Yindjibarndi Aboriginal Corporation/Croyden Gold Pty Ltd
[2013] NNTTA 71
•20 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
Yindjibarndi Aboriginal Corporation/Croyden Gold Pty Ltd, [2013] NNTTA 71 (20 June 2013)
Application Nos: WO2011/701, WO2011/703, WO2011/704, WO2011/705
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Yindjibarndi Aboriginal Corporation (WC1999/014) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Croyden Gold 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: 19 June 2013Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted – expedited procedure not attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237
Aboriginal Heritage Act 1972 (WA)
Aboriginal Affairs Planning Authority Act1972 (WA)
Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’)
Cheedy on behalf of the Yindjibarndi People v WA [2010] FCA 690 (‘Cheedy’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora’)
Daniel v WA [2005] FCA 536 ('Daniel')
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Moses v State of Western Australia (2007) 160 FCR 148 ('Moses')
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
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)
Wanjina/Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (‘Braeburn Resources’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Asia Investment Corporation’)
Representatives of the Mr George Irving, Yindjibarndi Aboriginal Corporation
native title party Ms Christina Araujo, Yindjibarndi Aboriginal Corporation
Mr Simon Millman, Slater & Gordon Lawyers
Representatives of the Mr Rod Whall, State Solicitor’s Office
Government party Ms Adelaide Follington, Department of Mines and Petroleum
Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Greg Abbott, M&M Walter Consulting
grantee partyREASONS FOR DETERMINATION
[1] On 26 January 2011, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) to Croyden Gold Pty Ltd (‘the grantee party’):
Proposed licence
Overlap between proposed licence and native title party determination
Approximate size of proposed licence (km2)
Proportion that native title does exist in proposed licence
E47/2422
94.21%
223.11
67%
E47/2424
42.42%
222.97
0.16%
E47/2425
98.98%
636.49
75%
E47/2426
77.08%
419.98
22%
The Government party included in the notice a statement that it considered the grants attracted the expedited procedure (that is, the grants could be done without the normal negotiations required by s 31 of the Act). The notice also included E47/2423, but the Tribunal noted that native title did not exist within that licence. As such, the Tribunal had no jurisdiction to deal with the objection against that licence (see s 77 of the Act).
[2] On 26 May 2011, an objection application against each proposed licence was lodged with the Tribunal by the Yindjibarndi Aboriginal Corporation on behalf of the Yindjibarndi People (‘the native title party’). The native title party is a registered body corporate under the Act, and holds determined native title rights and interests in trust for the Yindjibarndi People (as outlined in Daniel). The determination overlaps the proposed licences in the proportions outlined in the table above. I note that the decision in Daniel had the effect of extinguishing native title in parts of each of these proposed licences, leaving the proportions remaining as outlined in the table above.
[3] The registered native title claim of the Kariyarra People (WC99/3) also overlaps E47/2024-2026, but no objections were made by this claim group against the expedited procedure statement.
[4] In accordance with standard practice at the time, the Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allowed a period, after the closing date for lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent.
[5] Parties attempted to reach agreement, and the matter was also delayed due to a number of factors including a change of native title party representative, law business, and a cyclone. However, it became apparent that agreement was not possible and the matter was referred to inquiry.
[6] I was appointed by the then President, Mr Graeme Neate, on 19 December 2012 as the member for the purpose of conducting the inquiry.
[7] Following various extensions of time to the native title party and the Government party regarding submissions, the native title party requested a listing hearing to seek ‘the opportunity to provide a response to the contentions of the Grantee party and the State’. At the hearing on 22 April 2013, the native title party requested leave to adduce evidence about the defects of the Regional Standard Heritage Agreement (‘RSHA’), but having considered the information already provided, and the general nature of the evidence proposed to be further lead, leave was not granted. Parties confirmed they had no objection to the matter proceeding to be determined on the papers.
[8] The following information and evidence was provided in relation to each of the proposed licences:
·materials from DMP on 2 October 2012, including: reports and plans from the Department of Indigenous Affairs (DIA) Sites Register; copies of the tenement applications; and Tengraph quick appraisals.
·contentions and evidence of the native title party dated 11 March 2013, including: maps and tenement register information; affidavit of Mr Michael Woodley together with attachments, sworn 11 March 2013 (also provided on compact disc); affidavit of Mr Ned Cheedy sworn 7 April 2010
·a letter from the grantee party dated 15 March 2013
·contentions of the Government party dated 3 April 2013, including maps and annexures
[9] A map was also generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 23 April 2013 for comment. No party commented.
Legal principles
[10] Section 237 of the Act provides:
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.
[11] In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
[12] In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
[13] In relation to determining s 237(a), I adopt the following principles from Tarlpa:
· 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]).
[14] With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also 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).
[15] The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters, on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).
Evidence in Relation to the Proposed Acts
Government Party
[16] Government party documentation establishes the following information:
| E47/2422 | E47/2424 | E47/2425 | E47/2426 | |
| Significant Underlying Land Tenure | · Reserve-Conservation of flora and fauna (CR31429) (27%) · Reserve-Use and benefit of Aborigines (CR31427) (5.8%) · Historical Lease H394/801 (16.1%) · Pastoral lease 3114/1209 (Mallina) (67%) · One exploration licence (4.7% now surrendered) · Seven mineral licences granted between 1971 and 1989 (from 0.1%-0.5% all now surrendered) | · Reserve-Conservation of flora and fauna (CR31429) (42.1%) · Reserve-Use and benefit of Aborigines (CR31427) (57.3%) · Historical Lease H394/802 (0.1%) · Historical Lease H394/677 (0.9%) · Pastoral lease 3114/1173 (Hooley) (0.2%) | · Reserve-Conservation of flora and fauna (CR31429) (21.1%) · Reserve-Use and benefit of Aborigines (CR31427) (1%) · Historical Lease H394/592 (7.4%) · Historical Lease H394/432 (2.7%) · Pastoral lease 3114/1173 (Hooley) (14.4%) · Pastoral lease 3114/1209 (Mallina) (36.6%) · Pastoral lease 3114/465 (Mt Florance) (2.3%) · Two prospecting licences granted in the 1960’s and now expired at less than 1% each | · Reserve-Conservation of flora and fauna (CR31429) (55.1%) · Reserve-Use and benefit of Aborigines (CR31427) (19.1%) · Reserve-Use and benefit of Aborigines (CR31428) (3.7%) · Historical Lease H394/677 (8.6%) · Historical Lease H394/592 (8.6%) · Pastoral lease 3114/1173 (Hooley) (22%) |
| E47/2422 | E47/2424 | E47/2425 | E47/2426 | |
| Services Affected | · various tracks · rock outcrops · sand areas · a well/bore · various cliff/breakaway/rock ridges · nearly 300 minor water courses (non-perennial) · one major water course · over 80 spring/soak/ rock hole/waterholes | · SSM-B12 · two tracks · two airfield runways · variety of rock outcrops and rock columns, · Cheearra Hill · over 200 non-perennial minor water courses · 5 non-perennial lakes · a number of spring/ soak/rockhole/ waterholes. | · historic mine site, SSM-MN801 · Nearly 30 tracks · Over 30 rock outcrops · Two well/bores · Nearly 100 cliff/ breakaway/rock ridges · Six non-perennial lakes · Nearly 500 minor non-perennial watercourses · Over 200 spring/soak/ rockhole/waterholes including some named (for example Mosquito Pool, Cajurput Springs, Biladunna Spring and Tanamah Spring) | · Corung Creek · A number of tracks · One fence line · A yard · Three rock outcrops · A windmill · Over 30 cliff/ breakaway/rock ridges · Seven non-perennial lakes · Over 300 non-perennial minor watercourses (including some named including Sherlock River, Powder Creek, and Creek Pilbaddy) · Over 20 soak/ rockhole/waterholes including Miaguarina Pool |
| DIA Sites[1] | No registered sites - site 656 is on or near the western border but it is not noted as being within the proposed licence. | Registered site 11326 (Yandearra) exists within the tenement, but not within the determination/ proposed licence overlap. | Three registered sites are recorded within this proposed licence (10610, 10703, and 10702). It appears they are all within the proposed licence and determined area overlap, in the south eastern portion. Tribunal mapping also shows an area called Billabong Spring, which is not registered as a DIA site. | Five registered sites are recorded as being within this proposed licence: · Horse Spring Pool (11321) on the western border of the proposed licence; · Horse Spring (11322) and Powder Creek (11325) both on the southern border; · Yandagoodjie Rockhole (11324). The site Mindin-Birinya (11804) is within the proposed licence/determined area overlap, but it is not where native title exists. |
[1] Information obtained from the extract of the Aboriginal Heritage Inquiry System, Aboriginal Sites database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA)
[17] The draft tenement endorsements and conditions extract provided by DMP indicates that the grant of each of the proposed licences will be subject to the conditions as outlined in Attachment 1 to this determination.
[18] The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of each of the proposed licences:
1.The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2.The 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.
[19] The Government party also states in its contentions (at 26) that it will place the following condition (the ‘proposed RSHA condition’) on the grant of the proposed licences:
in respect of the area covered by the licence, the licensee, if so requested in writing by the Yindjibarndi Aboriginal Corporation, the registered native title body corporate holding the determined native title of the Yindjibarndi People, the native title holders recognised in Federal Court Application WAD6017/96 (WC99/14), such request being sent by pre-paid post to reach the Licensee’s address not more than 90 days after the grant of this licence, shall within 30 days of the request execute in favour of the Yindjibarndi Aboriginal Corporation, the Pilbara Regional Standard Heritage Agreement endorsed by the Pilbara Native Title Service.
[20] The Government party indicate that the grantee party sent an offer to enter into an RSHA to the native title party on 23 November 2010. The offer does not appear to form part of the material sent to the Tribunal, but this statement is not contested by the native title party. It would assist the Tribunal if parties were to include supporting materials for any contentions or assertions which are made in such matters.
[21] Government party contentions point to the fact that reserves 31429 and 31427 sit, in varying proportions, over each of the proposed licences. The Government party notes that reserve 31429 is land where the native title party claim is extinguished (as held in Moses). Approximately one quarter to one fifth of proposed licence E47/2422 and E47/2425 respectively are covered by reserve 31429. Over half of E47/2426 is covered by reserve 31429 and just over 40 per cent of E47/2424 is covered by reserve 31429. The proportion that native title does exist on the proposed licence is outlined in the table at [1], so not all of the overlap between the licences and the determined area is land subject to native title.
[22] In relation to reserve 31427 and 31428, this is land to which Part III of the Aboriginal Affairs Planning Authority Act1972 (WA) applies. It is categorised for the use and benefit of Aborigines and exploration requires the written consent of the Minister for Mines and Petroleum, who must consult with and obtain a recommendation from the Minister for Indigenous Affairs before giving such consent. The Minister for Indigenous Affairs requires a grantee party to negotiate an agreement with the native title party in respect of access to such reserves for exploration activities. Reserve 31428 sits on E47/2426 at under 4 per cent. Over 55 per cent of E47/2424 is covered by reserve 31427 and E47/2426 is covered by reserve 31427 at just under 20 per cent. Under 6 per cent and 1 per cent of E47/2422 and E47/2425 respectively is covered by reserve 31427.
