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									NATIONAL NATIVE TITLE TRIBUNAL
Cyril Gordon and Ors on behalf of the Kariyarra People/Western Australia/BHP Billiton
Minerals Pty Ltd, [2011] NNTTA 157 (4 August 2011)

Application No:            WO10/1101, WO10/1487 & WO10/1488


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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Cyril Gordon and Ors on behalf of the Kariyarra People (WC99/3) (native title party)

- and -

The State of Western Australia (Government party)

- and -

BHP Billiton Minerals Pty Ltd (grantee party)


DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE
EXPEDITED PROCEDURE

Tribunal:                  Ms Helen Shurven
Place:                     Perth
Date:                      4 August 2011

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited
procedure objection applications – whether act is likely to interfere directly with the carrying
on of community or social activities – whether act is likely to interfere with sites of particular
significance – whether act is likely to cause major disturbance to land or waters – expedited
procedure not attracted

Legislation:               Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237
                           Mining Act 1978 (WA)
                           Aboriginal Heritage Act 1972 (WA)
Cases:                     Butcher Cherel and Ors on behalf of the Gooniyandi Native Title
                           Claimants/Western Australia/Faustus Nominees Pty Ltd [2007]
                           NNTTA 15
                           Champion v Western Australia and Another (2005) 190 FLR 362
                           [2005] NNTTA 1
                           Dora Sharpe and Others and Ashburton Minerals and Ripplesea
                           Pty Ltd and WA [2004] NNTTA 31
                                           2



                         Doris Ryder & Others on behalf of Lamboo People/Western
                         Australia/Alan Neville Brosnan and Phyllis Marie Brosnan
                         [2010] NNTTA 15
                         Hughes v State of Western Australia and Another (2003) 182 FLR
                         362; [2003] NNTTA 69
                         Jango and Others v Northern Territory and Others (2006) 152
                         FCR 150; [2006] FCA 318
                         Les Tullock and Others on behalf of the Tarlpa Native Title
                         Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
                         Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576;
                         (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
                         Maitland Parker and Others on behalf of Martu Idja
                         Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA
                         65
                         Neowarra v Western Australia [2003] FCA 1402
                         Northern Territory of Australia v Alyawarr, Kaytetye,
                         Warumungu, Wakaya Native Title Claim Group and Another
                         (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135
                         Parker on behalf of the Martu Idja Banyjima People v State of
                         Western Australia [2007] FCA 1027
                         Parker v Western Australia and Others (2008) 167 FCR 340;
                         (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23;
                         [2008] ALMD 5175
                         Rosas v Northern Territory of Australia and Another (2002) 169
                         FLR 330; [2002] NNTTA 113
                         Rubibi Community v Western Australia (No 5) [2005] FCA 1025
                         Silver and Others v Northern Territory of Australia and Others
                         (2002) 169 FLR 1; [2002] NNTTA 18
                         Walley and Others v Western Australia and Another (2002) 169
                         FLR 437; [2002] NNTTA 24


Representatives of the   Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation
native title party:      Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

Representatives of the   Mr Domhnall McCloskey, State Solicitor’s Office
Government party:        Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the
grantee party:           Mr Chris Clegg, Statewide Tenement & Advisory Services Pty Ltd
                                               3


REASONS FOR DETERMINATION

[1]    On the following dates, the Government party gave notice under s 29 (‘s 29
notification’) of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the
following exploration licences (‘the proposed licences’) to BHP Billiton Minerals Pty Ltd
(‘the grantee party’) and included in its notice a statement (‘expedited procedure statement’)
that it considered the grants attracted the expedited procedure (that is, one which can be done
without the normal negotiations required by s 31 of the Act):

          21 April 2010 – E47/1626 comprising an area of 224.5 square kilometres located
           47 kilometres north-east of Roebourne in the Shire of Port Hedland Town;

          14 July 2010 – E45/2833 comprising an area of 224.65 square kilometres located
           34 kilometres west of Port Hedland in the Shire of Port Hedland Town; and

          14 July 2010 – E45/2834 comprising an area of 224.71 square kilometres located
           13 kilometres south-west of Port Hedland in the Shire of Port Hedland Town.

[2]    Each of the proposed licences are entirely within the native title claim of the Kariyarra
People (WC99/3 - registered from 22 April 1999).

[3]    On the following dates, the Kariyarra People (the native title party) made expedited
procedure objection applications to the Tribunal in respect of the proposed licences:

          9 August 2010 in respect of E47/1626 (designated Tribunal application
           WO10/1101);

          9 November 2010 in respect of E45/2833 (designated Tribunal application
           WO10/1487); and

          9 November 2010 in respect of E45/2834 (designated Tribunal application
           WO10/1488).

[4]    On 30 August 2010 and 13 December 2010 respectively, Hon C J Sumner was
appointed as the Member for the purpose of conducting the inquiry into these applications. In
accordance with standard practice the Tribunal gave directions to parties to provide
contentions and evidence for an inquiry to determine whether or not the expedited procedure
is attracted for each of the applications. The directions allow a period from the s 29 closing
date (21 August 2010 and 14 November 2010 respectively) for the lodgement of objections,
                                               4


for parties to discuss the possibility of reaching an agreement which could lead to disposal of
the objection by consent.

[5]    During the course of conferences held by the Tribunal, the native title party and the
grantee party advised that prior to the s 29 notification, they had requested the Government
party not include the expedited procedure statement. Both the native title party and the
grantee party agreed that the area in which the proposed licences were located contained sites
of particular significance to the native title party and advised that regional negotiations were
underway between the parties in respect of the proposed licences and a number of other
tenements applied for by the grantee party. The grantee party in particular raised concerns
that the Government party’s ‘one size’ policy of including the expedited procedure statement
in s 29 notification of exploration and prospecting licences could jeopardize the existing
relationship between the grantee and native title parties.       Both parties agreed that the
expedited procedure should not apply to the proposed licences and requested the Government
party give consideration to a consent determination. The Government party requested the
matters proceed to an inquiry. It does not appear that the Government party offered to
withdraw the expedited procedure statement at any stage of the proceedings.

[6]    Following a number of amendments to directions, the Government party, the grantee
party and the native title party lodged their contentions and evidence within time by 18 April
2011, 9 May 2011 and 7 June 2011 respectively. The native title party lodged the signed
statements of Elsie Williams and Lena Alone and their supplementary contentions on 16 June
2011 and I am prepared to accept that evidence as the Tribunal is not bound by the rules of
evidence (s 109(3) of the Act) and there were no objections from the other parties in relation
to this evidence.

