Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another
[2020] NNTTA 52
•9 July 2020
NATIONAL NATIVE TITLE TRIBUNAL
Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 52 (9 July 2020)
Application No: | WO2019/0697 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wintawari Guruma Aboriginal Corporation (WCD2007/001)
(native title party)
- and -
Yandan Gold Mines Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Helen Shurven, Member |
Place: | Perth |
Date: | 9 July 2020 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993(Cth) ss 29, 31, 32, 151, 237 Mining Act 1978 (WA) s 58 |
Cases Cited: | Delores Cheinmora v Striker Resources NL & Ors; Jack Dann v Western Australia [1996] FCA 1147 (Cheinmora v Striker Resources) Hughes (on behalf of the Eastern Guruma People) v State of Western Australia[2007] FCA 365 (Hughes v Western Australia) Kevin Allen and Others (Nyamal #1) v Bushwin Pty Ltd and Another [2019] NNTTA 75 (Nyamal #1 v Bushwin) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal # 1 v Gianni) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18 (Silver v Northern Territory) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (Tjiwarl v Gianni) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (Walley v Western Australia) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452; (Ward v Western Australia) Wintawari Guruma Aboriginal Corporation RTNBC v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 7 (Wintawari Guruma v Yandan Gold Mines) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Melissa Settineri, Corrs Chambers Westgarth Aaron Rayner, Wintawari Guruma Aboriginal Corporation |
| Representative of the grantee party: | Jennifer Johnson, Hetherington Exploration & Mining Title Services |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation and Safety Jeff O’Halloran, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of their intention to grant exploration licence E47/3898 (the licence) to Yandan Gold Mines Pty Ltd (Yandan). The licence is approximately 458 kilometres square, and is 32 kilometres north-westerly of Tom Price. In their notice, the State assert the grant is an act attracting the expedited procedure, by including an expedited procedure statement (see s 32 of the Act). All legislative references in this determination are to the Act, unless specified otherwise.
By including the expedited procedure statement, the State assert the normal s 31 negotiation process between the State, Yandan and any native title party is not required. They assert the grant of the licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned (s 237(c)).
The Wintawari Guruma Aboriginal Corporation (WGAC) are a native title party in this inquiry because they hold native title in trust for the Eastern Guruma people over 99.6 per cent of the licence (see Hughes v Western Australia). WGAC lodged an objection application with the National Native Title Tribunal (the Tribunal) in response to the State’s assertion that the expedited procedure applies to the grant of the licence. WGAC argue the expedited procedure should not apply because the grant will likely cause the interference noted in sections 237(a) and (b) and therefore, the normal s 31 negotiations should occur.
Having been appointed to determine this matter, a Tribunal member must look at what is likely to result from the grant of the licence and decide whether there is material to support a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). I must have regard to the rights conferred by the grant, the nature of the proposed grant and the applicable regulatory regime (see Walley v Western Australia).
I have considered the substantial amount of evidence and information provided by the parties and, based on that material, I have concluded the expedited procedure does not apply.
Preliminary Matters
Parties’ submissions
WGAC provided contentions and reply contentions. In addition, they provided:
·A signed statement by Mr Dennis Hicks Senior. Mr Hicks Snr states he is a WGAC director and a senior Eastern Guruma law/lore man. He states he has cultural authority because ‘I learned the lore and culture from my father and my uncle … who was one of the main Guruma lore bosses’ and as such Eastern Guruma people defer to his knowledge about the licence area (at 10-13). I accept his cultural authority to speak for the area on behalf of Eastern Guruma people.
·A signed statement by Dr Kathryn Przywolnik, including annexures of photographs, mapping and historical research on rock art. Dr Przywolnik states she is an archaeologist and cultural heritage specialist, a former Registrar of Aboriginal Sites under the Aboriginal Heritage Act 1972 (WA) (AHA), and is now employed by WGAC as the Heritage Manager responsible for undertaking field work, conducting research and preparing cultural heritage and archaeological reports as instructed. Dr Przywolnik’s evidence is based on two field trips to the licence area, one in 2017 and one in 2020, including visits to sites included in Mr Hicks Snr’s evidence for this inquiry. I accept Dr Przywolnik’s evidence on that basis.