Grantee Party
[23] By letter on 15 March 2013, the grantee party indicated it would rely on the States contentions and also that they:
·will not exclude any community activities unless during a particular activity ‘it is considered temporarily unsafe for the conduct of community activities’, and ‘should it be unsafe... the grantee will consult with the community to relieve apprehensions’
·will notify the native title party prior to any exploration activity ‘likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Traditional Owners to minimise any disturbance’
·recognise there are registered Aboriginal sites on some of the proposed licences, and would comply with the AHA
·will ‘report any Aboriginal sites identified during exploration activities’ as required by the AHA, and have never been prosecuted in relation to breaches of the AHA
·will ‘restore land immediately after carrying out its exploration programme on the Tenement...as close as possible to the condition prior to exploration being undertaken by the Grantee or its agents’
·suggest the proposed exploration activity ‘will not constitute 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’
[24] The grantee party have not outlined the particular exploration activities they intend to undertake, and so I have assumed they will be executing the full suite of rights they are entitled to.
Native Title Party
The native title party affidavits
[25] Mr Michael Woodley outlines that he is authorised to make his affidavit in support of the statement of contentions filed on behalf of the native title party in relation to these proposed licences, and that he has authority to speak for the native title party. That authority is supported by the affidavit of Mr Ned Cheedy and I accept Mr Woodley has that authority. The affidavits of Mr Woodley and Mr Cheedy are attached to this decision as Attachment 2 and 3 respectively. In his affidavit, Mr Woodley outlines the broad history of his learnings about the Yindjibarndi culture, and some of the background to the expedited procedure in these matters and in relation to its broader application.
[26] In regard to s 237(a) Mr Woodley states:
·some of the history and culture of Yindjibarndi country in general (at 9-30)
·the proposed licences contain pictures of the Marrga (‘powerful creative spirit beings who gave form to everything that in Yindjibarndi’ (at 13 and 9)) and these pictures are carved in rocks in caves and rock shelters (at 13)
·‘Yindjibarndi country is divided up into 13 home areas...these divisions are important for our ceremonial activities’ (at 27)
·two of these home areas (or Ngurra) ‘will be affected by the proposed tenements’ (at 31)
·those two Ngurra are: ‘a) Gumbarrungunha Ngurra, which is on the western side of Marribiyanha Wundu: a roughly north-south river that runs through both E47/2422 and E47/2425; and, b) Winyjuwarra Ngurra, which is on the eastern side of Marribiyanha Wundu’. I note Tribunal mapping and DMP quick appraisals show a great many water courses across both of these tenements, some of which are named and many of which appear to be unnamed (as outlined in the ‘Services Affected’ portion of the table at [16] of this determination). Mr Woodley refers to a map attached to his affidavit in support of the two Ngurra, and while these two Ngurra do not appear to be named on that map, Marribiyanha Wundu is marked and does run north-south through E47/2422 and E47/2425 and is later described in his affidavit as a trade freeway with campsites all along, with an extension of that waterway being Jinyinnha Wundu running easterly across E47/2425
·the significance of the Ngurra in some detail (at 33-38)
·the Yindjibarndi People ‘continues to occupy, use and enjoy the Yindjibarndi native title area, including those parts where Croyden Gold wants the tenements’ (at 39) and outlines that four members of the Yindjibarndi People and others continue to exercise native title rights and interests in these areas. I do note there is little detail on how ‘others’ continue to use these areas
·he last travelled to the proposed tenement area in 2011 with three other members of the native title party ‘as part of our ongoing commitment to look after our country and let it know we still care’ and during the camping various rituals and ceremonies were performed at sites (at 40)
·the mechanisms where strangers to Yindjibarndi country are managed (46-57)
·the importance of negotiating agreements that assist the native title party to manage and look after special places on country (at 58-61). However, I note there is little detail on exactly how that managing is done within these particular licences
[27] In regard to s 237(b), Mr Woodley’s affidavit:
·points to defects in the AHA and the state’s regulatory system in general and specifically in relation to mining and exploration (at 66-68), and provides reports and annexures in support of those concerns. However, I note no particular passages within those reports are highlighted in support of this argument, or which relate particularly to either the grantee party or the proposed licences in this matter. In addition, one of the attachments, which is the Auditor-General’s Report dated September 2011, Ensuring Compliance with Conditions on Mining has been addressed in previous Tribunal decisions (see for example Karajarri, particularly at [86]-[87] and [91]. As noted in Karajarri, any defects in the regulatory regime must be viewed within the context of the particular matter, and ‘weight must also be given to the evidence provided in relation to the proposed activities of each particular grantee party’ (at [50]). The arguments put forward by Mr Woodley are also raised in the native title party contentions, but again, little detail is provided about defects in the regulatory system in relation to these particular proposed licences.
·refers to the two Ngurra where he states ‘there are many sites, objects and places in the parts of those Ngurra which will be affected by the proposed tenements and are of particular significance to the Yindjibarndi People’ (at 62)
·states special places include:
oall Wundu (watercourses)
oYirrgarn (birthplaces)
oThungari (burial sites)
oYamararra (caves and rock shelters)
oThalu (increase and healing sites)
oMaminagrli (rock carvings)
oBudbungarli (artifacts)
oYarna-ngarli (ochre quarries)
oWurrungarli (special hunting hides)
[I note that the registered sites within the determined area/proposed licence area overlap are engraving/painting or artefact/scatter sites.]
·a map is attached to the affidavit which depicts the location of some of these sites. Mr Woodley states he is unable to give the precise location of all of the sites ‘but I know of the existence of the significant sites, objects and places...because of the songs we sing in...Law ceremonies’ (at 63)
·he has located 19 sites and places on the map attached to his affidavit and confirms he has visited these along with other members of the native title party:
oSite 1 (Bithirrta - hills, caves and rock shelters which contain remains and artefacts).
[It is difficult to see from the map provided by Mr Woodley the extent to which this site is within the proposed licence area for E47/2425. Mr Woodley states these hills are also known as Mungaroona Range, however, Tribunal mapping shows that Range is to the East and within proposed licence E47/2426.]
oSite 2 (Marribiyanha Wundu - a watercourse and a trade freeway with campsites all along): within E47/2422 and runs in a north-south direction through E47/2422 and E47/2425.
oSite 3 (Jinyinnha Wundu - an extension of the trade freeway of site 2): runs east-west through E47/2425.
oSite 4 (Biliguthanha Wundu - a trade freeway): within proposed licence E47/2425.
[I note this site is within the Mungaroona Range nature reserve R31429and as such native title has been extinguished in that area.]
oSite 5 (Mujara Thalu - a dingo area): within E47/2424.
[Much of E47/2424 is subject to extinguishment, however, site 5 is very close to the small percentage where native title has not been extinguished.]
oSite 6, 7 and 8 (Bidiwarunha Jinbia, Wirrinyarra Jinbi and Bujagandi): on or near E47/2425. Site 6 and 7 are springs, each associated with a nearby 'old campsite', and site 8 is a campsite 'where our old Yindjibarndi people did Nunda ceremonies'.
[Site 8 appears to be on or near to where native title has been extinguished.]
oSite 9, 10, 11, 12 and 13 (Buggarngarra Marnda, Garduwarla Wundu, Garrawa Wundu, Thawarranha Marnda and Mawarn Thalu) are related to meeting places, campsites, ceremonial areas (including for senior men – Thawarranha Marnda and Mawarn Thalu) and two are said to contain rock art (Garrawa Wundu and Garduwarla). Site 9 is a hill associated with multiple campsites, artefacts and relics 'associated with their use over thousands of years'. Site 10 is associated with ceremonies and meetings including singing each year, as well as artefacts and rock art. Site 11 is associated with a special place or watercourse as well as artefacts and rock art
[All appear to lie within the portion of E47/2426 where native title has not been extinguished and also close to sites 11321, 11322, 11324 and 11325 as registered on the DIA database. It is not clear whether the sites named by Mr Woodley are the same as some of the DIA registered sites - this is outlined in more detail at [64] of this decision.]
oSite 14 (Buwarda Wundu - meeting place): within E47/2426.
[This appears to be in the Mungaroona Range nature reserve R31429 portion of the tenement E47/2426 where native title has been extinguished.]
oSite 15 (Mumbulumha Marnda - an area of great significance): is within proposed licence E47/2424.
[This site is within the area where native title has been extinguished. It is also close to the DIA registered site 11327 which is itself outside of proposed licence E47/2424.]
oSite 16 and 17 (Tharrilinginya Jinbi and Buyanha Jinbi) - are springs and are significant for ceremonies and campsites, both being ‘important’ and the latter being proximal to artefacts and rock art.
[Both are in the southern most portion of E47/2425 and very near DIA registered sites 10703 and 10702 which area is also in the proposed licence/determination area overlap. It is not clear whether the sites named by Mr Woodley are the same as the DIA registered sites.]
oSite 18 (Wanawarranha Wundu - a travel path): within or near E47/2426.
[This appears to be in the Mungaroona Range nature reserve R31429 and native title has been extinguished.]
oSite 19 (Minin Binia Marnda): is a registered site containing a natural feature.
[The portion of the proposed tenement within the determined area is wholly within the Mungaroona Range nature reserve (R31429) and native title has been extinguished.]
[28] In regard to s 237(c), Mr Woodley’s affidavit simply states broad arguments about the importance of an agreement between the native title party and the grantee party (at 69-71), but does not outline any specific information regarding disturbance to land and waters.
The native title party contentions
[29] Native title party contentions suggest that the grantee party is unable to comply with the provisions of the Mining Act and conditions imposed on the proposed tenements as exemplified by failing to comply with expenditure conditions placed on an adjacent tenement. However, there is no evidence or information linking what happened on the adjacent tenement to the current proposed licences, nor any particular evidence showing that failing to comply with expenditure conditions on one tenement would affect the ability to comply with conditions on the proposed licences.
[30] In relation to s 237(a), the contentions reiterate aspects of Mr Woodley’s affidavit in terms of interference with community activities. They state that the size of the proposed licences relative to the native title determination area argument cannot be applied as it was in Member O’Dea’s decision in Braeburn Resources as it is not necessarily the case that the native title party could still conduct community and social activities should the grants of licence proceed. They state that such grants will directly interfere with the community and social activities of the Yindjibarndi people because the ‘area of the proposed tenements combined is not insignificant’ and that 'coupled with the extent of the determined extinguishment area', means that it is not simply 'that community activities including hunting, camping et al can be undertaken on other parts of the Yindjibarndi determination area' (at 34). It appears that the determination in total is 24,423 square kilometres and the area of the proposed licences/determined area overlap is just over 700 square kilometres (or approximately 3 per cent of the determined area), and within that determined area/proposed licence overlap, some of the area is subject to extinguishment. However, neither the native title party contentions nor the affidavit of Mr Woodley provide particularly detailed information about the extent and frequency of use of the determined area/proposed licence overlaps and the activities conducted within those overlaps.