[7]    Parties agreed at a listing hearing on 16 June 2011 that the inquiry could be
determined ‘on the papers’, that is, without holding a further hearing.

[8]    On 23 June 2011, I was appointed by Hon C J Sumner as the Member for the purpose
of conducting the inquiry. I am satisfied that the objections can be adequately determined on
the papers (as per s 151(2) of the Act).
                                                       5


Legal principles

[9]    Section 237 of the Act provides:

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


[10]   In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002]
NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-
449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

[11]   In relation to the nature of an exploration licence including conditions to be imposed,
I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title
Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

[12]   With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel
Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf
of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the
Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s
decision in Maitland Parker. This decision was then appealed to the Full Federal Court and
in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and
Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23;
[2008] ALMD 5175).

[13]   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 or create rights which might
entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146
FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The
correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at
                                            6


588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that
major disturbance should be determined by reference to what could be done rather than what
was likely to be done.

Evidence in relation to the proposed acts

[14]   Government party documentation establishes the underlying land tenure of the
proposed licences to be as follows:

E47/1626

          Mundabullangana Pastoral Lease 3114/517 (49.3 per cent);

          Vacant Crown Land (totalling approximately 36 per cent);

          Common Reserve 9701 - De Grey Mullewa Stock Route (2.1 per cent);

          Common Reserve 1541 - Watering place (0.3 per cent);

          Common Reserve 46953 - Government requirements (0.1 per cent);

          Common Reserve 46954 - Government requirements (0.1 per cent); and

          Two Road Reserves (less than 0.1 per cent each).

E45/2833

          Vacant Crown Land (totalling approximately 33 per cent);

          Boodarie Pastoral Lease 3114/618 (12.2 per cent);

          Mundabullangana Pastoral Lease 3114/517 (7.2 per cent);

          Boodarie Pastoral Lease 398/794 (7 per cent);

          Common Reserve 9701 - De Grey Mullewa Stock Route (5.2 per cent);

          Common Reserve 1501 - Watering place (0.5 per cent); and

          Two Road Reserves (less than 0.1 per cent each).

E54/2834

          Vacant Crown Land (totalling approximately 63 per cent);

          Boodarie Pastoral Lease 3114/618 (27.1 per cent);

          Common Reserve 9701 - De Grey Mullewa Stock Route (6.9 per cent);
                                              7


          Water Reserve 81 (0.7 per cent);

          Common Reserve 1501 - Watering place (0.7 per cent);

          General Lease I126342 (0.5 per cent);

          General Lease J998595 (0.4 per cent);

          Port Hedland Townsite (0.4 per cent);

          Common Reserve 50399 – Port purposes (0.3 per cent);

          Common Reserve 30909 – Recreation (0.3 per cent);

          Aquaculture and Pearling Licence/Lease 327 (0.2 per cent);

          General Lease J998591 (0.2 per cent);

          Common Reserve 26435 – Protection of river crossing (0.1 per cent);

          General Lease I123403 (less than 0.1 per cent);

          General Lease G946533 (less than 0.1 per cent);

          Three Road Reserves (less than 0.1 per cent each); and

          Common Reserve 50528 – Harbour purposes (less than 0.1 per cent).

[15]   With respect to E47/1626, the documentation indicates one previously granted
exploration licence overlapping at 0.2 per cent, granted in 1994 and surrendered in 1997, and
no current exploration or mining activity.          A number of minor roads, tracks,
springs/soaks/rockholes/waterholes, mangrove boundaries, non perennial/perennial lakes and
watercourses, well/bores, yards, fences and buildings are also noted.        Department of
Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals three
registered Aboriginal sites and two Heritage Places under the Aboriginal Heritage Act 1972
(WA) (‘AHA’) within E47/1626: four are described as ‘Skeletal material/Burial’ (one being a
closed access site) and one as a ‘Named Place’ being Yule River (Kakurka).

[16]   With respect to E45/2833, the documentation indicates no previously granted
tenements and one current miscellaneous licence overlapping at 15.1 per cent. A number of
minor roads, tracks, springs/soaks/rockholes/waterholes, non perennial/perennial lakes and
watercourses, yards, a well/bore and a fence are also noted. Department of Indigenous
Affairs (‘DIA’) documentation provided by the Government party reveals one registered
Aboriginal site and two Heritage Places under the AHA within E45/2833: the Aboriginal site
                                                 8


is described as ‘Engraving’ and the two Heritage ‘Named Place[s]’ are Yule River (Kakurka)
and Turner River (Tjirrlil).

[17]   With respect to E45/2834, the documentation indicates four previously granted
mining leases, granted between 1985 and 1996 and all surrendered by 2000, and one
previously granted mineral claim, granted in 1957 and surrendered within the same year,
which overlap at no more than 0.1 per cent each.             Many current tenements surround
E45/2834 with minimal overlap: 57 general purpose leases and one amalgamated lease
overlapping at less than 0.1 per cent each, 3 current miscellaneous licences at no more than
0.1 per cent each, one miscellaneous licence at 4.2 per cent, 7 mining leases at no more than
0.1 per cent each, and one mining lease at 0.5 per cent.            A number of roads, tracks,
springs/soaks/rockholes/waterholes, mangrove boundaries, non perennial lakes and
watercourses, yards, well/bores and fences are also noted, as well as some infrastructure and
mining pits associated with either the current mining tenure or the Town of Port Hedland
(presumably with minimal overlap given the underlying tenure noted above). Furthermore,
numerous File Notation Areas (FNAs) overlapping E45/2834 are noted, managed by the
Departments for Mines and Petroleum, Planning and Infrastructure, Regional Development
and Lands, State Development and Fisheries, as well as the Town of Port Hedland and the
Port Hedland Port Authority. For the majority of these FNAs, no further details are given
with the exception of three: a proposed redevelopment of Fuel Depot (0.1 per cent overlap);
proposed Port Hedland to Roy Hill railway (1.6 per cent overlap) and an aquaculture site
application (0.1 per cent overlap). Department of Indigenous Affairs (‘DIA’) documentation
provided by the Government party reveals 107 registered Aboriginal sites and 57 Heritage
Places under the AHA within E45/2834. The majority of sites are described as ‘Engraving’
‘Midden/Scatter’    and/or     ‘Artefacts/Scatter’   (one   is   also   described   as   ‘Skeletal
material/Burial’ and two are closed access). Four ‘Ceremonial’ or ‘Mythological’ sites are
also noted, one being open access and the remaining are closed access. The majority of
Heritage Places are described as ‘Midden/Scatter’, one as ‘Skeletal material/Burial’, two as
‘Camp, Hunting place’, one as ‘Ceremonial, Mythological, Meeting Place, Camp, Named
Place’, one ‘Named Place’ being Turner River (Tjirrlil), and one water source, Piparnnya.