·A signed statement and an affidavit by Mr Aaron Rayner. Mr Rayner states he is employed by WGAC as the Native Title Manager to manage future acts, negotiate heritage agreements with land users, provide advice to Eastern Guruma elders and the Board, and document sites of significance under Eastern Guruma traditions. I accept Mr Rayner’s evidence on that basis.
The State provided contentions, annexures and accompanying materials including mapping, a quick appraisal outlining the underlying tenure, and searches of the Aboriginal Heritage and Inquiry System (AHIS) for sites and areas recorded under the AHA. The State also include their proposed draft conditions and endorsements for the licence, including indicating they intend to impose a condition requiring Yandan to enter into a Regional Standard Heritage Agreement (RSHA) with WGAC, should WGAC request such condition within 90 days of grant. The State also included the statement Yandan provided to accompany the licence application, (the ‘s 58 statement’, as per s 58 of the Mining Act 1978 (WA)), which outlines a summary of activities Yandan intend to undertake on grant.
Yandan provided a statement of contentions prepared by Mr David Hamlyn, General Manager – Exploration at DGO Gold Limited. Yandan’s s 58 statement outlines that Yandan are a wholly owned subsidiary of DGO Gold Limited.
Submissions on whether or not parties were able to reach agreement
As noted above, the scope of the Tribunal’s inquiry into the expedited procedure is outlined in s 237. Much of the material in Yandan’s contentions and WGAC’s reply focuses on attempts to resolve the objection via agreement, and on concerns about their respective obligations to negotiate. While I have considered this material, it is not particularly helpful in assisting me draw conclusions in relation to the question which I must answer for the purposes of an expedited procedure inquiry. In considering s 237(a), the Tribunal outlined the issue as follows (see Yindjibarndi v FMG at [72] (emphasis in original)):
The question is, should the right to negotiate apply because of the likely effect the exploration activities will have on the community and social activities of the Yindjibarndi People. If the community and social activities of the Yindjibarndi People are likely to be interfered with directly by the grant of the exploration tenement and exploration activities, the consequences are that the right to negotiate will apply; the corollary is that it will not apply if the grant and exploration activities are not likely to so interfere.
This reasoning also applies in respect of the criteria outlined in s 237(b) and s 237(c), and I adopt that reasoning for the purposes of this inquiry.
Is the determination to be made on the papers?
The directions provided the opportunity for parties to submit an agreed statement of facts and to attend a hearing, should one be necessary. The parties sought leave to vacate the agreed statement direction, and submitted they were content for the inquiry to proceed on the papers without a hearing. I consider the issues for determination can be adequately determined on the papers (as per s 151(2)).
The s 237 predictive assessment
Silver v Northern Territory (at [21]) is often referred to in expedited procedure inquiries, as it provides a concise summary of the predictive assessment I am required to make (emphasis in original):
…section 237 requires the Tribunal to make a predictive assessment about the likelihood of the act in question having any of the consequences outlined in paragraphs (a) – (c) set out above. The proper approach to the application of section 237 was explained by French J in Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442. His Honour pointed out (at 450): "The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement." … [T]his approach was also endorsed by R D Nicholson J in Little v Western Australia [2001] FCA 1706 at [69].
WGAC do not submit contentions or evidence regarding s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. As such, I focus this inquiry on s 237(a) and s 237(b). Because the evidence in relation to these two limbs of s 237 is inextricably linked in this inquiry, I first address the issue of whether there are sites of particular significance and any interference to those sites. I then move on to consider the social and community activities of the native title party, in the context of the sites and areas.
Yandan’s proposed exploration activities and intentions
The s 58 statement provided with Yandan’s licence application to the State outlines that they are targeting certain metals, and that their activities intend to include:
·collation of previous exploration data plus all available multi-client geophysical data for the area,
·a detailed, on ground geological mapping programme, inclusive of surface sampling,
·a low level high resolution airborne magnetic survey or a high resolution ground magnetic survey may be required to assist in stratigraphic and structural mapping of the exploration licence area, and
·targets generated from the geological mapping and geophysics will be subjected to detailed assessment which may lead to drill testing to determine the presence of potential mineralisation.