[31] In relation to s 237(b), the native title party state that s 17 of the AHA can’t be relied upon to protect sites or areas which fall under s 237(b) (at 42-50), and refer to a previous instance in which they state DIA failed to protect a site of particular significance from damage or destruction (at 51-53). However, there is no evidence connecting the grantee party to this event.
[32] They say that the annual report of DIA shows that of the 131 s 18 applications considered, 125 were consented to, approximately 95 per cent (at 56). They argue in the face of that approval proportion, s 18 of the AHA is of little assistance to protect sites (at 56-59). The native title party does point out that these examples are in relation to mining and I note the current matter is in relation to exploration licences, which are generally held to be of a lower impact than mining. I also note that the RSHA, should the native title party request one, includes a clause that the grantee party must consult with the native title party before making a s 18 application. Finally, in relation to this point, it is not clear from the native title party submissions, or the DIA annual report they have referred to, whether any of these s 18 applications were contested by the relevant native title party. As such, it is difficult to draw any adverse conclusions from the statistics quoted by the native title party in this regard.
[33] In relation to s 237(c), the native title party contends the Tribunal can take international instruments into account in its construction of the term ‘disturbance’ for the purposes of the inquiry under s 237(c), they suggest that such disturbance or interference ‘will constitute infringement of articles 18 and 27 of the International Covenant on Civil and Political Rights’ (at 74). However, I note this point was previously dealt with by the Tribunal and was upheld on appeal to the Federal Court in Cheedy. The difficulty with the native title party’s argument is that no ambiguity has been identified in the construction of the terms of the Act relevant to this matter. In the absence of such a relevant ambiguity, there is no scope for considering the relevance of any international instrument. In addition, following the Federal Court view, assuming some unidentified ambiguity existed, the native title party have not articulated how the interpretation which could be adopted by the Tribunal would be inconsistent with the international instrument.
Considering the Evidence in context of s 237 of the Act
Community or social activities (s 237(a))
[34] The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
[35] The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
[36] The grantee party’s intended activities have not been outlined in terms of its exploration program, but its general approach to its activities, and its intentions are outlined at [22] above.
[37] The native title party’s contentions in relation to s 237(a) are outlined at [30] above and the affidavit evidence at [26] above.
[38] Government party contentions indicate that there is not likely to be direct interference with the community and social activities of the native title party because:
·of the grantee party’s stated intentions (for example, ‘not to exclude the native title party from conducting... community activities, unless it would be unsafe to do so’, and the RSHA condition)
·existing reserves have either extinguished native title (for example reserve 31429) or attract conditions that require ministerial approval should the grantee party wish to access the area (for example reserve 31427 and 31428)
·pastoral leases on the proposed licences will have also interfered with community or social activities – for example Mallina covers 67 per cent of E47/2422; Hooley, Mallina and Mt Florance cover over 50 per cent of E47/2425; and Hooley covers over 20 per cent of E47/2426. In addition Hooley covers 0.02 per cent of E47/2424 and it appears to be the same area where native title exists and where there is an overlap of the determined area and the proposed licence area
·the 'greater the opportunity a Native Title Party has to continue to conduct the asserted community activities outside of a proposed tenement, the less likely it will be that the grant of the proposed tenement will interfere with those activities’
·there are no Aboriginal communities within the proposed licences
·the ‘low-scale and infrequent exploration activities’ of the grantee party are unlikely to disrupt the native title party managing the country or conducting ceremonies
[39] As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation at [14]). Based on the available evidence, I cannot say it appears that exploration activities would directly interfere with the community and social activities, as they are said to occur on any of the proposed licences in the evidence provided.
[40] In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
[41] The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are a number of Registered Sites within the overlap between the determined area and the proposed licence areas (see table at [16]). However, this does not mean that there may not be other sites, or areas of particular significance, to the native title party within the proposed licence/determination area overlaps or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
[42] The grantee party’s intentions are outlined at [23] above.
[43] The native title party’s contentions directed at s 237(b) of the Act are outlined at [31]-[32] above.
[44] The native title party’s affidavit evidence is outlined at [27] above.
[45] The Government party contentions state that, should there be any areas or sites of significance within the proposed licence, interference with those areas is not likely because:
·the grantee party is aware of its obligations and responsibilities under the regulatory regime and undertakes to commission appropriate heritage surveys, and the grantee party has previously amended exploration plans to preserve or avoid sites
·if the grantee party applied for consent to interfere with the site under s 18 of the AHA, the Aboriginal Cultural Materials Committee (ACMC) ‘would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons’
·referring to Mr Woodley's list of sites, the following are not necessarily sites of particular significance under the meaning of s 237(b):
oSite one (Bithirrta)
oSite two (Marribiyanha Wandu)
oSite three (Jinyinnha Wundu)
oSite four (Biliguthanha Wundu)
oSite five (Mujara Thalu)
oSite six (Bidiwarunha Jinbi)
oSite seven (Wirrinyarra Jinbi)
oSite nine (Buggarngarra Marnda)
oSite ten (Garduwarla Wundu)
oSite 11 (Garrawa Wundu)
oSite 14 (Buwarda Wundu)
oSite 15 (Mumbulumha Marnda)
oSite 17 (Buyanha Jinbi)
oSite 18 (Wanawarranha Wundu)
oSite 19 (Mindin Birna Marnda)
[46] The Government party is silent as to whether they regard sites 12 and 13 to be of particular significance. They do suggest that site eight is a site of particular significance, but state there is little information about the location of the site within the proposed licence E47/2525. However, as I noted at [27] above, site eight appears to be located where native title is extinguished. Even assuming site eight is actually within the determined area and not subject to extinguishment, these sites (six, seven and eight) appear to be of a historical nature (with the campsites being 'old' for example, and the grantee party is now on notice that these sites exist in that south east portion of E47/2425 and can take steps to ensure such are not interfered with.
[47] Even if there were sites of particular significance within the proposed licences, the Government party states that it is unlikely they would be interfered with because of the intentions of the grantee party, including relatively minor ground disturbing activities. They state the proposed endorsements and conditions for each proposed licence will afford protection, and pastoral leases and reserves already exist over each proposed licence, in varying proportions.
[48] The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]).
[49] The regulatory regime based on the AHA has also been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
[50] Because of the number of sites identified by the native title party, and the fact there are four proposed licences covered in this decision, I deal with each proposed licence separately in the context of s237(b).
E47/2422
[51] Native title exists over approximately 67 per cent of this proposed licence. That entire portion is also covered by a pastoral lease (Mallina). Mr Woodley identifies Marribiyanha Wundu (site 2) as running through this proposed licence and down into E47/2425. He states it is a watercourse and trade freeway with campsites all along. The Government party has stated this is not a site of particular significance. However, Mr Woodley has provided much detail in relation to this site and its significance, including the location being associated with Ngurra or home areas which are stated to be of 'particular significance'. As such, I accept this site is one of particular significance. The question then is whether there is evidence that exploration activities of the grantee party will interfere with that site.
[52] Given that it appears to be covered by a pastoral lease, this site would have already co-existed with pastoral activities. Had the proposed licence been for mining activities, then there would be some argument that mining activities would interfere with such a site, above the interference already likely to be caused by pastoral activities. However, the grantee party has applied for an exploration licence, which is of a low impact nature. The grantee party has indicated they will comply with the conditions and endorsements (including an RSHA condition should it be requested), will 'consult with traditional owners to minimise any disturbance' and will 'report any Aboriginal sites identified during exploration activities'. Mr Woodley has provided a map showing the approximate location of Marribiyanha Wundu, and as such, the grantee party is also on notice of the existence of this site, and that there is likely to be old campsites nearby.
[53] No other sites or areas of significance have been identified by the native title party as existing on this proposed licence.
[54] For those reasons, I find that for the purpose of s 237(b) of the Act there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence E47/2422.
E47/2424
[55] Native title exists on only 0.16 per cent of this proposed licence. This entire proportion of 0.16 per cent also appears to be covered by a pastoral lease (Hooley). The native title party have identified Mujara Thalu (Site 5) as being on or near that portion where native title exists. The Government party has argued this is not a site of particular significance. However, Mr Woodley has provided information about its connection with the dingo, its association with the Yindjibarndi Laws, its association with ceremony, and the birthplace of a senior person. As such, I accept this is a place of particular significance for the native title party.
[56] For the reasons outlined in [52] above, I do not believe there is likely to be interference with this site for the purpose of s 237(b) of the Act. The grantee party are now on notice that this site is on or near the area where native title exists. Any other sites identified by the native title party in this proposed licence (for example, site 15), are within the portion where native title does not exist.
E47/2425
[57] Native title exists over 75 per cent of this proposed licence. In addition it is covered by three pastoral leases (Hooley, Mallina and Mount Florance) to a total of approximately 50 per cent. Mr Woodley has identified nine sites on or near the proposed licence, seven of which appear to be located where native title exists, and the remainder being in areas where native title has been extinguished, or outside of the proposed licence.
[58] I outline information about the areas where native title exists. Marribiyanha Wundu (site 2) has already been detailed at [51] above - it runs from E47/2422 southerly through this proposed licence. Junyinnha Wundu (site 3) is stated to be an extension of Marribiyanha Wundu. Junyinnha Wundu runs east west through this proposed licence. Bithirrta (site 1) is Mungaroona Range which may or may not be within the proposed licence as outlined at [27]. Mr Woodley has provided some information about the importance of this Range, and it appears there may be areas of particular significance within the Range (for example, caves and rock shelters containing artefacts, relics and sacred items) but it is difficult to isolate its location from the available evidence, and as a Range which appears to stretch for some kilometres, it is difficult to say, without further detailed evidence, that the Range itself is a site of particular significance.
[59] Tharrilinginya Jinbi (site 16) and Buyanha Jinbi (site 17) are both springs stated to be significant for ceremonies and 'old' campsites, the latter being proximate to artefacts and rock art, and the former associated with ceremony, artefacts and rock art. They are very near registered sites 10703 and 10702 respectively, which is also in or very near the proposed licence/determination area overlap. It is not clear whether the sites named by Mr Woodley are the same as the DIA registered sites.
[60] I have already accepted Marribiyanha Wundu is an area of particular significance, and accept Junyinnha Wundu is also such an area, as it is an extension of Marribiyanha Wundu and stated to be associated with the Ngurra. In relation to Tharrilinginya Jinbi and Buyanha Jinbi, I accept they are sites of importance, given their association with ceremony, that they are permanent springs and near to old campsites and rock art, but it is difficult to conclude they are sites of particular significance without further evidence or information.
[61] In relation to sites six and seven, they are also associated with an 'old campsite' and a spring respectively, as outlined at [46] above, and while they are important, there is no evidence they are of particular significance.
[62] Again, for the reasons outlined in [52] above, and because the sites of particular significance are clearly delineated to the extent that the grantee party can take steps to avoid disturbance, I do not find it likely these sites or areas will be subject to interference by exploration activities of the grantee party for the purposes of s 237(b) of the Act.