[18]   Tribunal mapping shows no Aboriginal communities inside the area of the proposed
licences. The nearest Aboriginal communities are Kaparrkurra, located approximately 25
kilometres south of Port Hedland townsite (and approximately 25 kilometres south east of
                                                       9


E45/2834) and Tkalka and Boorda, located within the townsite (and approximately five
kilometres east of E45/2834). The community of Yanderyerra referred to in some of the
native title party evidence is approximately 120 kilometres south of Port Hedland and a song
is said to follow its course from on or near E47/1626 (see Donny Wilson’s statement dated 26
May 2011).

[19]   Draft Tenement Endorsement and Conditions Extracts included in the Government
Party documentation indicate the grant of the proposed licences intend to be subject to the
standard four conditions imposed on the grant of all exploration licences in Western Australia
(see Tarlpa at [11]) and that they will have the following two further conditions in common:

       ‘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 Licencee,
             advise, by registered post, the holder of any underlying pastoral or grazing lease details
             of the grant or transfer.’


Further conditions specific to each proposed licence are as follows:

E47/1626

       ‘7.   No interference with Geodetic Survey Station SSM - R 131 and mining within 15
             metres thereof being confined to below a depth of 15 metres from the natural surface.
       8.    Mining within a radius of 150 metres of any Australian Telecommunications
             Commission microwave repeater station being confined to below a depth of 60 metres
             from the natural surface.
       9.    No interference with the Australian Telecommunications Commission microwave
             repeater station ray-line.
       10. The prior written consent of the Minister responsible for the Mining Act 1978 being
           obtained before commencing any exploration activities on Watering Place Reserve 1541
           and Seabed, Foreshore and Navigable Waters.
             Consent to explore on De Grey Mullewa Stock Route Reserve 9701 granted subject
             to the following additional condition:
       11. No exploration activities being carried out on De Grey Mullewa Stock Route Reserve
           9701 which restrict the use of the reserve.’
                                                   10


E45/2833

      ‘7.   The prior written consent of the Minister responsible for the Mining Act 1978 being
            obtained before commencing any exploration activities on Watering Place Reserve
            1501, Foreshore, Seabed and Navigable Waters.
      8.    The rights of ingress to and egress from Miscellaneous Licence 45/158 being at all
            times preserved to the licensee and no interference with the purpose or installations
            connected to the licence.
      9.    No interference with Geodetic Survey Station SSM-Roebourne 83 and mining within 15
            metres thereof being confined to below a depth of 15 metres from the natural surface.
            Consent to explore on Stock Route Reserve 9701 granted subject to:
      10. No exploration activities being carried out on Stock Route Reserve 9701 which restrict
          the use of the reserve.’

E45/2834

      ‘7.   The prior written consent of the Minister responsible for the Mining Act 1978 being
            obtained before commencing mining on Watering Place Reserve 1501, Protection of
            River Crossing Reserve 26435, Recreation Reserve 30909, Port Purposes Reserve
            50399, Foreshore, Sea Bed and Navigable Waters.
      8.    The rights of ingress to and egress from Miscellaneous Licences 1 SA, 45/129, 45/158
            and 45/199 being at all times preserved to the licensee and no interference with the
            purpose or installations connected to the licence.
      9.    No interference with Geodetic Survey Station SSM-PA 21 and SSM-Port Hedland 10
            and mining within 15 metres thereof being confined to below a depth of 15 metres from
            the natural surface.
      10. No mining on a strip of land 60 metres wide with the Port Hedland-Goldsworthy
          Railway Line as the centreline and no materials being deposited or machinery or
          buildings being erected on such strip of land.
      11. Blasting operations being controlled so that no damage or injury can be caused by fly
          rock, concussion, vibration or other means.
      12. No activities being carried out within the proposed railway corridor (designated FNA
          8271, FNA 8704 and FNA 9071 ) [sic] that interfere with or restrict any rail route
          investigation activities being undertaken by the rail line proponent.
            Consent to conduct exploration activities on De Grey-Mullewa Stock Route
            Reserve 9701 granted subject to:
      13. No exploration activities being carried out on De Grey-Mullewa Stock Route Reserve
          9701 which restrict the use of the reserve.
            Consent to conduct exploration activities on Turner River Water Reserve granted
            subject to:
      14. Written notification, where practicable, of the time frame, type and extent of proposed
          ground disturbing activities being forwarded to the Department of Water Karratha seven
          days prior to commencement of those activities.
      15. Any significant waterway (flowing or not), wetland or its fringing vegetation that may
          exist on site not being disturbed or removed without prior written approval from the
          Department of Water.
      16. The rights of ingress to and egress from the Licence being at all reasonable times
          preserved to officers of the Department of Water for inspection and investigation
          purposes.
                                                     11


       17. The storage and disposal of hydrocarbons, chemicals and potentially hazardous
           substances being in accordance with the Department of Water’s Guidelines and Water
           Quality Protection Notes.
       18. All proposed exploration activities within Public Drinking Water Source Areas
           complying with the Department of Water’s Water Quality Protection Note Land Use
           Compatibility in Public Drinking Water Source Areas.
       19. All Mining Act tenement activities within Public Drinking Water Source Areas being
           prohibited unless the prior written approval has been obtained from the Department of
           Water.
       20. All Mining Act tenement activities are prohibited within 2 kilometres of the maximum
           storage level of a reservoir including the reservoir itself, unless the prior written
           approval of the Department of Water is first obtained.
       21. Storage and use of hydrocarbons and potentially hazardous substances requiring the
           prior written approval or appropriate permits from the Department of Water.
       22. All hydrocarbon or other pollutant spillage being reported to the Department of Water.
           Remediation being carried out to the satisfaction of the Department of Water.
       23. All Mining Act tenement activities are prohibited within a 300-metre radius of any
           observation well in a Public Drinking Water Source Priority P1, P2, & P3 Areas unless
           the written approval of the Department of Water is first obtained.
       24. All Mining Act tenement activities are prohibited within a 500-metre radius in a P1
           Area or a 300-metre radius in a P2 or P3 area of any Public Drinking Water Source
           production well or dam, unless the written approval of the Department of Water is first
           obtained.’