This information is also confirmed in Yandan’s contentions, in which they include mapping showing a target zone which includes approximately half of the licence, and which extends over adjacent previously granted tenements. It appears that Yandan has a joint venture and/or a farm-in relationship with previous explorers on those previously granted tenements.
Yandan contentions outline the type of exploration they intend to undertake is a modified version of what previous explorers have undertaken, which they say included ‘ground exploration including low impact mapping, soil sampling and rock chip sampling and ground disturbing drilling activities’ over the licence (E47/3898) and the adjacent tenements (at 21). They state their modified program is likely to include three stages, over a two year period (at 23):
a. Airborne electromagnet/magnetic survey over the Target Zone to identify specific conductive targets for follow up work - this program has no surface impact.
b. Depending on outcomes of (a) soil sampling and ground electromagnetic survey over small areas of elevated conductivity identified from the airborne survey – this is low impact and carried out over small areas, typically one square kilometre.
c. Depending on results of (b) reverse circulation and diamond drilling on priority coincident geochemical and conductive anomalies – ground disturbing activities limited to a few specific drill sites measuring 25m by 25m.(b) and (c) programs would be subject to heritage clearances by WGAC.
Section 237(b) – likelihood of interference with sites or areas of particular significance
The assessment of s 237(b) is whether or not there are areas or sites of ‘particular significance’ – meaning areas or sites of special or more than ordinary significance to the native title holders in accordance with their traditions (Cheinmora v Striker Resources at 34–35). If an area or site is of particular significance, it must be known and able to be located, and the nature of its significance explained (Silver v Northern Territory at [91]). Given the nature of WGAC’s material, it seems more appropriate to deal with s 237(b) first. This is because WGAC’s material strongly links community and social activities with the sites and areas that they argue are of particular significance to Eastern Guruma traditions.
What sites or areas are identified in the material?
WGAC’s material identifies the following sites and areas:
· Pawarturrnha (Stinkin Pool)
· Yartimitangkanha (Pool)
· Balganjina (Little Well)
· Kaanti
· Wakkulinha Spring
· Mirruwuthanha (White Quartz Culture Camp)
· Parts of a dreaming track (which is named and explained)
· Bunginah Spring
The statements of Mr Hicks Snr and Dr Przywolnik attach mapping which show the locations of each of the above. All are within the area of the licence. Much information is provided about each area, however, I have only outlined that which is sufficient to explain my reasons in this decision, as it is apparent the areas have cultural sensitivities which I do not need to repeat here.
I have considered the target zone Yandan describe, which will be the focus of their exploration activities, and compared it with mapping provided by WGAC and the State. It is reasonable to conclude that, with the exception of Bunginah Spring and the dreaming track near Bunginah Spring, all of the sites and areas listed above are within the target zone or at the edge of the target zone. The dreaming track near Bunginah Spring may extend into the target zone, although it is difficult to conclude that with any certainty based on the available evidence.
Are any of the identified sites or areas of ‘particular significance’ under s 237(b)?
Mr Hicks Snr describes the sites and areas (as listed at [18] above), providing detail and information about each one. As noted earlier in this decision, I provide only sufficient detail in these reasons to support my conclusions. The State accept that all of the sites and areas, with the exception of Yartimitangkanha and White Quartz Camp, are sites of particular significance.
Pawarturrnha (Stinkin Pool)
Mr Hicks Snr refers to a dreamtime being who ‘made the drawings on all the rocks in our country … showing us the animals, where to go and get them and … our cultural practices’ (at 20-21). Dr Przywolnik estimates the rock art to be at least 20,000 years old (at 80-81). Mr Hicks Snr states some areas are restricted to men only because the rocks ‘show some of our ritual practices … and have secret songs. We call them Wartipa’ (at 69). Mr Hicks Snr states the ‘old people’ took him to this area and that he and other Eastern Guruma men ‘have continued to go there to show our young people’ because they ‘are responsible for taking the young Guruma men through the lore at this site’ (at 66-69).