E47/2426
[63] Native title exists over 22 per cent of this proposed licence, and most of that 22 per cent is covered by a pastoral lease. Mr Woodley has identified eight sites or areas of significance in this proposed licence, and as outlined below, sites appear to be in current use, and there is no suggestion that pastoral activities have disturbed these sites. There is no recorded previous mining or exploration activity on this proposed licence. Five of the eight sites appear to be located on or near the proposed licence/determined area overlap. The Government party argues that three of these sites (9, 10 and 11) are not of particular significance, and are silent on whether the other two (12 and 13) are of particular significance. The other sites appear to be in areas where native title has been extinguished
[64] The evidence before me does indicate that sites 12 and 13 are of particular significance. They are closely associated ceremonially in that one (site 12) is a hill where senior men go 'to request, and if they are deemed worthy by the country, to receive the power to heal' and the other (site 13) is a sacred site used by senior lawmen 'who have been judged worthy enough to receive the power to heal'. They are nearby a number of other sites identified by Mr Woodley (9, 10 and 11, as detailed in [27] above) and are near to sites on the DIA register (namely 11321, 11322, 11324 and 11325). It is not clear if these registered sites are, in some cases, the same as the sites identified by Mr Woodley. Site 10 and 11 are associated with water, as are all of the registered sites in this area (a pool, a spring, a creek and a rockhole), but the other sites identified by Mr Woodley do not appear to be associated with water so are likely to be different sites from those which are registered.
[65] Sites 9-13 are associated with camping, a sacred site used by senior law men, religious ceremonies associated with use of ochre, and various meeting places and campsites. They appear to be used in contemporary times, in contrast to many of the sites identified on the other proposed licences which appeared to be largely historical in nature (for example, being associated with 'old campsites' which are not stated to be in current use).
[66] Each year a song is sung at site 10, and one of the old campsites is used 'to support Ngarrda' and as such, I conclude it is a site of particular significance. Site 11 is similar to other identified sites in that it has an old campsite nearby, but is also associated with a watercourse, which Mr Woodley stated was a Wundoo and so a 'special place', as well as with artefacts and rock art, and as such, I conclude it is of particular significance. Site 9 is stated to have been used as a meeting place and has 'artefacts and relics associated with their use over thousands of years', and as such, it appears to be a site of particular significance.
[67] As such, all indications are this is an area which is of particular importance to the native title party. In the general course of events, the regulatory regime is often held to be sufficient to minimise the risk of interference of sites, as I have concluded in the case of the three other proposed licences under consideration. In Butcher Cheryl (at [91]), Member O'Dea noted:
If I had not had the benefit of the sworn evidence of the grantee’s deponents concerning the manner in which they intended to conduct the exploration program in relation to the proposed licence, and the steps they intended to take in order to address the issues raised by the native title party in relation to ss 237(a) and 237(b), I would not have been satisfied that the risk was remote, and indeed, it may well have been real.
[68] In the present matter, the grantee party have only provided a letter stating their intention to comply with the AHA and to respect registered sites. There is little information on their exploratory activities. Given the available evidence and the complexity of sites of particular significance in this area, it is likely that disturbance, even of an inadvertent nature, could occur in this area due to the activities of the grantee party, executing the full suite of rights they are entitled to, even in spite of the regulatory regime.
[69] As such, for the purposes of s 237(b) in relation to E47/2426, I conclude there is likely to be interference and the expedited procedure does not apply to this licence
Major disturbance to land and waters (s 237(c))
[70] The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
[71] The native title party’s submissions in relation to s 237(c) are outlined at [31] above. They are very brief and provide little detail on what activities might disturb land and waters within the proposed licences.
[72] The Government party submits the grant of the proposed licence is not likely to involve major disturbance to the land or waters or create rights, the exercise of which is likely to involve major disturbance to land or waters, because:
· the mere fact of strangers entering the country of the Yindjibarndi people is not sufficient to conclude there will be major disturbance or interference of land or waters as the native title party does not have exclusive possession of the areas
· the proposed conditions and endorsement will mitigate any authorised disturbance to land and waters
[73] In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including:
· The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
· Additional conditions will be imposed, including a condition requiring execution of the RSHA upon request from the native title party;
· The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
· There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
[74] Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur in this matter.
Determination
[75] The determination of the Tribunal is that the act, namely the grant of exploration licences E47/2422, E47/2424 and E47/2425 to Croyden Gold Pty Ltd, is an act attracting the expedited procedure.
[76] The Tribunal also determines that the act, namely the grant of the exploration licence E47/2426 to Croyden Gold Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
20 June 2013
ATTACHMENT ONE: DRAFT CONDITIONS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY E47/2422 E47/2424 E47/2425 E47/2426 1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2. All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5. 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.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
· the grant of the Licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. No activities being carried out within the proposed railway corridor (designate FNA 7279) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserve 31427, Conservation of Flora and Fauna Reserve (Mungaroona Range Nature Reserve) 31429 and Water Reserve 12251.
Conditions 1-6 of E47/2422, and the following:
7. No interference with Geodetic Survey Station SSM-B12 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8. No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metre from the natural surface.
9. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserve 31427, Conservation of Flora and Fauna Reserve (Mungaroona Range Nature Reserve) 31429 and Water Reserves 12259 and 12260.
Conditions 1-6 of E47/2422, and the following:
7. No interference with Geodetic Survey Station SSM-MN801 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8. No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
9. No activities being carried out within the proposed railway corridor (designated FNA 7279) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
10. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserve 31427, Conservation of Flora and Fauna Reserve (Mungaroona Range Nature Reserve) 31429 and Water Reserves 5514 and 14687.
In respect to the area of land designated EPA Red Book Recommendation EPA/8 in TENGRAPH, hereinafter referred to as the designated area, the following additional conditions shall apply:
11. Prior to accessing the licence area, the licensee shall consult with the Environmental Officer, DMP, and ensure that where required all vehicles and equipment entering the designated area are washed down to remove soil and plant propagules and adhering to such conditions specified for the prevention of the spread of soil-borne diseases.
12. Prior to any activity involving disturbance to vegetation and soils including:
· exploration access; and/or
· exploration sampling;
the licensee preparing a detailed program for each phase of proposed exploration for written approval of the Director, Environment, DMP, The Director, Environment, DMP to consult with the Regional/District Manager, Department of Environment and Conservation or other government agency (as relevant) prior to approval. This program to describe the environmental impacts and programs for their management and is to include:
· maps and/or aerial photographs showing the proposed locations of all ground activities and disturbances;
· the purpose, specifications and extent of each activity and disturbance;
· descriptions of all vegetation types (in general terms), land forms and unusual features likely to be disturbed by such proposed disturbances;
· details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;
· procedures to protect the integrity of special ecosystems such as wetland systems, mangal communities and rainforests areas (and/or associated rainforest monitoring sites) if applicable;
· techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;
· undertaking for corrective measures for failed rehabilitation;
· details of water requirements from within the designated area;
· details of refuse disposal; and
· proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.
13. Access to and from and the movement of vehicles within the licence area being restricted to ground or seasonal conditions and routes approved under the program or otherwise agreed by the Environmental Officer, DMP.
14. At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DMP outlining the progress of the operation and rehabilitation program and the proposed operations and rehabilitation programs for the next 12 months.
15. Prior to the cessation of the exploration /prospecting activity in the designated area, the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
Conditions 1-6 of E47/2422, and the following:
7. The prior written consent of the Minister responsible of the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserves 31427 and 31428, Conservation of Flora and Fauna Reserve (Mungaroona Range Nature Reserve) 31429 and Water Reserve 12263.
ATTACHMENT TWO: AFFIDAVIT OF MICHAEL WOODLEY
I, Michael Woodley, Chief Executive Officer of Yindjibarndi Aboriginal Corporation RNTBC; and, Chief Executive Officer of Juluwarlu Group Aboriginal Corporation, of 664 Lockyer Way, Roebourne, in the State of Western Australia, solemnly and sincerely affirm as follows:
Introduction
1.I am a member of the Yindjibarndi People and the Chief Executive Officer of the Yindjibarndi Aboriginal Corporation RNTBC (the "Native Title Party"). I am authorised to make this affidavit by the Native Title Party, for and on behalf of the Yindjibarndi People.
2.I make this affidavit in support of the Statement of Contentions filed on behalf of the Native Title Party objecting to the use of the expedited procedure for the grant of Exploration Licence E47/2422, E47/2424, E47/2425 and E47/2426 (the "Tenements") to Croydon Gold Pty Ltd ("Croydon Gold").
3.Except where I say otherwise, the facts set out in this affidavit are within my own knowledge and belief and. to the best of my knowledge and belief, they are true and correct. My authority to speak on Yindjibarndi culture comes from the knowledge I carry about Yindjibarndi country and Yindjibarndi Law and culture, which I learned from my old people. In this regard I refer to the affidavit of Ned Cheedy, which is attached and marked "NTP Contentions Annexure 1" (at 25).
4.At the time when Mr Cheedy made his affidavit, he was 105 years of age and worried he might not last much longer; and, sadly, he did pass away a year later. Mr Cheedy's affidavit, mistakenly says on the front page that it was sworn on 7 April 2010; however, it was sworn on 8 April 2011 and filed in Warden's Court proceedings.
5.All up I spent more than 20 years learning everything I could about Yindjibarndi culture from the old Yindjibarndi Law Bosses of Mr Cheedy's generation, including my grandfather, Woodley King, who kept me under control from the time I was a kid. These old Law Bosses taught me what they learned from their old Law Bosses: all the ceremonies, songs and stories for Yindjibarndi; all the sites and areas in Yindjibarndi Country, which are significant to us because of our religious beliefs; the ancient language we use in our Law ceremonies; and the dreaming meditation, Buyawarri, which we use to receive the knowledge from our country. I have worked hard on this because, like other Yindjibarndi people in the present generations, and like all members of the Native Title Party, I believe the survival of Yindjibarndi culture is important, not just for Yindjibarndi but for everyone. We believe the continued practice of our ceremonies keeps Yindjibarndi country alive and the Yindjibarndi People strong; that this ensures the survival of our religion; and, helps our young men to stay off the grog and out of the prisons.
6.The ‘Yindjibarndi People' is the society of Aboriginal people whose native title rights and interests were recognised by the Federal Court of Australia in Daniel v State of Western Australia [2005] FCA 536 (“Daniel”) and upheld by the Full Court of the Federal Court, in Mosesv State of Western Australia [2007] FCAFC 78 ("Moses"), in an area of land and waters situated in the Pilbara region of Western Australia ("the Yindjibarndi Native Title Area"). Pursuant to the Court's Determination in Daniel, the Native Title in the Yindjibarndi Native Title Area is held by the Yindjibarndi Aboriginal Corporation RNTBC ("the Native Title Party") on trust for the Yindjibarndi People; and, pursuant to the Court's Determination, in Moses, the Native Title in the Yindjibarndi Native Title Area comprises the following rights and interests:
a.the right to access the land and waters;
b.the right to remain on the land and waters;
c.the right to build shelters on the land;
d.the right to take ochre;
e.the right to protect and care for sites, including by performing any ceremonies required under traditional law to be performed at those sites; and,
f.the right to use and enjoy the land and waters for camping, hunting, fishing and foraging.