[20]   The Draft Tenement Endorsement and Conditions Extracts also note the following
two endorsements for each proposed licence (which differ from conditions in not making the
licensee liable to forfeiture of the proposed licence for their breach):

       ‘1.   The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972
             and any Regulations thereunder.
       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.’
Four further endorsements are included for E45/2834:

       ‘3.   The land the subject of this Licence may affect a heritage place located in the Port
             Hedland townsite, registered pursuant to the Heritage of WA Act 1990.
       4.    The Licensee’s attention is drawn to the existence of a licence for dewatering pipeline
             granted pursuant to section 91 of the Land Administration Act 1997 and which is shown
             designated as FNA 7598 in TENGRAPH.
       5.    The Licensee’s attention is drawn to the provisions of:
                  Water and Rivers Commission Act 1995 and any Regulations thereunder.
       6.    The Licensee’s attention is drawn to the provisions of:
                 Country Areas Water Supply Act 1947 and any Regulations thereunder; and
                 Metropolitan Water Supply Sewerage and Drainage Act 1909 and any
                    Regulations thereunder.’
                                                       12


[21]     Government contentions (at 5e), indicate that a condition (the RSHA condition) will
be imposed on each proposed licence in the following terms:

         ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the
         Kariyarra People, the applicants in Federal Court application no. WAD6169 of 1998
         (WC99/3), such request being sent by pre-paid post to reach the Licensee's address, c/-
         Statewide Tenement & Advisory Services Pty Ltd, PO Box 8095 Perth Business Centre,
         Perth WA 6849 not more than ninety days after the grant of this licence shall within thirty
         days of the request execute in favour of the Kariyarra People the Regional Standard Heritage
         Agreement (“RSHA”) endorsed by peak industry groups and Pilbara Native Title Service.’


Native title party evidence and contentions

[22]     The evidence of the native title party includes their contentions and supplementary
contentions, as well as the:

        Signed and witnessed statement of Imogen Dexter dated 10 May 2011;

        Affidavit of Donny Wilson sworn 26 May 2011;

        Affidavit of Rayleen Gordon signed 7 June 2011;

        Signed statement of Lena Alone dated 10 June 2011; and

        Signed statements of Elsie Williams dated 10 June 2011.

[23]     The statement of Imogen Dexter is as follows:

         ‘I, Imogen Dexter of 5 Delamere Place, South Hedland in the State of Western Australia,
         Anthropologist, hereby solemnly and sincerely declare as follows:
         1.   I am an anthropologist with first class Honours from Monash University, Melbourne. I
              have attained specialized knowledge of Australian Aboriginal cultures and history
              through my studies at Monash with majors in both anthropology and Australian
              Indigenous studies and my employment at Yamatji Marlpa Aboriginal Corporation
              since February 2011.
         2.   A significant part of my work with YMAC involves ethno-historical research, recording
              Aboriginal heritage sites and interviewing people about their law and customs for native
              title and heritage protection purposes.
         3.   During the course of my employment I have considered both historical research
              materials and research materials conducted by external researchers and other
              anthropologists engaged by YMAC regarding the Kariyarra people. Through this
              consultation I have gained knowledge of Kariyarra sites, genealogies and laws and
              customs.
         4.   Unless otherwise stated, all of the matters contained in this affidavit are within my own
              knowledge and are true and correct based upon my research and informed opinion as an
              anthropologist.
         5.   In regards to the exploration licenses that BHP Billiton holds over the tenements
              E47/1626, E45/2833 and E45/2834 I have conducted desktop research as well as
              speaking with the Kariyarra people about importance of the area. All three sites have
                                                     13


            many registered sites both of ethnographic and archaeological importance. People have
            occupied the coastal Pilbara for at least 32,000 years (Morse, 1993; Jackson and
            Bunting, 2006). Consequently extensive insight into patterns of human behaviour can
            be learnt from the Aboriginal sites and the cultural material found within the area. The
            Kariyarra believe as does the wider Aboriginal Pilbara community that the engravings
            were made in the dreaming by ancestral beings (Vinnicombe, 2002). These sites hold
            significance not only for the Kariyarra, and the wider Aboriginal community but also
            for Australia. The engraving at two mile ridge in Port Hedland depict [sic] the natural
            resources of the area and are a permanent record of for [sic] the Kariyarra of the food
            available. Furthermore the engravings are more than merely stories for the Kariyarra
            they represent who they are, their heart, spirituality and homeland (Morgan and
            Kwaymullina 2007). There are also important increase sites within these areas, which
            the Kariyarra believe help keep the amount of a particular resource plentiful. In
            addition the two rivers within the tenements, the Yule River and the Turner River are
            considered scared [sic] to the Kariyarra as they are a dreaming track and people believe
            that the snake lives there.
       6.   It is my expert opinion that any disturbance in these areas would have a negative impact
            on the traditional culture and beliefs of the Kariyarra people.’

[24]   The statement of Elsie Williams is as follows:

       ‘I Elsie Williams, of 11 Rutherford St, South Hedland in the state of Western Australia say as
       follows:
       1.   I am a senior Kariyarra woman. I was born at Munda station which is in tenement
            E47/1626. I have a lot of knowledge of the surrounding area including tenement
            E45/2833 because I grew up there and my brother was considered the boss for all that
            country.
       2.   Unless stated otherwise, I make this statement on the basis of facts within my own
            knowledge and where I rely on facts outside my personal knowledge I have identified
            the source of those facts and believe them to be true.
       3.   Imogen Dexter the in house anthropologist for Yamatji Marlpa Aboriginal Corporation
            has shown me the map of the two tenements E47/1626 and E45/2833, which are
            annexed to this statement. The area has a lot of significant sites.
       4.   The Yule River is particularly important because we believe that the snake lives there.
            Kariyarra call the river Kakurrka. People used to walk up and down the river in the
            past, telling stories, collecting bush food and medicine. We would hunt kangaroo, bush
            turkey and emu. We could catch bream salmon [sic] and catfish, also we would collect
            cockle shells, oysters and nangka (a type of shellfish). There is a song that travels
            through both tenements and heads towards Port Hedland. This song is important
            because it maps the land. My brother used to sing it. If the country is changed and dug
            up by BHP the song might not recognize [sic] the land. This would be very sad for the
            Kariyarra because our songs were put there in the dreamtime by our ancestors and we
            want them to be there for our children.
       5.   There is an important men’s site there; I don’t know too much about that but my brother
            went through law there, but it is on the small creek near Munda station on the left when
            you drive in. That place is very dangerous only men who have been through law can go
            there. There are scatters around that law ground and those stones are very powerful-
            you can’t touch them. If you pick them up you will get sick and maybe die. If people
            go there and mess around the Kariyarra could get sick.
       6.   Many women had babies around there and that is important because they got their name
            from the country- their totem. I was born there so the country is very important for me
            and there is strong connection to the physical land.
       7.   It is also an important meeting place for the Kariyarra as many people stopped there for
            work and corroborees. Many old people are buried around there and those places are
            sacred to us. There is a graveyard there and we need to protect it, so our ancestors can
            be at peace; we don’t want people digging where they shouldn’t dig.
                                                       14