Yartimitangkanha
Mr Hicks Snr describes this area as ‘an important place’ of historical and continued cultural importance, used for generations ‘because of the freshwater and all the bush tucker and medicine in that area’ and as evidenced by ‘the hundreds of cultural artefacts still these such as grinding stones, spear heads and axes’. It is ‘a major ngurra (camping) place where we stay before going to Stinkin Pool’ and the ‘old people would have stayed here before going to Stinkin Pool too’ (at 38-41, 48).
Balganjina (Little Well)
Mr Hicks Snr states ‘Balganjina is a lore ground. The lore is still in that ground’. He states it is ‘an important place to the Eastern Guruma people because we continue to practice our culture there and have done so forever. The traditions associated with this place are secret and for men only. We call that yurlawatyi’ (at 51-53). He states his uncle ‘first took me to that place in the late 1970s and I’ve been going back every year since then and now take our young men to take them through Guruma lore’ (at 56).
Kaanti
Mr Hicks Snr describes (at 82-86) this site as ‘very important to us’. He describes ‘two images on the rocks’ which ‘depict the ancestors and creative beings looking after it [Kanti]’. He states the site ‘is where we get a special black rock for making implements for lore and other cultural business.’ The evidence is the area is unique: ‘As far as I know it is the only place in Eastern Guruma country where you can get this rock’. The importance of the area is also explained by the ‘large water pool with hundreds of cultural artefacts’.
Wakkulinha Spring
Mr Hicks Snr states (at 90-94) the ‘water is always there because it’s a spring’ and he refers to a dreamtime being (distinct from the dreamtime beings associated with the dreaming track near Bunginah Spring) who ‘is there all the time’ and depicted in the rock engravings at the site. He briefly describes this as a creative being who ‘made all the water in our country’. He also describes the protocol ‘to let him know I am an Eastern Guruma initiated man and that I can be there’.
Dr Przywolnik’s evidence is supportive. She states ‘I have had many conversations with Eastern Guruma Traditional Owners about how important the place is’ (at 88). She observed rock art engravings at the site ‘in the order of thousands of years’ and ‘a large quantity of stone artefacts and grinding stones’ (at 90-92).
Mirruwuthanha (White Quartz Culture Camp)
Mr Hicks Snr describes the area (at 101) as an important camp, meeting place and corroboree ground established by two Guruma lore bosses on an area ‘we have used for generations’ (at 108). He describes the area as important for teaching law and culture and it is ‘used all the time’ ‘every week of the year’ (at 106-107). Dr Przywolnik provides supportive evidence: ‘it is a frequent topic of conversation with Eastern Guruma people because it is such a culturally significant and well known site’ (at 101).
The dreaming
Mr Hicks Snr describes in great detail the story of ‘powerful’ dreamtime beings, what they are and how they transformed themselves in their travels across the land, which includes part of the licence and the target zone (at 22-31). On the attached mapping, Mr Hicks Snr marks the ‘general path’ through the south-eastern corner of the licence, and also gives directions and geographical locations for the greater part of the dreaming. The story involves the creation of fire and dry land (at 28).
Bunginah Spring
Mr Hicks Snr states the permanent and deep water at Bunginah Spring was created by a dreamtime being who ‘kept going back’ to the spring to get water to put out the fire that another dreamtime being sought to spread on the land (at 31). He describes Bunginah Spring as ‘a powerful place’ for Eastern Guruma people ‘because the sprits are always there’ and there is ‘always water’ (at 32). He notes the ‘old people spent a lot of time there as can be seen by the hundreds of artefacts including spear heads, grinding stones and blades’ (at 33).
Conclusion
Given the level of detail provided about each of the above places, and particularly the information about the traditions of the Eastern Guruma people in relation to these places I accept each of the places listed at [18] above are sites or areas of particular significance.
Is interference with any of the sites or areas of particular significance likely?
