NATIONAL NATIVE TITLE TRIBUNAL

Kallenia Mines Pty Ltd and Others v Walalakoo Aboriginal Corporation RNTBC and Another [2016] NNTTA 50 (9 November 2016)

Application Nos: WF2015/0012, WF2015/0013, WF2015/0017, WF2015/0018, WF2015/0021

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

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IN THE MATTER of an inquiry into future act determination applications

Kallenia Mines Pty Ltd (first grantee party)

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Pilbara Chemical Corporation NL (second grantee party)

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Walalakoo Aboriginal Corporation RNTBC (WCD2014/003) (first native title party)

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Yawuru Native Title Holders Aboriginal Corporation RNTBC (WCD2006/001) (second native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACTS MAY BE DONE

Tribunal: Mr JR McNamara, Member Place: Brisbane Date: 9 November 2016 Hearing date: On the papers

Catchwords: Native title – future act – application for determination for the grant of exploration licences – procedural issues – acceptance of forms lodged – weight to be given to prior agreements – s 39 criteria considered – effect of act on native title rights and interests – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of native title parties – economic or other significance of act – public interest in doing of act – effect of act on the environment – age of the applications – proposed conditions – determination that the acts may be done. 2

Legislation: Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth), ss 30(1), 31(1), 32(7), 35(1), 37, 38, 39(1), 39(4), 41, 52, 52A, . Mining Act 1978 (WA)

Cases: Aston Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTTA 40 (‘Aston Coal v Gomeroi’) Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, [2012] NNTTA 31 (‘Drake Coal v Smallwood’) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia (2015) 233 FCR 96; [2015] FCA 560 (‘Hale v Western Australia’) Mineralogy Pty Ltd v National Native Title Tribunal & Ors (1997) 150 ALR 467; [1997] FCA 1404 (‘Mineralogy Pty Ltd v National Native Title Tribunal’) Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’) Northern Territory/Ben Ward and Others on behalf of the Miriuwung & Gajerrong People; Moses Silver, Ishmael Andrews & Sammy Bulabul; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham & Gabriel Hazelbane; Michael Page; Button Jones/Ashton Exploration Australia Pty Ltd; Stephen Darryl Moffatt; Grant Archer, David Langley & Jim Kastrissios; Arafura Resources N/L; Michael Daniel Teelow [2001] NNTTA 163 (‘Northern Territory v Ward’) Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurruma and Pinikura People; Puutu Kunti Kurruma and Pinikura People #2/Western Australia [2011] NNTTA 80 (‘Magnesium Resources v Puuntu Kunti Kurruma and Pinikura’) Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Thalanyji’) Rubibi Community v Western Australia (No 7) [2006] FCA 459 (‘Rubibi v Western Australia’) Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna [2011] NNTTA 53 (‘Seven Star v Freddie’) Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’) Western Australia/Leo Winston Thomas & Ors on behalf of The Waljan People; Ted Coomanoo Evans & Richard Guy Evans on 3

behalf of the Koara People; Quinton Paul Tucker & Ors on behalf of the Ngurludharra Waljan Clan; Dimple Sullivan on behalf of the Tjinintjarra Family Group; Sadie Canning on behalf of the Thithee Birni Bunna Wiya People; Trevor Brownley & Ors on behalf of the Bibila Lungkutjarra (Waljen) People; Thomasisha Passmore on behalf of the Milangka-Purungu (Wongatha) People/Anaconda Nickel Ltd, (1999) 164 FLR 120; [1999] NNTTA 99 (‘Western Australia v Anaconda’) Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’) Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’) William Robert Richmond and Another v Walalakoo Aboriginal Corporation RNTBC [2015] NNTTA 20 (‘Richmond v Walalakoo’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’)

Representative of the first grantee party Mr William Richmond, Kallenia Mines Pty Ltd

Representative of the second grantee party Mr Douglas Mitchell, Pilbara Chemical Corporation NL

Representative of the first native title party Ms Justine Toohey, Kimberley Land Council Representatives of the Mr Glenn Archer, Nyamba Buru Yawuru Ltd second native title party Ms Caitlin Fegan, Nyamba Buru Yawuru Ltd Representatives of the Ms Sarah Power, State Solicitor’s Office Government party Ms Faye Mitchell, Department of Mines and Petroleum

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REASONS FOR DETERMINATION

Background

[1] This decision concerns five applications made to the National Native Title Tribunal seeking a determination that exploration licences E04/1542, E04/1543, E04/1544, E04/1546 and E04/1440 (collectively ‘the licences’) may be granted. This determination was sought on the basis that parties had been unable to reach agreement of the kind mentioned in s 31(1)(b) of the Native Title Act 1993 (Cth) (‘the Act’).

[2] In 2006, the State of Western Australia gave notice of its intention to grant the licences to Kallenia Mines Pty Ltd (and Pilbara Chemical Corporation NL in the case of E04/1440) under the Mining Act 1978 (WA). The notices included a statement to the effect that the State considers the expedited procedure applies to the grant of these licences.

[3] The Yawuru Native Title Holders Aboriginal Corporation RNTBC (‘Yawuru’) holds native title over parts of the five licences, following the native title claim determination of the Yawuru People in April 2006. The Walalakoo Aboriginal Corporation RNTBC (‘Walalakoo’) holds native title over parts of two of the licences following the Nyikina Mangala People’s native title claim determination in May 2014.