       8.    In the past many Kariyarra and other Aboriginal groups lived there: Njamal, Ngarla,
             Palyku, Bunjima and others. We used to have ceremonies and go fishing camping [sic]
             and hunting along the coast. The country provides us with many things: bush food and
             medicine. One bush medicine we collected from around Munda was the sap from a
             tree. We would boil it in water and then drink it- it helps you if you are sick. It makes
             you strong.
       9.    It is also an important place for us to teach our kids about our culture and country. This
             is where I learnt from the old people, when we lived off the land. I leant the stories and
             the right food to eat. If people want to visit this country they must first come and ask
             us. This protects us, them and the country.
       10. We used to take our kids out there but now it is hard because the manager of Munda
           station restricts access. We have been negotiating a deal with the manager of Munda
           station, so the Kariyarra can have access to the land, but if BHP gets these tenements it
           will affect our deal and make it even harder to get to these tenements. We want to go
           out and check that the country is OK, we teach our kids that way. Now we only teach
           our kids about the country from stories but if we can use the country again then we can
           teach them the proper way, because when we are out on country we feel the power and
           the memories become strong. Our kids can see that. We take care of the country now
           by dreaming about it and telling the stories but the best way is to be there.
       11. If the tenure was granted there could be many problems for Kariyarra. It is important
           country and we must protect it. If we don’t protect it properly many bad things could
           happen. We won’t be able to teach our kids about country which would destroy our
           culture.’
[25]   The affidavit of Donny Wilson is as follows:

       ‘1.   I, Donny Wilson, of Jimparinya Commuinty [sic], Port Hedland, in the state of Western
             Australia, Deputy Regional Manager (Pilbara), Yamatji Marlpa Aboriginal Corporation
             (YMAC) 3 Brand Street South Hedland, say as follows:
       2.    I am 51 years of age and I am a Karriyarra Senior Man. I live at Jimparinya
             Community, which is approximately 40 kilometers [sic] out of Port Hedland.
       3.    Unless stated otherwise, I make this affidavit on the basis of facts within my own
             knowledge and where I rely on facts outside my personal knowledge I have identified
             the source of those facts and believe them to be true.
       4.    I make this affidavit in response to the Application under the Expedited procedure for
             the grant of tenements E47/1626 and E45/2833 to the Grantee Party, BHP Billiton, by
             the Government Party, the State of Western Australia. The YMAC in house
             anthropologist Imogen Dexter has shown me a map of the location of tenements
             E47/1626 and E45/2833.
       5.    My mother and my maternal grandmother were born at Munda station which is located
             near tenement E47/1626. My maternal uncle was the boss for that area around Munda
             station including the country on tenement E47/1626 and partly on E45/2833.
       6.    The country on these tenements has many significant sites. There is a large law ground
             to the south of Munda station where some old people went through law including all my
             maternal uncles. It is a very significant site and a very sacred place for the Kariyarra,
             but it is also a dangerous place. Women, children and men who have not been through
             law cannot go there. We need to protect it to keep the people and country safe. We still
             remember this country and try to keep it safe that way. Some people dream about this
             area and take care of it that way. The Marlpa word for it is Kapulkarri: ( ie [sic] astral
             travel).
       7.    This country is very importance [sic] for us – it is people’s feeling. My mother was
             born out there, born bush, so that country is very significant for our family. If she could
             go out there she could tell us many stories. We would like to go out and check that the
             country is safe but we can’t because of the Munda pastoral station.
                                                      15


       8.    There are many important and significant sites on these tenements especially along the
             Yule and Turner Rivers. Many old people used to walk along the Yule River, using the
             river for water, shade and hunting, fishing and collecting food and bush medicine along
             its banks. They would hunt kangaroo, emu, bush turkey and goanna. They would also
             collect nuts and fruits for eating and red sap which they boiled in water and drank for
             medicine to keep your heart, kidney and liver strong.
       9.    The Yule River is also very important because we believe that the serpent lives there.
             We call the Yule River Kakurrkunya. There are many stories about the Yule River that
             are connected to other parts of Kariyarra country. The Yule travels down to
             Yanderyerra, which is an important community for many of the Pilbara Aboriginal
             groups, and there is a song that follows its course.
       10. There are quite a few graves around the Munda area which we saw when we went out
           into the field with Mark Chambers, an anthropologist, a few years ago.
       11. This country is also historically important for us because many people from different
           tribes like Nyamal, Ngarla, Yindjibarndi, Ngarluma and Kariyarra stopped and worked
           at Munda station, so many people learnt about their traditional law and culture there.
           Ceremonies and corroboree were also held there near the law ground.
       12. In the past we have gone fishing and collecting shell food along the coast, hunting,
           camping and collecting bush food and medicine in and around the rivers on these two
           tenements, although it has become harder because access has been restricted through
           Munda station, which has a pastoral lease on this country.
       13. If the tenure was granted in these two tenements there would be many negative effects
           on the Kariyarra people. Recently we have been negotiating with the manager of
           Munda station to get more access because it would benefit him too, if Kariyarra could
           get out there and make sure everything is OK on country. However, if these tenements
           were granted to the Grantee Party then this negotiation would be affected and also if
           they started building and digging on the tenements ,then [sic] they might affect our
           country and they might go to dangerous places. Also Kariyarra people’s access to
           country will be further restricted if the tenements are granted.
       14. We believe our country is connected through songs and stories, if part of our country is
           destroyed on these tenements then other parts will be affected too. We also believe that
           the country is spiritual and takes care of its people. If we don’t take care of country
           then dangerous things can happen to the Kariyarra and other people.’