There is no evidence that Yandan intend to limit the full suite of rights available to them under the Mining Act 1978 (WA), although it is reasonable to assume from the evidence Yandan provide that their main activities will be focused on the identified target zone. In relation to their impact on sites or areas of particular significance, Yandan contentions say (at 20) ‘The target area is removed from and does not impact many of the Registered Heritage Sites’ under the AHA. However, none of the sites or areas of particular significance noted above appear to be Registered Heritage Sites. In addition, interference with one site of particular significance is sufficient to conclude the expedited procedure should not apply.
Yandan state ‘the Company is committed to work with the Eastern Guruma People to protect… [sites identified by WGAC]… and it has demonstrated a willingness to engage with and to negotiate a Heritage Agreement’ (at 27). Yandan state the low impact exploration at stage (b) (as outlined at [16] above) ‘would be subject to heritage clearances by WGAC’. However, no mechanism is described for such engagement, discussion and clearances if the expedited procedure were to apply.
At the very least, it is not clear how Yandan will access the target zone. For example, Dr Przywolnik states (at 115-116) that ‘the Grantee Party's exploration goals [according to their evidence] will be achieved by initiating "a low level high resolution airborne magnetic survey or a high resolution ground magnetic survey". Where airborne magnetic and gravity surveys necessitate the repeated landing of helicopters on country, the landing can easily and inadvertently enter into areas that are culturally sensitive and prohibited’. The WGAC reply (at 11), summarises the type of interference which could occur around the sites as ‘by physical presence, noise and other disturbance’. The reply goes on to reiterate (at 12) the evidence provided by Mr Hicks Snr and Dr Przywolnik that ‘Even inadvertent contact by outsiders with special sites, in the absence of an Eastern Guruma Elder, could constitute significant disturbance of such a site in accordance with the Eastern Guruma lore and custom’.
The State intends to impose a condition requiring Yandan to enter into a RSHA with WGAC should they request it within 90 days of grant (at 14). The condition to be imposed is as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by the Wintawari Guruma Aboriginal Corporation RNTBC the registered native title body corporate in respect of the Eastern Guruma determination area (the "native title party"), such request being sent by pre-paid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA") nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement"
WGAC indicate they do not accept RSHAs as providing sufficient heritage protection for sites of particular significance. The RSHAs listed in the condition do not require surveys or clearances for low impact activities such as soil sampling, apart from the Goldfields Land and Sea Council Agreement which requires parties to ‘consult’ with each other to decide which areas require a survey. However, the term ‘consult’ isn’t precise, nor are other terms in the RSHAs, such as ‘take into account’, ‘significantly affect’ and ‘discuss’ (see commentary on these in Marputu v Gianni at [66]; Nyamal #1 v Gianni at [66]-[68]; Nyamal #1 v Bushwin at [24]-[25]).
Yandan state that interference with the sites and activities on those sites ‘can be avoided’ because these can be ‘noted for avoidance’ (at 24-26). The State contends there is little likelihood of interference because as well as the protections provided by the State’s regulatory regime, including the AHA, ‘it would be easy for the Grantee Party to avoid the sites of special significance, especially if there is ongoing communication with the Native Title Party, as the Grantee Party is clearly willing to do’ (at 65). However, once again, neither Yandan or the State describe a mechanism in place for that communication if the expedited procedure were to apply, or how the AHA or the proposed endorsements or conditions to be applied on grant would provide protection to these sites or areas. Yandan’s unenforceable good intentions and willingness, based upon what they believe are WGAC’s concerns, are no substitute for the statutory obligation to negotiate in good faith with a view to reaching agreement with WGAC about the grant (Tjiwarl v Gianni at [106]; Nyamal #1 v Gianni at [61]).
Where a native title party’s evidence about interference with sites is broad and unspecific and where they express a general desire for consultation, then an RSHA condition, the AHA and a grantee party’s intentions might be sufficient to conclude interference is unlikely. However, these are not sufficient where the evidence raises specific concerns about interference under a native title party’s traditions. This is such a matter.
