explorers taking soil and walking around in the eastern part of the proposed licence.
·The Government party contentions state that the affidavits of Mr Long and Mr Wongawol ‘contain little factual information and are, in part, repetitive’. The native title party states, to the contrary, they have provided evidence that:
o Members of the native title party ‘regularly undertake the community activity of singing the jukurrpa (or ‘songlines’) which travel through the area of the Tenement, and that this activity is important’ (at 3.9 and 3.14)
o The area of Weld Springs ‘is not merely particularly significant because it was the location of a massacre, but also because the spirits of those murdered continue to reside in the area’ (at 3.9)
o ‘the jukurrpa’ which travels through the area of the Tenement touched down in the area of the Tenement and created an important source of bush tobacco’ (at 3.9), and
o ‘interference with the spirits of the murdered Martu people will result in those who cause the interference to be harmed, and as a person with ritual and cultural authority for the area, Mr Wongawol may suffer traditional punishment for failing to care for the country’, and he ‘deposes that he has previously suffered punishment in accordance with traditional law and custom for the actions of a third party who caused interference with sites of particular significance’ (at 3.10)
·The native title party rely on Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 (at [41]-[43]) to say a site can be found to be significant notwithstanding ‘a lack of precise identification by the native title party’ (at 3.20). [I note, in actuality, these paragraphs cited do not appear to support the native title party’s contention on this issue. Rather, Member O’Dea said in that matter that the specific location of sites was unclear and the evidence there did not establish sites of particular significance.]
·The Government party raised doubts as to whether the emu jukurrpa and bush turkey jukurrpa travel through the tenement (at paragraph 65 of their contentions) but the native title party states that Mr Wongawol’s evidence is clear on this (at 3.22)
·Not only do the jukurrpa exist within the proposed licence, but also evidence shows ‘there are sites and areas within the Tenement which are physical manifestations of, and continue to be inhabited by, the jukurrpa’ (at 3.23) and see also ‘Emergent’.
·In Andy Campbell it was accepted that ‘there may be sites to which interference will be caused by mere access by the inappropriate person. Mr Wongawol expresses this concern in relation to the spirits who reside within the Tenement at paragraphs 16 and 17 of his affidavit’ (at 3.24), and there is nothing within an RSHA or the AHA which would prevent that interference (at 3.26) – I note that this is dealt with earlier in paragraph [71] of this determination.

Weighing up the evidence - E69/2884

Community or social activities (s 237(a))

In relation to E69/2884, the Government party states that they accept that members of the native title party do travel through and sings songs associated with the jukurrpa and gather bush tobacco, but there is not likely to be direct interference for a number of reasons including: previous exploration activity; possible previous mining activity; and the activities can co-exist with exploration.
The native title party have referred to Banjo Wurrunmurra and Ors (Bunuba)/Western Australia/Francis Robert Salmon and Another in support of the fact that further evidence regarding community or social activities which follow song lines can be persuasive, and specifically refer to paragraph [42] of that determination, which states:
I agree that evidence of the mere existence of song lines is not enough to support a decision that the Expedited Procedure does not apply. However, where evidence is provided that the community actively follows and sings the song lines as part of a physical community or social activity, this matter supports an inference that it is likely that the activities of the grantee party will interfere with this and hence the Expedited Procedure should not apply. This activity cannot be viewed in isolation, it should be considered in the context of all of the evidence provided as to what and how often social and community activities are carried out on the proposed licence.
In the case of Silver at [35], it was determined that activities which occur off the proposed licence can be taken into account where there is a clear nexus between them and the issues being considered under s 237.
The native title party say that the activities of the grantee party will interfere with the singing of the song lines, looking after them and with the gathering of bush tobacco but do not outline how these interferences will occur exactly. The native title party have indicated that the jukurrpa tracks of the Crow, Emu and Bush Turkey cross this tenement, but do not provide information about where or in which direction. The native title party indicate that bush tobacco grows in the area of Weld Spring and I take that to mean the area identified by DIA as 2123, but it could also mean the area identified as 2126. In addition, dream time stories are mentioned which may follow or be near to the Canning Stock Route, and Well 7 and 9. Both of these wells are not near the proposed licence and the Crow jukurrpa is said to ‘come up along the stock route, following the water’. The Canning Stock Route is open to use by others, so any social and community activities associated with the stock route would already have been done in that context. Similarly, there is a pastoral lease over the remainder of the tenement (that is, all areas except the stock route it appears) and so social and community activities would have been interfered with to some extent, even on the eastern side of the stock route where the scatter site of Weld Springs (site 2123) exists.
Taking all of these factors into account, I find there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