(the "Native Title Rights and Interests")
7.The Native Title Party is aware the State of Western Australia (the Government Party) has decided to use the expedited procedure provisions of the Native Title Act 1993, to facilitate the speedy grant of the proposed Tenements to Croydon Gold; and, this means the right of the Yindjibarndi Prescribed Body Corporate (PBC) to negotiate an agreement to protect the property rights of the common law holders (the Yindjibarndi People) will be removed unless we demonstrate to the Tribunal that the exploration activities permitted by the proposed Tenements are likely to interfere with community activities undertaken by the Yindjibarndi community or with any sites or areas of significance to the Yindjibarndi People; or that that the exploration activities are likely to be a major disturbance.
8.Having proved, to the satisfaction of the Full Court of the Federal Court, the existence of the proprietary rights that were given legal recognition in the Yindjibarndi Native Title Determination, the members of the Native Title Party do not understand why, unlike the holders of other proprietary rights, the holders of native title proprietary rights are required to repeatedly demonstrate anything further, in order to retain the right to negotiate an agreement to ensure activities permitted by proposed exploration licences do not unduly interfere with those proprietary rights. In our view, such requirements are unfair and discriminatory; and, a costly imposition on the meagre resources of the Yindjibarndi Registered Native Title Body Corporate (RNTBC).
Part A: Interference with Community Activities:
The Relevant Community and its Connection with the country that will be affected by the proposed Tenements
9.The Ngaardangarli (Pilbara Aborigines) who make up the Yindjibarndi People are bound together as a community by a shared system of religious beliefs and laws, which we call the "Birdarra Law". Like the other members of the Native Title Party, I believe Yindjibarndi country is a sacred domain inhabited by the spirits of our old people and by Marrga - powerful creative spirit beings who gave form to everything that is Yindjibarndi in the Ngurranyujunggamu (the creation times, when the earth was soft). However Yindjibarndi people do not believe the Ngurranyujunggamu is something that happened only long ago; we believe it is still happening and that our spirits are connected to our country in the ever present Ngurranyujunggamu.
10.We believe the Birdarra Law was given to the Marrga by Minkala (the Yindjibarndi name for God) who sent the Marrga to earth to create the Pilbara as we see it today and bring law to the Ngaardangarli. After a time however, the Marrga foresaw their own passing and so they gathered together all the Ngaardangarli at Gumunha, in the heart of what is now Yindjibarndi country. In those times, all Ngaarda (our abbreviation for Ngaardangarli) spoke a common language, were of one group, and carried no responsibility for any particular Law or country. The Marrga divided the Ngaarda into different groups and put each group into a domain where the Marrga had put their language and their Law. Each group was commanded by the Marrga to speak for their domain in the language for that domain and to look after their domain in accordance with the Law for that domain. Yindjibarndi country is the domain created by the Marrga for the Yindjibarndi People and this domain includes all the land and waters in the Yindjibarndi Native Title Area and the country where Croydon Gold want the Tenements.
11.Yindjibarndi country is acknowledged and respected by all Ngaarda as a holy place, because it is the place where all Law began; and the Birdarra Law, which is carried only by the Yindjibarndi People, is referred to by the other Ngaarda as "Thudungu" - the big sister ('sitting on top') of all other Law. Yindjibarndi do not say this; instead, we refer to the Law of our neighbours, which is called "Wallijingha", as the "top" Law. In this way, we each show respect for each other's Law.
12.The original common language of the Ngaardangarli is preserved in the Burndud, the song cycles we sing each year during the Birdarra Law ceremonies, which is in the ancient language of the Ngarrda. My grandfather and the other old Law Bosses taught me that language so it would not be lost; and today I have transcribed over a hundred of these songs - word for word: its name; what it is; and what it means.
13.Yindjibarndi people believe that the Marrga still live in Yindjibarndi country along with the spirits of our old people; and, that they watch us always to make sure we look after our country the proper way, in accordance with the Birdarra Law. Throughout Yindjibarndi country, including the country where Croydon Gold wants the Tenements, there are pictures of the Marrga, carved in rocks and painted in Yamararra (caves and rock-shelters), which were left behind for us today as proof that the Marrga are still here and watching us to make sure we are looking after our country.
14.Like the other members of the Native Title Party, I believe that Yindjibarndi people, Yindjibarndi language and Yindjibarndi country (and all that is within, from both past and present) are not different things, but related parts of one thing, called "Yindjibarndi”, which came into existence, and continues to exist, in the Ngurranyujunggamu. I do not feel or see myself as something that is separate and different from Yindjibarndi country. My spirit comes from my country and is always connected to it in the Ngurranyujunggamu. It's the same for all Yindjibarndi. This is why, if Yindjibarndi country is hurt because the Birdarra Law is not followed, Yindjibarndi people suffer. The Yindjibarndi People were commanded by the Marrga to look after Yindjibarndi country, in accordance with the Birdarra Law, and we are held accountable for everything anyone does in Yindjibarndi country.
15.Under Birdarra Law, if we look after our country the proper way, our country must look after us and provide for us; this is the sacred promise of Minkala, which was told to us by the Marrga. However, if we break the Birdarra Law, or allow others to break it, we suffer; our people get sick or die, or the country dries up and we can't get what we need to go on living.
16.That is what happened at Ngurrawaana when our old people were forced off the Millstream Pastoral Lease by the station owner in the 1950's and we were unable to look after that part of our country. The Ngurrawaana Wundu (river) dried up and it stayed dry for over 30 years, until my Grandfather, Woodley King, went back in 1985 and started the Ngurrawaana Community. Even then, it was four years before the river started running again.
17.Under Birdarra Law the Yindjibarndi People are the voice of Yindjibarndi; and, if we are not allowed to speak for Yindjibarndi country and look after our country in the way we are obliged to, or if the connection between us and Yindjibarndi country is broken, the country dries up and dies. It can be brought back to life by Yindjibarndi people but not without a lot of suffering, grieving and hard work.
18.The most important part of the Birdarra Law is Galharra, the system of rules that governs all Yindjibarndi relationships. Under this system, everything that is Yindjibarndi is divided into four groups: Banaga, Burungu, Garimarra and Balyirri. Every animal, every plant and water place, the sun, the moon and the stars; fire, wind and water; and every Yindjibarndi child that is born - everything belongs to one of these groups.
19.Galharra tells us how a person in one group must behave in relation to all people and things in that same group and in relation to all people and things in the other three groups. Galharra is the centre of everything; it tells each of us what we must do and what we must not do in our relationships with each other and in our relationships with our country and its resources.
20.Galharra sets the rules for sharing work, responsibilities and resources in Yindjibarndi country. For example, the Galharra of each man and woman determines their roles and responsibilities at Birdarra initiation ceremonies and at funeral ceremonies. These roles and responsibilities change, depending on the Galharra of the initiate and so on. Galharra tells us who will be the bosses, and who will be the workers at these ceremonies. Galharra also tells us who we can may marry and who we must avoid; who we must care for and who must care for us; who we must defer to and who must defer to us.
21.In Yindjibarndi country, Galharra determines who should first approach a particular Yinda (permanent pool) or Wundu (watercourse); and who should drive any particular Thalu (sacred site). If a man wants to work with wood, he will make sure that the tree shares his Galharra; otherwise it will be very difficult for him. On the other hand a person should not eat the meat of an animal that has the same Galharra, because that animal is his or her brother or sister, and eating its meat will make them sick.
22.A fundamental aspect of the Galharra law is what we call "Nyinyadt”. This is a system of rules about sharing resources in Yindjibarndi country that is critical to the social fabric of Yindjibarndi. Nyinyadt gives rise to generosity and kindness so life can be lived without greed and misery it represents the good in all. Nyinyadt is a law that dictates principles of reciprocity that govern the use of all natural resources in Yindjibarndi country - it is a social contract under which everyone is entitled to share in the bounty of Yindjibarndi country and prosper.
23.If Yindjibarndi people don't comply with or won't acknowledge Nyinyadt they become cursed by the country. We call this Gurruwara; and it is a death warrant. A slow and painful death follows to demonstrate what happens to greedy and selfish individuals who challenge or go against Nyinyadt.
24.Nyinyadt also governs our relationships with the Ngaarda from other language groups, when they wish to hunt, gather or use the resources in Yindjibarndi country. Nyinyadt requires them to share some part of the fruits of their labour in our country with us; and we are then obliged to do the same when we go to their country.
25.The Galharra Law today is the same law given by Minkala to the Marrga and passed down by our old people. It binds us together as a community and ensures the resources of our country are shared by the present generations and preserved for future generations.
26.The Galharra system also connects each Yindjibarndi person to their Ngurra ("home area") in Yindjibarndi country and provides a structure of authority for our community.
27.Yindjibarndi country is divided up into 13 home areas, which we call Ngurra, and each Ngurra is divided by a Wundu which gives the Ngurra its name. Each Ngurra has four parts; one for each of our Galharra groups. The Banaga and Burungu, are on one side of the Wundu; and, Garimarra and Balyirri, are on the other. The Banaga and Burungu side is called Walhany; and the Garimarra and Balyirri side is called Ngarrli. These divisions are important for our ceremonial activities.
28.Each Ngurra is the "home" of the Ngurrarangarli. This is the Yindjibarndi word for the human beings from the Ngurra; however we often shorten this word to "Ngurrara". In accordance with the Birdarra Law, we believe the spirits of the Ngurrara come from inside the Ngurra; belong to the Ngurra; and return to the Ngurra after we die. Even when we are physically separated from our Ngurra, through our daily activities, in the Ngurranyujunggamu the spirits of the Ngurrara remain connected to their Ngurra.
29.Each Ngurra has its own spiritual energy, which is very powerful, and each Ngurra holds the spirits of all our ancestors who belonged to that Ngurra. Those spirits watch over the Ngurrara to make sure we are following our law. If we do, they look after us and help us; if we don't, they can grab us and hurt us.
30.Each Ngurra also has its own Thalu (sacred sites where we perform religious ceremonies, which enable us to control particular resources or heal the sick and injured) and its own sacred resources, including Yarna (ochre) and Gandi (sacred stones), which are used in religious ceremonies and, under the Birdarra Law, may be used only by, and for, the Ngurrara.
31.Two of the 13 Ngurra in Yindjibarndi country will be affected by the proposed Tenements. To explain the locations of these Ngurra and various other sites in the proposed Tenements I refer to the map attached as "NTP Contentions Annexure NTP2" (at 27).
32.The two Ngurra are:
a.Gumbarrungunha Ngurra, which is on the western side of Marribiyanha Wundu: a roughly north-south river that runs through both E47/2422 and E47/2425; and,
b.Winyjuwarra Ngurra, which is on the eastern side of Marribiyanha Wundu.
33.As demonstrated below, in Part 2, there are also sites and areas in each of these Ngurra, of particular significance to the Yindjibarndi People under the Birdarra Law, which are situated in the areas where Croydon Gold wants the proposed Tenements.