The WGAC reply (at 54-56) summarises the issue in relation to the application of the AHA framework to the concept of interference in relation to s 237(b):
The GVP [Government Party/State] contends that section 17 of the Aboriginal Heritage Act 1972 (WA) provides adequate protection because it makes it an offence to damage or in any way alter any Aboriginal site, and also an offence to in any way damage, remove or deal with in a manner not sanctioned by relevant custom any object on or under an Aboriginal site.
The GVP says that the GP [grantee party/Yandan] cannot undertake activities that the NTP says will interfere with Bunginah Spring, Kaanti, Stinkin Pool (Pawarturrnha), Yartimitangkanha and Little Well (Balganjina) because they are “activities that the Grantee Party could not undertake without committing an offence” under the Aboriginal Heritage Act 1972 (WA)
An offence under the Aboriginal Heritage Act 1972 (WA) is only caused if physical interference with the Aboriginal site occurs. This is a more limited concept than ‘interference’ under section 237(b) of the Native Title Act 1993 (Cth).
The State argues (at 6-9) that previous grants would have already caused interference to the area. However, no evidence is provided as to the nature of such interference, and in any event, the Tribunal has held in many previous inquiries that prior interference does not necessarily mean further interference is not interference for the purposes of s 237(b). WGAC asserts the weakness in the State’s argument in their reply (at 42-43).
As well as my overall comments about interference in the context of this inquiry, I outline my findings for each of the sites and the likelihood of interference.
Pawarturrnha (Stinkin Pool)
Mr Hicks Snr refers to the rituals that senior men must do before they visit the area (at 70) and the importance of protecting the area from people ‘walking around this site, taking photographs or sitting on rocks’ without permission (at 74). Mr Hicks Snr states that ‘As a male elder I am responsible for the cultural maintenance of this place and I would get sick or face cultural payback from others if the site is not maintained properly’ because the correct protocols are not observed (at 75). There is evidence that Eastern Guruma people believe that the area is spiritually dangerous for women and for uninitiated men who enter without guidance from initiated men.
Dr Przywolnik states she was not allowed to go further than 300 metres into the site because the four Eastern Guruma men ‘were concerned for my spiritual welfare’ (at 48) and from her conversations with these men, she observed their ‘genuine fears for the safety of people who walk through a site like this without guidance’ (at 58). Mr Hicks Snr states ‘I hear Eastern Guruma people talk about their fear all the time. The types of repercussions are that people could get sick or they could get “grabbed” the next time they go out on country. By “grabbed” I mean that a spirit comes to when you are asleep’ (at 79-80).
Dr Przywolnik notes ‘In the 300 metres that I walked into this site, I counted 200 engraved motifs … In my experience, this is unusually dense for rock art’ (at 59). She states ‘some of the rock art and artefacts are so hidden or undetectable to the untrained eye that someone who is not a specialist or an Eastern Guruma person … would not necessarily understand or recognise the rock art or its cultural significance’ (at 19). Dr Przywolnik’s description of the rock art included ‘small panels close to the ground, and not immediately visible’ and she states ‘I suspect, based on my knowledge and research, that this was a deliberate measure by the Eastern Guruma person who made the engraving, in order to give the engraving a sense of privacy or secrecy’ (at 54). Dr Przywolnik notes ‘unless you were a person who knew where to look for this rock art, you would not see it. In other words, you could walk straight past it without having any appreciation of the significance’ (at 56). Most usefully, Dr Przywolnik attaches photos which shows ‘the rock art is not easily visible to the untrained eye’ and ‘are indistinct and heavily weathered from many thousands of years of exposure’ (at 62-63).
I am satisfied that, given the sensitivities associated with the area in Eastern Guruma traditions, it is likely that exploration activities on or near Pawarturrnha (Stinkin Pool) will cause interference for the purposes of s 237(b).