In relation to E69/2884, Mr Wongawol is concerned about explorers taking soil and walking around in the eastern part of the proposed licence and outlines that the spirits of murdered ancestors reside in the area. Mr Wongawol deposes in this matter, and also in paragraph 13 of the affidavit from the previous matter now adopted in this matter, that he has been speared as punishment for third party interference of sites of particular significance.
The Government party states that Well 9 (Weld Spring) would not be affected by activities of the grantee party. They suggest that there is confusion between the Weld Spring and a more general area which the Government party refers to as the Weld Spring area. However, I do not find the native title party evidence wholly confusing in this respect. For example, their original objection application clearly referred to areas of significance for them including Weld Springs (site ID 2123) and Bridle Face Station (site ID 2124). Ms Long is not apparently confused in relation to Weld Spring as she states ‘tenement E69/2884 is right near Well 9, and on top of the place we call weld spring’ (emphasis added). It appears Ms Long distinguishes between the Weld Spring site at Well 9 (site 2126) which is near the tenement, and Weld Springs heritage place 2123, which is on top of the tenement. She states that there is a soak at Weld Spring. She also states that the area from Well number 6 and up to Well number 9 is significant both for men and women dreamtime stories, and I note that this path as described appears to follow roughly the Canning Stock Route and run through the centre of E69/2884.
I agree with the Government party that in relation to the Weld Spring soak (which appears to be site ID 2126, also known as Well 9) that it is unclear whether it is within or outside of the proposed licence. It does not appear on the DIA list of sites for this tenement. Nevertheless, it is very close and the exclusion zone around the site appears to be adjacent to the north east boundary of the proposed licence. The Government party accepts that this site may indeed be a site of particular significance, but does not agree that the jukurrpa are necessarily sites of particular significance. The Government party does acknowledge that there is some evidence that the Crow jukurrpa crosses through the proposed licence, but state it is unclear whether the Emu and Bush Turkey jukurrpa do so, and I agree with that. Even in relation to the Crow jukurrpa, the evidence is not so detailed and clear as that provided for E69/2677.
The Government party suggests that the Tribunal take the same approach as used in Emergent and I refer to my comments in this determination above at paragraphs [63]-[73] in relation to that contention. The Government party indicate that the grantee party is aware of the existence of the Weld Spring site (presumably site 2126) and the Weld Springs area (presumably the larger site 2123) and also that the AHA is likely to prevent interference.
The native title party also refers to Weld Spring as the site of the massacre of ancestors (presumably as also referred to in the CD, which is identified as site 2126 and which is the site adjacent to but not apparently directly on the proposed licence). However, the Weld Spring site, known as 2126, is sufficiently identified so as the grantee party is on notice of its existence, it appears it is not actually on the proposed licence, and rather is on a Park or Reserve, and as such I am confident that interference with that site would be unlikely.
In relation to site 2123 Weld Springs, the DIA record indicates it is a scatter site and as previously stated, it appears to take up approximately 50 per cent of the tenement. However, I do not believe there is sufficient evidence to say it is a site of particular significance. For example, it is not clear exactly where the native title party assert the spirit of their ancestors reside.
Overall, I find there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.

Determination

The determination of the Tribunal is that the grant of exploration licence E69/2677 to the Marford Group Pty Ltd is not an act attracting the expedited procedure.

The Tribunal also determines that the act, namely the grant of the exploration licence E69/2884 to Marford Group Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member
6 November 2012