34.For each of the 13 Ngurra there are four Mirduwarra (bosses) – one for each of our four Galharra groups. One of these Mirduwarra, the most knowledgeable, in the Birdarra Law, is also called the "Tharngungarli", which is frequently abbreviated to "Tharngu".
35.The Tharngu is the overall boss for both the Ngurra and the Ngurrara; and he is assisted by one of the other Mirduwarra, who is called "Minga-Margu". He is the Mirduwarra who is "closest" in knowledge to the Tharngungarli; and is therefore likely be the next Tharngu for the Ngurra.
36.The Tharngu who is acknowledged and respected as the most knowledgeable in the Birdarra Law, is also called "Nyambali'. He is the Chief Law Boss for Yindjibarndi. The Nyambali also has a Minga-Margu - the Tharngu who is "closest" in knowledge to him; and is therefore, likely be the next Nyambali.
37.The Nyambali and the Tharngu, in accordance with our beliefs, are directly accountable to the Marrga, for making sure the Birdarra continues to be followed, and that sacred places, important areas and objects in Yindjibarndi country are properly protected and preserved for the future generations of Yindjibarndi. This is why the Nyambali will not make decisions alone.
38.Traditionally, important decisions affecting Yindjibarndi Country were made by what we call the "Nyambali-Tharngungarll", the Nyambali and the Tharngu, sitting together as one body. The Nyambali-Tharngungarli will still meet today to discuss important issues and reach consensus on what fits best with the Birdarra; however, over the past twenty years things have changed to make way for more democratic processes of decision making; and these days, important decisions affecting Yindjibarndi country are made by consensus at community meetings of the Yindjibarndi People, in which the Nyambali and Tharngu provide advice and guidance. This is because the authority of the Birdarra Law bosses today really depends on whether Yindjibarndi people, as a community, wish to continue to practice and uphold the Birdarra Law. By and large the Yindjibarndi community, to date, has chosen to do so.
Occupation, use and enjoyment of country
39.The "Yindjibarndi People", as a community of common law holders of the Native Title Rights and Interests in the Yindjibarndi Native Title Area, continues to occupy, use and enjoy the Yindjibarndi Native Title Area, including those parts where Croydon Gold wants the Tenements; and, members of the Yindjibarndi People, including Thomas Jacob, Stanley Warrie, Angus Mack and me, continue to exercise our Native Title Rights and Interests in the Yindjibarndi Native Title Area, including the areas of land and waters that would be affected by the Tenements, as and when we please.
40.Thomas Jacob, Stanley Warrie, Angus Mack and me last travelled to the country that will be affected by the proposed Tenements in mid to late 2011 as part of our ongoing commitment to look after our country and let it know we still care. We camped there and visited sites described below, in Part 2, and performed various rituals and ceremonies at those sites, as required by the Birdarra Law.
41.To travel to and around the areas that will be affected by the proposed Tenements we use old station tracks, dogging tracks (historically used to trap dingos) and "Yidiya" (the beds of rivers and creeks that are 'freeways'- permanent routes where people are free to travel).
42.Over the past twelve years we and other members of the Yindjibarndi community have been collecting information about sites, stories and songs from all over Yindjibarndi country, including the parts where Croydon Gold wants the Tenements, which we digitise and file in our cultural archive at the Juluwarlu Group Aboriginal Corporation (Juluwarlu). The information we collect is used in books published by Juluwarlu, which describe the fauna and flora in Yindjibarndi country and depict the beauty and significance of our country through photographs, with maps to guide tourists so they don't get lost and stray into areas or sites that are off limits to them, under the Birdarra Law. The information we collect is also used to produce films or documentaries about Yindjibarndi culture and the country Yindjibarndi have occupied for thousands of years; and we broadcast these over Juluwarlu's television station and radio station. In this way we are gradually creating a detailed electronic record of the cultural inheritance of the Yindjibarndi People that we can pass on to our future generations. This is what we consider to be our core business.
43.However, these days it is difficult to continuously carry out our core business, simply because of the demands of mining boom. The Yindjibarndi PBC has agreements with a growing number of corporations, which require Yindjibarndi people to participate in many heritage surveys; and, barely a week passes by without receiving several notices of future acts or applications under section 18 of the WA Aboriginal Heritage Act.
44.Nevertheless, because the native title determination made by the Federal Court in Daniel and Moses, held that the native title of the Yindjibarndi People had been totally extinguished in more than 80% of the area that was the subject of that determination, the Native Title Party and the Yindjibarndi People consider the Yindjibarndi Native Title Area, including those parts where Croydon Gold wants the Tenements, to be a very precious part of our cultural inheritance; and, the Yindjibarndi People, as a community, acting through the Native Title Party, carefully manages and looks after the Yindjibarndi Native Title Area, including those parts where Croydon Gold wants the Tenements, to ensure future generations of the Yindjibarndi People are not further deprived of their cultural inheritance.
Managing and looking after country
45.Managing Yindjibarndi country and making decisions about looking after Yindjibarndi country is a very important community activity for the Yindjibarndi People; and Yindjibarndi people spend a lot of time doing this activity, because the Birdarra Law requires us to do so. The Native Title Party helps the Yindjibarndi community to carry out this activity by organising meetings with people and companies who want to use Yindjibarndi country and then arranging field trips so that the Yindjibarndi can make informed decisions about activities that are proposed to be carried out on our country.
46.Under Birdarra Law, Yindjibarndi country is obliged to produce and share its resources with the Yindjibarndi People, only if we continue to follow the Law by caring for our country and our people in accordance with that Law; and, likewise the Yindjibarndi People are obliged to share the resources of Yindjibarndi country with Manjangu [strangers to Yindjibarndi country] only if they too agree to act in accordance with the Birdarra by caring for Yindjibarndi country and the Yindjibarndi People.
47.When Ngaarda Manjangu (Aboriginal strangers) from neighbouring countries wish to come into Yindjibarndi country, the Tharngu must, in accordance with the Birdarra Law find out who they are and what they intend to do. If their intentions are worthy, we will then do the Binjimagayi ritual to work out how their relationship system fits into our Galharra system. If there is any doubt about their intentions, the Tharngu will insist they do the Binga ritual where we impose a duty to test their character. For example, they might be asked to hunt for, kill, and cook a particular animal for the elders. If they fail to do this the proper way, they might be required to do it again or they might be sent back to their own country. Going through the Binjimagayi ritual and, if necessary, the Binga ritual, guarantees they are fully accepted by Yindjibarndi as related visitors to our community and country because they are now part of our Galharra system and must follow our rules; they now have fathers to watch over them and guide them in Yindjibarndi country and make sure they are safe; and, because they have agreed to act in accordance with the Birdarra Law, we are assured they will honour the reciprocal rights and obligations of the Nyinyadt.
48.Nowadays, Binjimagayi and Binga rituals are still performed during our law time; and, outside of law time Ngaardangarli who wish to visit Yindjibarndi country will ring us and let us know what they wish to do. If they are just passing through there's no problem, but if they want to use the resources of Yindjibarndi country we still need to find out who they are and what they intend to do; and they still need our permission and have to share what they get with us.
49.Sometimes, fitting someone into our Galharra system can be difficult. For example, some years ago, my sister, Roxanne, and my cousin, Jenny, got married- and both of their husbands are whitefellas. Their marriages created a lot of discomfort in the Yindjibarndi community because under our law the boys were Manjangu and in such circumstances no one knew how to relate to them.
50.Every year, after they got married, the Yindjibarndi law bosses would discuss the two boys and what to do about their position in our community. Concerns were raised by initiated men in the Galharra group that had marriage rights with the two women. They complained about how they had been robbed them of the possibility of marriage with the two women; and they wanted to be Mangagji for the two boys (which means allowing them to initiate the boys) because this would result in the men feeling contented in allowing that relationship to continue. Their desire was not to hurt the boys, but to set things right in the community by fitting the boys into our Galharra so that they would then come under the same rules as everybody else. However, the Law bosses wanted to first make sure the boys were fully committed to the women they had married and that they respected our community and our Law. So we waited.
51.The boys themselves were very keen to go through the Law and each year they attended the ceremonies and worked hard on the side to help out. Finally, we put these two boys through the law. Now, under the Birdarra Law, they belong to a Galharra group and we have to treat them accordingly. This does not mean that these boys now have rights in Yindjibarndi country - their wives and children have rights - but what it does mean is that everyone in the community is confident that they will not break our Law, and so the community is at ease.
52.With mining companies, like Croydon Gold, it is not possible to do anything to include them in our Galharra system and the only alternative is an agreed set of principles about how they will relate to Yindjibarndi and how we will relate to them. The Birdarra Law requires us to let them come into our country and requires us to share with them the resources in Yindjibarndi country but only if there is a proper relationship that embraces the principles of Nyinyadt.
53.In the past, a lot of Manjangu have come into Yindjibarndi country without waiting to be invited. They were not properly introduced to our country, no agreements were reached, special places were destroyed and the Birdarra Law was breached. The Yindjibarndi do not want this to continue happening because it has caused a lot of suffering for Yindjibarndi. Justice Nicholson, in the Yindjibarndi Native Title Determination, said that Yindjibarndi is on the cusp of the moment in time when our connection to our country through the Birdarra Law could be washed away by the tide of the whitefella's history. If mining companies are allowed to come into the precious areas where our rights have not been extinguished, without an agreement that respects the Birdarra Law, the suffering will continue; we will drown in that tide and there will be nothing left of our culture.
54.To prevent this, the Yindjibarndi People as a community, carefully manages Yindjibarndi country and tries to make sure every Manjangu who wishes to come into our country agrees to respect the principles enshrined in the Birdarra Law and look after our country and its people. Today, people who do respect our religious beliefs contact the Yindjibarndi PBC to ask about visiting Yindjibarndi country. Sometimes we arrange for Yindjibarndi people to go with them and sometimes we arrange for Yindjibarndi people to tell them where they can safely go and where they should stay away from.
55.In the same way when mining companies want to come into our country, we try always to negotiate relationship agreements with them. These agreements allow us to conduct proper heritage surveys to protect our sites and areas of significance and to check up on the mining companies, especially when they are ready to leave, to make sure they are looking after our country. Yindjibarndi people go out and make sure the mining companies have cleared up and that they have done all the things they agreed to do to look after Yindjibarndi country in the proper way.
56.Managing Yindjibarndi country and looking after it in the way I have described is a community activity that we are required to do under the Birdarra Law; this activity lets Yindjibarndi country know we are still here and we still care; it ensures the country does not dry up and so ensures we can get what we need, when we need it, in order to go on living the proper way, in accordance with the Birdarra Law.
57.If the Native Title Party is not allowed to negotiate an agreement with Croydon Gold, on behalf of the Yindjibarndi People, then we will not be able to undertake this important community activity and properly manage and look after the country where Croydon Gold wants to explore.