Yartimitangkanha
Mr Hicks Snr (at 43) states Yartimitangkanha ‘is a difficult place to get to so has not been damaged by people or mining companies’. Mr Hicks Snr states he and three other named Eastern Guruma elders ‘want to keep it that way’. He refers to discussions with these three elders, and with other Eastern Guruma people ‘that they do not want explorers coming through this site and picking up the rocks (our artefacts) or taking water samples’. Dr Przywolnik notes in relation to Yartimitangkanha the site has an ‘abundance of stone artefacts’ (at 85). Speaking in general terms about stone artefacts, Dr Przywolnik states ‘To the untrained eye, a stone artefact might merely look like a rock or a stone. You really would have to know what you’re looking for, otherwise you could step over or walk straight past them’ (42). Mr Hicks Snr (throughout paragraphs 40-48) refers to the rituals that need to be performed ‘each time people go there’ and that ‘If you go there without performing the ritual you’re not doing things the right way’ according to Eastern Guruma tradition.
I am satisfied that, given the sensitivities associated with the area in the context of Eastern Guruma traditions, it is likely that exploration activities on or near Yartimitangkanha will cause interference for the purposes of s 237(b).
Kaanti
The evidence is there are rock engravings and ‘hundreds of cultural artefacts’ (Mr Hicks Snr at 85). As with, Yartimitangkanha, Mr Hicks Snr expresses concern about ‘explorers going in here and taking these rocks and messing about with the water’ (at 87). And, like Pawarturrnha (Stinkin Pool), there is the concern that the ‘rock engravings are very faint, and they might get damaged if the explorers don’t know where they are or take a rock chip from them’ (at 88). I am satisfied that exploration activities on or near Kaanti will cause interference for the purposes of s 237(b).
Balganjina (Little Well)
Mr Hicks Snr explains (at 60) that Eastern Guruma traditions ‘do not allow women going to this place’ and ‘Only initiated Eastern Guruma men can go to this area and they must go with any uninitiated men’. He explains that unsanctioned entry would result in ‘damage’ to the lore ground, ‘Other elders and I would get punished by other Eastern Guruma people if that happened’ (at 60-61). There is evidence that under Eastern Guruma traditions, the area is dangerous even to outsiders. Dr Przywolnik states ‘I only saw a small part of the site … The Eastern Guruma men did not want me to spiritually endanger myself by going beyond the “safe” area’ (at 98).
I am satisfied that, given the sensitivities associated with the area under Eastern Guruma traditions, it is likely that exploration activities on or near Balganjina (Little Well) will cause interference for the purposes of s 237(b).
Wakkulinha Spring
Like other sites in this inquiry, this site contains rock art and artefacts. Mr Hicks Snr states ‘As an Eastern Guruma Elder, I am responsible that this place doesn’t get mucked about with … we believe that we will get physically hurt if people muck about with these places’ (at 96-97).
I am satisfied that, given the sensitivities associated with the area in Eastern Guruma traditions, it is likely that exploration activities on or near the Spring will cause interference for the purposes of s 237(b).
Mirruwuthanha (White Quartz Culture Camp)
Mr Hicks Snr describes the teaching and cultural practices that occur under Eastern Guruma traditions at this important camp. He states ‘Because of the frequency and nature of how we use White Quartz, having explorers visit the site would disrupt what the Eastern Guruma people do there and … [they] would find it invasive if people were to drive or wander through the place’ (at 110). I am satisfied this is interference in accordance with Eastern Guruma traditions per s 237(b).
The dreaming/ Bunginah Spring
In his statement, Mr Hicks Snr’s description of the dreamtime story places importance on the waterholes, rather than the path or track that the dreamtime beings travelled along: ‘the land is all dry there now and the water holes are important’ (at 29).
Mr Hicks Snr describes the rituals for entering Bunginah Spring ‘to keep us safe’ and explains that physically it ‘is intact and has never been damaged. We want to keep it that way.’ He refers to the same concerns that he and Eastern Guruma people have about collecting rock samples which may be their artefacts (at 34 and 36).
It is not clear the extent to which the dreaming path itself extends into the target zone. In addition, Bunginah Spring, which is associated with the dreaming path, is approximately 5 kilometres from Yandan’s target zone. I cannot conclude, based on the available evidence, that interference with the dreaming path or Bunginah Spring is likely.