[26]   The affidavit of Rayleen Gordon is as follows:

       ‘1.   My name is Rayleen Gordon. I was born at Port Hedland Hospital on 20 September,
             1975. I am a Kariyarra woman. I went to school and grew up in the Pilbara.
       2.    I am a native title claimant in the Kariyarra Native Title Claim (WC99/3) and
             (WC09/3).
       3.    My grandfather was born at Munda Station and he passed away in 2006. I believe he
             was born in the 1920’s but there was never a birth certificate that I know of. I inherited
             a lot of knowledge of the country around Munda station through my grandfather who
             was considered the boss for that area. His Aboriginal name was Kanyirri.
       4.    My mother Lena Alone and grandmother Elsie Williams were born around Munda
             station. My mother’s Aboriginal name is Yinijukaya and my grandmother’s Aboriginal
             name is Jugyarrti.
       5.    I know the country where the Grantee Party applied for exploration licences E45/2833
             and E47/1626 (“the exploration licence area”). My grandfather and the old people took
             me out and told me about this country. They taught me about this country and showed
             me significant places. Both Munda station and Boodarie station are located within the
             exploration licence area.
       6.    I have been shown a map of the exploration licence area. The map of the exploration
             licence area I was shown is attached to this affidavit and marked “A”.
                                               16


INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
7.   Up until late 2009, I visited the exploration licence area weekly to hunt and fish.
8.   I moved to Perth approximately 18 months ago. Prior to this I always lived in the
     Pilbara. I lived in Port Hedland and South Hedland from about 1999 to 2009. I also
     lived at Yandeyarra Community for about 6 years in the 1990’s and have also lived on
     Warralong and Woodstock Communities as and when expected to attend cultural or law
     ceremonies or corroborees which are more of a social ceremony.
9.   Myself and Kariyarra people still want to use that country, although it has become
     difficult to access to [sic] the exploration licence area because it has been restricted by
     the station owner/manager. Kariyarra people like to go fishing, camping and hunting
     collecting bush food and medicine around this country. It is a big food source for the
     Kariyarra people.
10. Myself and other Kariyarra people caught many varieties or fish and other animals to
    eat in the area including goanna, turkey or partukalara, plain kangaroo or
    parlkarrnyungu/wijunu, echidna or jiripuka, emu or jarnkurna and witchety grubs
    which we call makuya.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
11. There are many significant sites in the exploration licence area.
12. Some of these sites are archaeological sites mainly scatters, from when people would
    make fighting sticks, spearhead and spear throwers. These artefacts are made from the
    white ghost gum tree or yamarrara.
13. Kariyarra people used to make masks or kurntu for the corroborees that were held there
    which were made from the paper bark tree before we improvised with cardboard.
14. We use red ochre or martarr and black charcoal or jinta as body paint during
    ceremonies.
15. There are also a few granite outcrops which have important engravings about the
    dreaming and the dreaming spirits but they are outside the exploration licence area.
16. There are quite a few sites along both of the rivers where the water snake lives and there
    is song associated with it. We call that snake the one that has a beard and we call it
    Katakatara.
17. A lot of people dream/astral travel along the rivers. Yule River is the European name
    but Kariyarra call it the Kakurrka. The mouth of the Kakurrka is called Palkamarra. I
    cannot recall the Aboriginal name for the Turner River.
18. There is a song line that travels from Whim Creek up to Port Hedland but stops
    somewhere north of Munda station. My grandfather would sing the song as we
    travelled together along the rivers where they meet the sea. The old people would walk
    many song lines that pass through the exploration licence area. I have also travelled that
    song line but partly by car until you must walk given the terrain.
19. I recorded one of the songs and still have possession of that today. The song was a
    means of navigating us to certain places whilst also avoiding certain places. We
    practiced this tradition many times and at least once a year even after my grandfather
    passed away in 2006. Up until 2009 I would either go by myself but would usually take
    my grandmother most times.
20. There is a sacred men’s law ground there which ran along the Yule or Kakurrka but I
    am not sure whether it ran along the west branch of the Kakurrka. That law is now
    practiced at Yandeyarra.
21. This country also has a lot of historical significance for the Kariyarra as many people
    were born there and grew up around Munda station.
22. I am not sure about any old burial sites but my mother and grandmother would know
    more about that.
                                                     17


       23. People used to hide their kids along the riverbank when the native welfare or police
           came looking for the children back in the days of the stolen generations.
       MAJOR DISTURBANCE TO LAND OR WATER
       24. If BHP starts building, the song line may break which would destroy our ability to care
           for country.
       25. It may also have serve [sic] effects on the Kariyarra people because we rely on country
           for our spiritual, physical and mental well being.
       26. If the tenure is granted our connection to that country could be destroyed or lost. This
           loss will affect our health, diet and culture.
       27. If the tenure was granted, there would be many negative effects on the country and the
           Kariyarra people. The songline that travelled from Whim creek to Port Hedland stops
           just north of Munda station because there was a tractor in its path. My great, great
           grandfather Jinapi was the first to see the tractor and he did not know what it was.
       28. I think it is important that the mining company takes us out and shows us where they
           want to go. It is difficult for the old people to look at a map and to know exactly where
           they want to go. If we go on a clearance we can tell them where they can go.
       29. Strangers need to ask permission before going on country. If they do not come and talk
           to us I am worried that they will disturb this area and bad things may happen making
           those that do unwell. We respect other people’s country and only enter with permission
           and by following traditional practices when doing so.’

[27]   The statement of Lena Alone is as follows:

       ‘I Lena Alone, of 5/4 Broadie Cresent [sic], South Hedland, in the state of Western Australia
       say as follows:
       1.   I am a Karriyarra woman. I was born at Munda station which includes the tenement
            E47/1626 and some of tenement E45/2833. Many of my elders were born there too.
       2.   Unless stated otherwise, I make this statement on the basis of facts within my own
            knowledge and where I rely on facts outside my personal knowledge I have identified
            the source of those facts and believe them to be true.
       3.   Imogen Dexter the in house anthropologist for Yamatji Marlpa Aboriginal Corporation
            has shown me the maps for both tenements 47/1626 and 45/2833 which are annexed to
            this statement. I have knowledge of this area because I was born there and my father
            was considered the boss for the area. When you are born bush the country becomes
            important for you; you can get your totem from the land.
       4.   The area covered by both the tenements has a lot of significant and important places for
            me, my family and Kariyarra. There is a law ground where my father and other
            relatives have been put through law, just near Munda station. This area is dangerous
            and women and men who haven’t been through law should go there; there are many
            powerful things at law grounds. If the wrong people go there they can get sick or die. It
            can also make the Kariyarra sick.
       5.   The country holds a lot of dreaming stories especially because of the song line that runs
            through both tenements and there are stories about that. My daughter remembers those
            stories well.
       6.   Tenement E47/1626 is where I was taught by the elders about my culture. Our people
            don’t teach in the classroom we teach our kids on country. Show them the dangerous
            places and the right food to eat, when the berries are ripe and where to find the goannas.
            This is the proper way to teach them. Now we just tell them the stories but we want to
            show them where the stories belong in our country. If BHP starts building on our land
            the stories may be lost.
       7.   The Yule River is also very significant for people because the snake lives there. The
            river was also where lots of old people used to meet and travel up and down. If BHP
                                                       18