Managing and Looking after Special Places in country
58.The most important community activity undertaken by the Yindjibarndi People is looking after sites and areas that are significant to us in accordance with our religious beliefs and law. Looking after these special places, including those in the land and waters where Croydon Gold wants the Tenements, is an important community activity, which we must carry out in accordance with the Birdarra Law because, if we did not do so, we would be breaking our Law and we would suffer.
59.The Yindjibarndi People look after sites and significant areas by ensuring Manjangu who wish to conduct activities on Yindjibarndi country, including the land and waters where Croydon Gold wants the Tenements, are told or shown where they can and cannot go to safely carry out their activities. Sometimes this requires Yindjibarndi people to go out with them to keep them away from our special places. For companies, like Croydon Gold, the Yindjibarndi People, acting through the Yindjibarndi PBC, will always try negotiate an agreement which requires Yindjibarndi people to travel with the miner over our country so we can tell the miner whether it is safe under our Law to do a particular activity in a particular area or whether it would be better to do it in a different place. These agreements make sure our significant sites and areas are managed and protected by Yindjibarndi in the proper way under the Birdarra Law.
60.Looking after our significant sites and areas in Yindjibarndi country is a very important community activity that many Yindjibarndi people spend a lot of time doing. If this community activity is not done or is done badly then bad things can happen to the Yindjibarndi people who, under the Birdarra Law, are held accountable for looking after those significant sites and areas.
61.If the Native Title Party is not allowed to negotiate an agreement with Croydon Gold, on behalf of the Yindjibarndi People, then we will not be able to undertake this important community activity and properly manage and look after our significant sites and areas, as required by the Birdarra Law, in the land and waters where Croydon wants the Tenements.
Part B: Interference with Sacred Sites and Significant Places:
62.The areas where Croydon Gold wants to explore include parts of the two Ngurra mentioned earlier, Gumbarrungunha Ngurra and Winyjuwarra Ngurra. There are many sites, objects and places in the parts of those Ngurra, which will be affected by the proposed Tenements and are of particular significance to the Yindjibarndi People, in accordance with our religious beliefs. Under the Birdarra Law we are obliged to protect these sites, objects and places and are held accountable to the Marrga for their welfare. These sites and special places include all Wundu (watercourses), Yirrgarn (birthplaces), Thungari (burial sites), Yamararra (caves and rockshelters), Thalu (increase sites and healing sites), Marninagrli (rock carvings), Budbungarli (artefacts), Yarna-ngarli (ochre quarries) and Wurrungarli (special hunting hides). These places are inhabited by Marrga and, under the Birdarra Law, a person from the Galharra group that matches each place must first approach to introduce Manjangu.
63.On the map attached as MW-1, Angus Mack and I have depicted the locations of some of these sites; however, it is simply impossible to depict the locations of every sacred site and object in the areas affected by the Tenements because I haven't travelled over every inch over that country; but I know of the existence of the significant sites, objects and places, mentioned above, because of the songs we sing in the Burndud during the Birdarra Law ceremonies. Singing these songs is like travelling through the country and seeing and feeling it, so that if I did want to travel to any particular place, I know could get there. However, without actually going there with a GPS, it is not possible for me to give the precise location of all the sites.
64.The following 19 sites and places, the numbers for which are shown on the map marked MW-1, are in the areas I have visited, on previous occasions, with Thomas Jacob, Stanley Warrie and Angus Mack:
i.Bithirrta is the range of hills, situated in Proposed Tenement E47/2425, which is known to non-Yindjibarndi people as "Mungaroona Range". There is a song for this range that we sing each year in the sacred Yuma song cycle during our Birdarra Law ceremonies, when we put boys through their initiation ceremonies:
Miditha Miditha
Bithirritha Range - Bithirritha Range
Madurngurru madurngurru
Riding on his back- Riding on his back
When we sing this song it puts us in Bithirrta so we can see the country and feel it and Bithirrta can feel us and know we are still here and still care. This is how we massage our country to keep it and us alive. Bithirrta is occupied, used and enjoyed by Yindjibarndi in accordance with our traditional laws and customs and our religious beliefs. The spirits of the Ngurrarangarli reside in that area today, in the Ngurranyujunggamu, and so do our old people, as spirit people. We call them Ngiyalunha, Murdangarli, Nhugangarli, Junangarli, Barringarli, Wandangarli and Marlunghungarli.
The path of the song cycle travels to and around Bithirrtha showing us the journey of the Marrga as they created this range in the Ngurranyujunggamu; and the songs also show us the Marninagrli (rock carvings}, Thalu (increase sites and healing sites}, Yarnangarli (ochre quarries) and Yamarra (caves and rock-shelters) that are in Bithirrtha.
Some of the Yamararra in Bithirrtha, and in the other areas where Croydon Gold wants to explore contain the physical remains of our old Yindjibarndi people; others contain their sacred gear, which they used in ceremonies, and others contain various artefacts and relics which demonstrate the use of the Yamararra as shelters for our old Yindjibarndi people over thousands of years. The Yamararra that contain the sacred gear of our old people are particularly dangerous and should not be disturbed or approached without a senior Yindjibarndi Law man.
We sing the Yamararra each year in the Burndud during our Birdarra Law ceremonies:
Jilali ngarrguma yamayamadula
Soft white, eating this in a cave of comfort
Bulingajuwarri ngajuwarri
In Pleasure of myself-of-myself
ii.Marribiyanha Wundu is situated within Proposed Tenement E47/2422:
Marribiyanha is a Wundu (watercourse) that runs through Bithintha and is one of the Yidiya, I mentioned earlier; where Yindjibarndi and Ngaarda from neighbouring language groups can travel freely, to and from their country, to hunt, trade and participtate [sic] in ceremonies. There are campsites all along this Wundu where our old Yindjibarndi camped and stayed to look after these Ngaarda. Marribiyanha and all the other Wundu (watercourses) and Jinbi (springs) that are situated in the areas where Croydon Gold wants to carry out exploration activities are dangerous places - they are the home of the Barrimirndi (the water serpent that created all the water places in Yindjibarndi country). Whenever I approach a water place in Yindjibarndi country, including those in the proposed Tenements I am required in accordance with the Birdarra Law, to perform a religious ritual called "Wuthurru" and this is what I do and have always done because this is what the Birdarra Law requires me to do. The Wuthurru ritual lets the Barrimirndi and the other Marrga in the area know I am here and that I am related to them because I too am Yindjibarndi. The requirement under the Birdarra Law to perform the Wuthurru ritual applies to all other Yindjibarndi Ngaarda and to all Manjangu (strangers); however, strangers must be introduced by Yindjibarndi Ngaarda.
First, we must talk to the country, in its language:
Ngurra gangnagarrinha yingu buluyugayi birbiwarni wanngayi
thurdud mirda nhantharri bayarri ...
Country we come here today to visit you and talk straight, please don't get angry and harm us...Ngurra nhantharri wanggayi jujungu ngarringu nhurla yindangga
mirdawa nhantharri bayarri.
Country we also ask you to let the Barrimirndi snake who lies here in this pool/watercourse know we are here and ask him don't harm us...Juju yinda yambali gangnagarrinha buluyugayi barni yala
nyinguwayi margurra bami mirda nhantharri bayarri ...
Barrimirndi great snake and boss of this permanent
pool/watercourse we come to visit you, to sit by your side in respect of your laws don't harm us...
Then we pick up a handful of water, from the pool, river or creek, take a sip and spray it back into the water. When Yindjibarndi Ngaarda perform this ritual the Barrimirndi and the Marrga recognise us, as Yindjibarndi and recognise the Manjangu who are with us as related visitors. This keeps us all safe. If we don't do this, we will all be in danger. There are water places in each of the proposed Tenements, including those mentioned below. When Thomas, Stanley, Angus and I visited this place, we performed the Wuthurru ritual to let the country know we were there, that we are related and care and are looking after it in accordance with the Birdarra Law.
iii.Site three, Jinyinnha wundu, is situated within Proposed Tenement E47/2425:
The name of Marribiyanha Wundu changes to Jinyinnha Wundu once it reaches the junction with Biliguthanha Wundu (site 4), which heads out Yaayu (east). From that junction going south, the Marribiyanha Wundu is called Jinyinnha Wundu. Jinyinnha Wundu keeps going up towards Gumbarrungunha (Mt Florence station). The country to the Wuluyu (west) of Marribiyanha Wundu and Jinyinnha Wundu is part of Gumbarrungunha Ngurra.
iv.Site four, Biliguthanha Wundu, which is situated within Proposed Tenement E47/2425, runs into Winyjuwarra Ngurra and down to the bottom of Bithirrtha. Like Marribiyanha Wundu and Jinyinnha Wundu, Biliguthanha Wundu is a Yidiya - a freeway that neighbouring language groups like the Kariyarra can use to travel up for trade or come to participate in our ceremonies.
v.Site five, Mujara Thalu, which is situated within Proposed Tenement E47/2424, is the site for the dingo in the Ngurranyujunggamu. It is where the dingo travelled to and rested when the Laws were given to the Yindjibarndi by the Marrga. We sing a song for Mujara in the Burndud, during the Birdarra Law ceremonies:
Tharla ngawurr ngawurrba
Angry with foam coming from his mouth
Banyji warlbarra warlbarra yugurru
Sitting like a spear thrower this dog
This site allows us to control the number of dingo in Yindjibarndi country. It is also the Yirrgarn (birthplace) for Sylvia Allan.
vi.Site six, Bidiwarrunha Jinbi, is a spring situated within Proposed Tenement E47/2425. There is an old campsite nearby that contains artefacts and relics, demonstrating occupation use and enjoyment by our old Yindjibarndi People.
vii.Site seven, Wirrinyarra Jinbi, is another spring situated in Proposed Tenement E47/2425. And, like at Bidiwarrunha Jinbi, there is an old campsite (site 8) nearby.
viii.Site eight, Bujugandi, is a campsite near Wirrinyarra Jinbi, in Proposed Tenement E47/2425. This is where our old Yindjibarndi people did Nunda ceremonies- dancing for Yindjibarndi country. Bujugandi also contains many artefacts and relics.
ix.Site nine, Buggarngarra Marnda, is a hill situated in Proposed Tenement E47/2426, which was used by our old Yindjibarndi people as a meeting place; and there are old campsites located around the hill with artefacts and relics associated with their use over thousands of years.
x.Site ten, Garduwarla Wundu, is situated within Proposed Tenement E47/2426. There is an old campsite nearby which is used to support Ngarrda who came for meetings and ceremonies. This site contains artefacts and rock art; and we sing this Wundu in the Burndud each year during Birdarra Law ceremonies:
Garruwarlagurru garruwarlagurru
Missed prey on this hill where the man tracked him
Jinamala jina warritha mangaalarnkarri
Got him with my claw now I am a female eagle
xi.Site eleven, Garrawa Wundu, is a watercourse situated within Proposed Tenement E47/2426. There is an old campsite nearby with artefacts and rock art.
xii.Site twelve, Thawarranha Marnda, is a hill, situated within Proposed Tenement E47/2426, where senior Yindjibarndi Law men go to request and, if they are deemed worthy by the country, to receive the power to heal.
xiii.Site thirteen is a Mawarn thalu, situated within Proposed Tenement E47/2426, which is a sacred site used by Mawarnkarra (senior Yindjibarndi Lawmen who have been judged worthy enough to receive the power to heal). The Mawarnkarra conduct religious healing ceremonies using Yarna (ochre) from nearby Yarna-ngarli (ochre quarries).
xiv.Site fourteen, Buwarda Wundu, is situated within Proposed Tenement E47/2426 and runs past Mumbulurnha Mamda (site 15) it is the border of a meeting place on flat country for Yindjibarndi and Kariyarra People.
xv.Site fifteen, Mumbulurnha Mamda, is situated within Proposed Tenement E47/2424 and is a mawarn site of great significance for the Yindjibarndi People. People should not go there, unless in company with a senior Yindjibarndi Lawman who should go first to see if they are accepted. This marnda is the Yirrgarn (birthplace) of Toby Wiliguru also known as Blind Billy (Bambadu). Bambadu was a Nyindirri (a song master) a teacher of Jawi (songs) and Jalurra (dances). He was an important senior Lawman who was given songs, stories and the knowledge from Yindjibarndi country, in the Ngurranyujunggamu, to share with all Yindjibarndi People.