Section 237(a) – likelihood of interference with community or social activities
I deal with each of the community and social activities outlined in the evidence, in the context of the sites and areas which I have determined are sites and areas of particular significance. I have also taken into account the sensitivity of some of the activities, including the gender specific and secret nature of those that occur at Pawarturrnha (Stinkin Pool) and Balganjina (Little Well).
The State argue (at 29) that Yandan can avoid areas where social and community activities occur, and that the State’s regulatory regime will be sufficient to avoid interference. However, my comments earlier in this decision in relation to these arguments as applied to s 237(b), also apply to my consideration of s 237(a) (see [32]-[40]).
The State contentions express (at 22, for example) uncertainty about the frequency of the activities conducted at sites or areas, saying the State cannot be certain whether all the activities referred to would be conducted at the stated frequencies. However, I accept that given the nature of the sites and areas of particular significance within the licence, and their connection to the traditions of the Eastern Guruma people, the social and community activities associated with those sites occur with the frequency stated by Mr Hicks Snr. There is nothing in the evidence which would suggest otherwise, and the statement of Dr Przywolnik is consistent with that provided by Mr Hicks Snr.
For the reasons outlined below, apart from Wakkulinha Spring and Bunginah Spring, I conclude that given the frequency and intensity of social and community activities in each of the areas, they are likely to suffer from interference from exploration activities of Yandan.
Pawarturrnha (Stinkin Pool)
The evidence is that this area is frequently used ‘for taking the young Guruma men through the lore’ which occurs ‘about 10-15 times a year’. Mr Hicks Snr broadly refers to ‘secret Warpita songs,’ ‘secret stories’ and ‘cultural practices’ that are taught to the young men to ‘make sure the site is maintained in a cultural way’ (at 67-73).
Yartimitangkanha
Mr Hicks Snr states ‘I still come here 4 or 5 times a year to camp, hunt, tell stories, teach our young people, and look after the place’. He states ‘I know that other Eastern Guruma people visit here too, in particular when they’re going to Stinkin Pool’ (at 42). He later notes this site as one of the places being visited ‘at least fifteen to twenty times per year, sometimes more’ as part of lore and cultural teaching (at 109).
Balganjina (Little Well)
Mr Hicks Snr states ‘we continue to practice our culture there and have done so forever. The traditions associated with this place are secret and for men only’. He states ‘I still visit Balganjina with Eastern Guruma men. I also know that other Eastern Guruma people visit this site’ (at 53-54). Because this is used ‘to teach them lore’ he refers to this site as being visited ‘at least fifteen to twenty times per year, sometimes more’ (at 109).
Kaanti
The evidence is the area is used ‘about 10-15 times a year’ and ‘is where we get a special black rock for making implements for lore and other cultural business’. This area is unique: ‘As far as I know it is the only place in Eastern Guruma country where you can get this rock. It is very fine and makes very sharp edges’ (at 82-84).
Mirruwuthanha (White Quartz Culture Camp)
The evidence is that there is a shelter built there with a corroboree ground in front of the shelter, and this area is used continuously and intensively by Eastern Guruma people ‘all the time’ and ‘every week of the year’. It is used to store and make cultural artefacts, perform ceremonies, hold meetings with neighbouring groups and to teach young people Eastern Guruma traditions (at 105-107). Mr Hicks Snr states ‘Because of the frequency and nature of how we use White Quartz, having explorers visit the site would disrupt what the Eastern Guruma people do there and … [they] would find it invasive if people were to drive or wander through the place’ (at 110).
Wakkulinha Spring
Mr Hicks Snr refers to going to this place (at 92 and 95) and the various artefacts which are there, however, there is no evidence of community or social activities in relation to this area.
Bunginah Spring
Mr Hicks Snr states Eastern Guruma people ‘go to this place frequently for social reasons like meeting, camping and to practice culture. I go there about 5 or 6 times a year but I know that other Eastern Guruma people go there too at different times during the year, I have family members that go there about 5 or 6 times a year’ (at 35).
Given Bunginah Spring is located in the south-easternmost corner of the licence, and away from Yandan’s target zone, interference with Bunginah Spring appears unlikely.
Determination
The grant of exploration licence E47/3898 to Yandan Gold Mines Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
9 July 2020
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