            mess around with the river then it can affect other parts of our country too; it is all
            connected.
       8.   People used to stop around there for work at Munda station and ceremonies were also
            held there. Kariyarra as well as other groups lived there, camping, fishing hunting [sic],
            gathering. We would hunt for bush turkey, emu, goanna and kangaroos. We would
            collect berries and fruits from the trees and shell fish, oyster from the coast and fish for
            bream salmon and catfish in both the tenements e47/1626 [sic] and E45/2833.
       9.   We still like to do all these things but it is more difficult as access has been restricted by
            Munda station. The Kariyarra have been speaking with the manager of Munda station
            trying to make a deal with him, but if BHP gets the licence for the area then we will lose
            even more control and it may affect the deal we would make with Munda station.
       10. If BHP starts building something on the two tenements there will be many people on
           our land. They should ask permission first, so the country knows who will be there and
           so we can protect our significant areas. This is the right way. If BHP starts building or
           digging up our country there will be many people on our land who haven’t asked
           permission and may go to the wrong places. Kariyarra will not be able to care for our
           country properly.
       11. If BHP tenure over the tenements is granted then the effects on our people and the
           country could be very bad. The rivers and creeks, plants and animals are all sacred to
           us. We want to use these areas to teach our kids about our culture and if we can’t do
           that then we can’t properly pass on our knowledge.’

[28]   In relation to accepting the statements, the Tribunal is not bound by the rules of
evidence (s 109(3) of the Act). Doris Ryder & Others on behalf of Lamboo People/Western
Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (at [18]-[28])
summarises the Tribunal’s practice with respect to statements not in affidavit form. In that
matter, the Tribunal held that evidence relating to the matters in s 237 are central to the
making of a determination, and that the best evidence relating to the matters will generally
come from the native title holders. Though it is preferable for this evidence to be provided in
affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements,
particularly where there is no objection from the other parties and the evidence is
uncontested. In the present matter that is the case.

[29]   With the exception of Imogen Dexter (anthropologist) each of the deponents identifies
themselves as a Kariyarra person and I accept they have the necessary authority to speak for
Kariyarra country on behalf of the native title party.

[30]   In her statement, Ms Dexter states she is an anthropologist with first class honours
and has been employed at Yamatji Marlpa Aboriginal Corporation since February 2011.
Whilst the Tribunal is not a Court and is not bound by the rules of evidence, the Federal
Court’s observations about the role anthropological evidence plays in native title cases are of
assistance in this matter and support the Tribunal’s acceptance of it. The Federal Court has
found that expert anthropological evidence of traditional laws and customs and connection to
                                               19


country based on field work, which accords with the member of the native title claim group’s
evidence, is probative: Neowarra v Western Australia [2003] FCA 1402 at [388]; Rubibi
Community v Western Australia (No 5) [2005] FCA 1025 at [263]; Jango and Others v
Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318 at [291] to [292].

[31]   As the Full Court of the Federal Court has noted, an anthropologist such as Ms Dexter
may observe and record matters relevant to both the social organisation of a native title claim
group and the nature and content of their traditional laws and traditional customs. There may
also be circumstances in which an anthropologist may give evidence about the meaning and
significance of what Aboriginal witnesses say and do so as to explain or render coherent
matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v
Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145
FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135 at [89].

[32]   None of the evidence provided by the native title party has been challenged and I am
satisfied all statements and affidavits are admissible material, accept these, and will deal with
these and all the documents and evidence provided by other parties for the purposes of
making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western
Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69).

Grantee party evidence and contentions

[33]   The grantee party contentions dated 9 May 2011 state that the grants of the proposed
licences are not acts attracting the expedited procedure with reference to s 237 of the Act (at
3). In addition to the sites registered under the AHA, it states it ‘is aware of numerous other
important unrecorded ethnographic sites along the coastline’ (at 8, 28, 48) which have been
‘identified or asserted’ during its negotiations with the native title party. On this basis, it
contends that ‘in the absence of contradictory evidence, the Tribunal should conclude that the
act[s] could potentially interfere with these areas or sites of particular significance to the
Native Title party’ (at 11, 31, 51).

Government party evidence and contentions

[34]   The Government Party does not address, in its evidence or contentions, the repeated
requests by the grantee party for the matter not to proceed through this arbitration process,
where, in the views of both the grantee party and the native title party, a more effective
                                               20


method of proceeding was available to them, should the State have agreed. The Government
party’s evidence and contentions with respect to the proposed licences are the standard
submissions made for objection applications that proceed to an inquiry before the Tribunal.
It is the Government party’s prerogative to employ a standard policy to process exploration
and prospecting licences through s 29 notification with an expedited procedure statement, and
to deal with any subsequent objection application inquiries in an equally standard way.
However, in this matter I note that the two most affected parties have repeatedly petitioned
the Government party that the proposed grants should attract the full right to negotiate, which
the Government party declined to agree to.

[35]   At best, the Government party’s approach in this matter could be seen as formulaic.
At worst, it could be seen as showing little regard for the ongoing relationship between the
grantee and native title parties. In the absence of any information from the Government party
relating to the information provided by the grantee party and native title party in relation to
their agreement on which process could be used to resolve the matter, the position the
Government party has taken in these three matters is puzzling. Effectively, the Government
party has succeeded in putting the native title and grantee parties to a great deal of time,
expense and resources in preparing materials for the arbitration process for these three
proposed licences, where an alternative resolution process could have been used.

Community or social activities (s 237(a))

[36]   With reference to s 237(a) the grantee party supports the native title party’s
contentions stating it ‘is cognisant of the particular cultural importance of the land’ (at 9, 29
and 49) which is the subject of the proposed licences.

[37]   In its supplementary contentions, the native title party contends the evidence
submitted ‘demonstrates that hunting, fishing, gathering of bush medicines occur throughout
the area of the Tenements’ (at 6) and refers specifically to the evidence provided by Rayleen
Gordon at 9 and 10, Donny Wilson at 8 and 12, Elsie Williams at 4 and 10 and Lena Alone at
6, 8 and 9.

[38]   Government party documentation notes that minimal exploration or mining activity
has occurred over the area of the proposed licences. However, some areas are overlapped by
pastoral leases. While there is no specific evidence as to the degree of such interference, the
Tribunal is entitled, as part of the overall context, to have regard to the fact that ongoing
                                                 21


pastoral activities may have, to some extent, interfered with the native title party’s obligations
to look after some areas of country.