There is a healing Thalu nearby and Yarna-ngarli ochre quarries where ochre is collected for healing ceremonies by Yindjibarndi Mawarnkarra.
xvi.Site sixteen, Tharrilinginya Jinbi, which is situated in Proposed Tenement E47 /2425, is a permanent spring- an important water source for Yindjibarndi people where we perform the Wuthurru ceremony. There is an old campsite nearby along with artefacts and rock art.
xvii.Site seventeen, Buyanha Jinbi, is another permanent spring situated in Proposed Tenement E47/2425; and so, it too is an important water source for the Yindjibarndi people where we perform the Wuthurru ceremony. There is another old campsite nearby and artefacts and rock art.
xviii.Site eighteen, Wanawarranha Wundu, is situated within Proposed Tenement E47/2426, is another important Yidiya for Ngaarda who travel from one country to another. When Ngaardangarli Manjangu (Aboriginal strangers) use these Yidiya they would first seek permission from the Tharngu of the Ngurra they were travelling through.
xix.Site nineteen, Mindin Birna Marnda, which is situated within Proposed Tenement E47/242, is an important natural feature and a registered Aboriginal site.
65.The Yindjibarndi People need an agreement with Croydon Gold to ensure the sites, objects and areas of importance discussed above are properly protected, and that we can continue to freely practice our religious observances, associated with those sites, without undue interference.
66.The Native Title Party disputes any contention which suggests that the Aboriginal Heritage Act of Western Australia (AHA) provides a mechanism for the protection of sites, objects and places that are of significance to the Yindjibarndi People under our traditional laws, customs or religious beliefs. In practice, the AHA has never protected any of our sacred sites, simply because, as the former Minister said in evidence, during a Supreme Court case concerning damage caused by RTIO to Gurrwaying Yinda, a site of great significance to the Yindjibarndi People, the AHA was not intended to give Aboriginal people a veto over development and in its application to specific sites the Minister would never allow it to operate as such. Three documents describe the state of play under the AHA:
a. The Auditor General's Report, of September 2011: "Ensuring Compliance with Conditions on Mining re Compliance", which is attached and marked "130308 NTP Contentions Annexure NTP3" (at 28);
b. An article by the ABC, reporting on the destruction of Yindjibarndi Sites, which is attached and marked "130308 NTP Contentions Annexure NTP4" (at 64); and,
c. The Annual Report of the Department of Indigenous Affairs for 2011 - 2012, which is attached and marked "130308 NTP Contentions Annexure NTP5" (at 73).
67.The following are specific instances in which the AHA failed to protect Yindjibarndi sites of particular significance:
a. As the documentary film "Exile and the Kingdom" demonstrates, the AHA failed to protect Bungarliyarra Thalu and other Yindjibarndi sacred sites, when water was needed for new mining towns in the 1980s and the Government decided to dam Ngurriyn Wundu-Ngarrli (the Harding River).
b. The AHA did not stop RTIO pouring 130,000 cubic metres of rocks and soil into Gurrwaying Yinda, which the Chief Justice of Western Australia described as "a series of permanent pools of considerable natural beauty". The Chief Justice said the ethnographic significance of Gurrwaying Yinda was "obvious"; however, its registration as a site under the AHA, did not result in a prosecution, even though the Chief Justice said the evidence before him "strongly suggested' that, when RTIO filled in Gurrwaying Yinda to create a temporary railway bridge following cyclonic damage, "there may have been a breach of the Act".
c. In the appeals against determinations made by the National Native Title Tribunal, which allowed the first three of FMG's mining leases in Yindjibarndi Country to be granted, the Full Court of the Federal Court said the Yindjibarndi case:
"was considered by the Tribunal and the primary judge on the basis that the appellants' use of ochre and gandi are religious practices. This approach has not been contested by the Slate or FMG. Further, if the ochre and gandi sites are dug up in the process of mining iron ore, the appellants will be prevented from continuing to access the ochre and gandi."
Yindjibarndi argued that there were Yarna-Ngarrli (ochre quarries) and a Gandi (sacred stones) place, situated in and near an eastern branch of Ganyjingarringunha Wundu (Kangeenarina Creek), which were sacred to us and used for religious ceremonies; that there were also hundreds of Yamararra (caves and rock-shelters) overlooking the Wundu, some of which held the physical remains of our old people and others, their sacred gear; and, that the mining leases would destroy these sites and prevent us from continuing to practice our ceremonies at them. The Tribunal and the Court accepted they were sites of particular significance but said the grant of the mining leases couldn't damage the sites or stop our religious practices because the sites would be protected by the AHA; however, when FMG made an application to damage sites in that area, which included Yamararra and Yarna-Ngarrli sites, so they could develop a "Priority Mining Area", the Minister gave his consent; and the only protection given to our sites were conditions requiring FMG to consult with YAC to identify a large number of sites, which YAC said would be destroyed if the development went ahead but had not been included in FMG's application. FMG appealed to the State Administrative Tribunal (SAT) to have those conditions deleted; YAC's application to be joined as a party to the SAT appeal was refused; and, in mediation with FMG alone, the Minister agreed to delete those conditions. A copy of the submissions made on behalf of YAC to the Commonwealth Department of Sustainability, Environment, Water, Population and Communities, seeking a Protection Order for those sites, under section 10 of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which accurately sets out the record of what happened under the AHA in respect of these sites, is attached and marked as "130308 NTP Contentions Annexure NTP6" (at 219). I've not included the annexures to that document because the relevant parts are set out in the submissions; however, the annexures can be provided if required.
d. The same outcome followed in respect of Ganyjingarringunha Wundu (Kangeenarina Creek), the place where the sacred stones are collected by Yindjibarndi lawmen, which FMG wished to use for the development of the ''Firetail Conveyors and Trinity Tailings Storage Facility. In this instance, the Aboriginal Cultural Materials Committee (ACMC), acted on the advice of its specialist anthropologist, Michael Robinson, who told the ACMC that Kangeenarina Creek had a song and story associated with it that was central to Yindjibarndi Religious beliefs. The ACMC recommended and the Minister attached a condition prohibiting any ground disturbing work in the floodplain of Kangeenarina Creek; however, FMG then appealed to the SAT to have that condition deleted; and, in mediation, the Minister agreed to delete it. A copy of the submissions made on behalf of YAC to John Waters, the Barrister appointed by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities, under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, to conduct an inquiry into the significance of the area, which accurately sets out the record of what happened under the AHA in respect of Ganyjingarringunha Wundu (Kangeenarina Creek), is attached and marked "130308 NTP Contentions Annexure NTP7" (at 229). I've not included the annexures to that document because the relevant parts are set out in the submissions; however, the annexures can be provided if required.
68.In practice, under the AHA, the ongoing development of the mining industry in Yindjibarndi country is considered far more important than the preservation of our sacred sites.
Major Disturbance
69.Many of the significant sites and places discussed above are associated with particular religious rituals or ceremonies which we are required to perform under the Birdarra Law, to keep our country and our culture alive. If those sites and places are destroyed, it will no longer be possible to carry out these rituals and ceremonies. It is this kind of destruction that brought us, as a society, to the moment described by Justice Nicholson, where the tide of the history could wash away our laws and customs. The grant of the Tenements will permit Croydon Gold to undertake its exploration activities on Yindjibarndi country without our agreement. It will give Croydon Gold control over the management of our country and our cultural heritage in that country.
70.Today, there is barely a square kilometre of Yindjibarndi country that is not covered by either existing mining tenements or by pending applications for mining tenements. Considered as a whole, the potential consequences for Yindjibarndi culture are devastating; and this is a major disturbance as far as the Yindjibarndi are concerned, because the inevitable outcome will be the destruction of our culture.
71.The Yindjibarndi are held to account for everything that happens in Yindjibarndi country. It doesn't matter that we are sometimes powerless and can't stop it. If something breaks the Birdarra Law, we suffer. This has happened so often in the past that it has made the Yindjibarndi weaker than we should be. We want to stop it happening again. Allowing the Native Title Party to negotiate an agreement with Croydon Gold, which is respectful of our culture, will ensure this does not continue to happen.
ATTACHEMENT THREE: AFFIDAVIT OF NED CHEEDY
I, NED CHEEDY, pensioner, of 577 Andover Way Roebourne, in the State of Western
Australia, make oath and say as follows:1.I am the grandson of Jinaguduthu and Wiralbangu on my father's side; and of Gurgagawarn and Yikarrbangu on my mother's side. My Aboriginal name is Manyarnbangu but I am also known as “Cheedy Ned" and ''Ned Cheedy".
2.I am 105 years of age and “Nyambali" for Yindjibarndi because I am the last of the old Yindjibarndi Law Bosses. I gave evidence to the Federal Court, in the Ngarluma and Yindjibarndi hearing, about where I was born and about Yindjibarndi People and our Law and culture and I am making this affidavit now because I might not be around for much longer.
3.I went through all the Yindjibarndi Law ceremonies a long time ago. I put Michael Woodley's grandfather, Woodley King, through his Birdarra Law ceremonies; and I also put Michael Woodley through all the Birdarra Law Ceremonies. Together with his grandfather, and the other old Yindjibarndi Law Bosses who have now passed on, I taught Michael Woodley everything we know about Yindjibarndi country, and about Yindjibarndi Law, culture and religion.
4.Michael Woodley is Thamgu for Garliwinyji Ngurra, which includes Gambulanha and Ganyjingarringunha Ngurra where FMG wants the Solomon mine, and he is also the proper man to speak for Yindjibarndi Country and for Yindjibarndi Law, culture and religion because he is now the man with all the knowledge. Michael still comes to talk to me about these things, out of respect; but, today, Yindjibarndi people and others should listen to and respect what Michael Woodley says about Yindjibarndi Country and about Yindjibarndi Law, culture and religion, because when he speaks about these things, he is speaking for me and for all the other old Law Bosses who came before me.
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