[39]      I have reviewed all the evidence provided by the native title party to find references to
any current community and social activities enjoyed by it on the area of the proposed
licences. Given the general nature of such references, and lack of particularisation of current
social and community activities, I cannot find the grants of the proposed licences are likely to
directly interfere with the carrying on of the community or social activities of the native title
party.

Sites of particular significance (s 237(b))

[40]      The issue the Tribunal is required to determine with reference to s 237(b) is whether
there is likely to be (in the sense of a real risk of) interference with areas or sites of particular
(that is, more than ordinary) significance to the native title party in accordance with their
traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows:

        Three registered Aboriginal sites and two Heritage Places within E47/1626;

        One registered Aboriginal site and two Heritage Places within E45/2833; and

        107 registered Aboriginal sites and 57 Heritage Places within E45/2834.

This does not mean there may not be other sites or areas of particular significance to the
native title party over that area 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. The AHA does
protect all Aboriginal sites, whether on the Register or not.

[41]      The regulatory regime based on the AHA has 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 protective regime based on the AHA is sufficient to ensure that any
interference with sites of particular significance is unlikely, each matter must be considered
on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title
Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91])).
The Tribunal must consider, based on the facts of particular cases and the nature and extent
                                                22


of sites of particular significance, whether this protective regime is sufficient to make it
unlikely that there will be interference with sites of particular significance found to exist.

[42]   The evidence of the native title party establishes sites of particular significance within
the proposed licences which may or may not be on the Register, including:

           ‘important increase sites’ and the sacred sites of the Yule and Turner River’s
            (Imogen Dexter at 5);

           ‘many very significant sites’ within E45/2833 and E47/1626 including
            ‘archaeological sites mainly scatters, from when people would make fighting
            sticks, spearhead and spear throwers ... made from the white ghost gum tree or
            yamarrara’, sites for collecting ceremonial materials such as paper bark, red
            ochre or martarr and black charcoal or jinta (Rayleen Gordon 11-20);

           ‘quite [a] few graves around the Munda area’ (Donny Wilson at 10);

           A law ground near Munda station which is dangerous to women and uninitiated
            men (Lena Alone at 4, Donny Wilson at 6, Rayleen Gordon at 20, Elsie Williams
            at 5);

           Numerous sites along the Yule and Turner Rivers (Donny Wilson at 8-9, Lena
            Alone at 7, Rayleen Gordon at 16);

           Important sites along the coast, including for fishing, camping and ceremonies
            (Elsie Williams at 4 and 8, Donny Wilson at 12);

           A songline that heads through E45/1626 and E45/2833 towards Port Hedland;
            and

           An area where women had babies (Elsie Williams at 6).

The statements of Lena Alone, Donny Wilson, Rayleen Gordon and Imogen Dexter all refer
to these stories and songlines, to the particular significance of the sites such as the Yule and
Turner Rivers and to important ceremonial, camping, fishing, hunting and other sites of
particular significance across the tenements.

[43]   The grantee party, in their contentions, confirm that a number of areas or sites of
particular significance have been asserted by the native title party and declare that the
                                                23


Tribunal should conclude that their activities could interfere with these sites. While parties
cannot direct the Tribunal on which determination to make, and while the grantee party does
not outline how or in what way their activities could interfere with the sites, I accept the
implied assertion that, by virtue of their proposed activities, the grantee party expects that
such disturbance will take place. While I appreciate the frustration of the grantee party in
these matters, I make my determination taking into account only relevant evidence available
before me in terms of the provisions under the Act relating to s 237. It appears that the
grantee party, while having a positive attitude towards the AHA and the regulatory
environment within WA, has concerns that it may disturb sites of particular significance
without further ongoing discussions with the native title party. Even despite the Government
party stating that it will propose a RSHA condition, when I look at all of the available
evidence I am of the opinion that this is a case where the negotiation process available under
s 31 of the Act should take place to avoid the likelihood of interference with sites of
particular significance on these three proposed licences.

[44]   Similar to the matter of Dora Sharpe and Others and Ashburton Minerals and
Ripplesea Pty Ltd and WA [2004] NNTTA 31, I accept that some of the native title party
evidence suggests that they believe that spiritual damage could occur if there was damage to
sites on or nearby the proposed licence areas, however, this of itself is not sufficient to attract
s 237(b). I do accept, however, that these areas do hold sites of particular significance for the
native title party, in particular E45/2834 with its 107 sites and 57 Heritage places, and taking
into account sites such as the Yule and Turner Rivers referred to within the native title party
and DIA’s evidence as being sites of particular significance, with various sites and areas
surrounding the rivers that are also of particular significance. As such, I accept that even
with the grantee’s intention to adhere to the provision of the law, there is a real risk of
inadvertent interference with sites of particular significance on all of the proposed tenements
unless consultation with the native title party takes place. As such, my determination is that
these three acts are not acts attracting the expedited procedure.

Major disturbance to land and waters (s 237(c))

[45]   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
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community, as well as taking into account the concerns of the native title party (see Little at
[41]-[57]).

[46]   The Tribunal has always had regard to the overall circumstances of each case,
including, in particular, the locality in which the exploration will take place as well as the
remedial regulatory regime in place.        It will consider whether there are any special
topographical, geological or environmental factors which would lead members of the
Australian community generally to think that exploration activities would result in any major
disturbance to land or waters. In most cases, the Tribunal has held that exploration activity
does not cause major disturbance to land or create rights whose exercise is likely to do so, but
there have been exceptions (Champion v Western Australia and Another (2005) 190 FLR 362
[2005] NNTTA 1 at [74]-[79] and the cases cited therein).

[47]   In relation to the question of the general impact of mining or exploration, there is
insufficient evidence for me to conclude any negative inference against the grantee party.
Further, there is insufficient evidence before me in relation to a negative impact on land or
water on or near the area of the proposed licences. There has not been sufficient nexus
provided or evidence of sufficient nexus to physical disturbance provided by the native title
party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR
330; [2002] NNTTA 113, nor in my view is such disturbance likely to be considered major as
required by the general community as outlined in Silver and Others v Northern Territory of
Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18.

[48]   The evidence in this matter does not establish that the grants of the proposed licences
will result in a major disturbance to land or create rights which will do so.

Determination

[49]   The determination of the Tribunal is that the grants of exploration licences E47/1626,
E45/2833 and E45/2824 to BHP Billiton Minerals Pty Ltd are not acts attracting the
expedited procedure.



Helen Shurven
Member
4 August 2011

								
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