[4] On 16 December 2008, the State notified the Tribunal that the expedited procedure statement had been withdrawn for each of the licences, as per s 32(7) of the Act. Accordingly the normal negotiation procedure outlined at s 31(1) of the Act applies to these licences and Yawuru and Walalakoo have the right to negotiate with the grantee party and the Government party with a view to reaching an agreement about the grant of the licences.

[5] Where parties are not able to reach agreement about a grant, and at least six months have passed since the licences were notified, any party may apply for the Tribunal to make a determination. The Tribunal has the power to determine whether or not the grant can be made, and if so, whether any conditions should be included, unless one of the parties satisfies the Tribunal that the grantee or the Government party have not negotiated in good faith. 5

[6] The s 35 future act determination applications were lodged by Mr William Richmond on behalf of Kallenia Mines Pty Ltd and, in the case of WF2015/0017, on behalf of Kallenia Mines and Pilbara Chemical Corporation NL. Following the lodgement of application WF2015/0017, Mr Douglas Mitchell, Director of Pilbara Chemical Corporation, advised the Tribunal that Pilbara Chemical Corporation intends to transfer its interest in the tenement to Kallenia Mines following grant, and that Kallenia Mines would be acting for the grantee parties in this matter. For ease of reference, this determination refers just to Kallenia Mines however, where relevant, this is also a reference to Kallenia Mines as agent for Pilbara Chemical Corporation.

[7] The below table sets out relevant information regarding the five applications, including the tenement numbers, grantee party and native title parties in each matter:

Tenement Size & Location Grantee Party Native Title Parties (and determined overlaps)

E04/1542 227.75km2, 43km Kallenia Mines Pty Yawuru east of Broome Ltd  81.21% exclusive native title;

 17.90% non exclusive native title E04/1543 227.77km2, 93km Kallenia Mines Pty Walalakoo south west of Ltd  57.43% non exclusive native title Derby Yawuru  42.57% exclusive native title E04/1544 227.91km2, 72km Kallenia Mines Pty Walalakoo south west of Ltd  9.95% exclusive native title; Derby  68.92% non exclusive native title Yawuru  21.3% exclusive native title E04/1546 227.43km2, 49km Kallenia Mines Pty Yawuru south east of Ltd  62.84% non exclusive native Broome title;  0.37% native title does not exist E04/1440 117.89km2, 30km Kallenia Mines Pty Yawuru south of Broome Ltd & Pilbara  1.85% exclusive native title; Chemical Corporation NL  98.15% non exclusive native title

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[8] Neither Yawuru nor Walalakoo has alleged the absence of good faith negotiations. As such, this determination is made based on the criteria set out in s 39 of the Act.

Material received

[9] On 15 December 2015, Kallenia Mines lodged a short email statement titled ‘Contentions s35’ (‘KM Contentions’) together with a schedule of annexures numbered 1-21 and a further unnumbered document. On the same date the Government party lodged its statement of contentions (‘GVP Contentions’). Due to the size and number of annexures, these were subsequently provided to parties by DVD, labelled 1A-7H.

[10] On 1 March 2016, Walalakoo lodged its statement of contentions (‘WAC Contentions’) together with annexures 1 and 3. Due to the size of the document that formed annexure 2, Walalakoo provided a web link to this document. On the same date Yawuru lodged its statement of contentions (‘YAC Contentions’) together with the following:

 Affidavit of Francis Djiagween (‘FD Affidavit’) and annexure FD-1, affirmed on 1 March 2016;

 Affidavit of Dianne Appleby (‘DA Affidavit’) and annexures DA-1 to DA-2, affirmed on 1 March 2016;

 Affidavit of Debra Pigram (‘DP Affidavit’), affirmed on 29 February 2016. This affidavit included annexures DP-1 to DP-9 however due to the size of some of these documents copies were provided to parties subsequently on DVD;

 Affidavit of Thomas (Unda) Edgar Jr (‘TE Affidavit’) and annexure TE-1, affirmed on 29 February 2016.

Due to the size and number of annexures to the YAC Contentions, these were subsequently provided to parties by DVD, labelled Y-1 to Y-20.

[11] On 18 March 2016, Kallenia Mines provided parties and the Tribunal with a seven- page statement in reply (‘KM Reply’) together with a schedule of 43 annexures. On 7

the same date the Government party lodged two separate contentions in reply to Walalakoo and Yawuru (respectively ‘GVP WAC Reply’ and ‘GVP YAC Reply’). GVP WAC Reply included annexures 1 to 2, and GVP YAC Reply included annexures 1 to 10.

[12] On 21 March 2016, Kallenia Mines sent a further short statement by email (‘KM further reply’) primarily to qualify some statements made in the KM Reply, having now received the Government party’s replies.

[13] Parties also attempted to coordinate the drafting and lodgement of a joint Statement of Agreed Facts (‘the SOAF’) to be relied on in this determination as per s 39(4). On 19 April 2016, the Government party provided a joint statement, executed on behalf of both native title parties and itself. The Government party noted that Kallenia Mines had not yet signed the statement, therefore it was provided subject to its confirmation and execution. The SOAF stated that for the purposes of this determination parties: consented to the Tribunal taking into account the following facts on which they agree; and, need not take into account s 39(1) criteria to the extent it relates to the following facts:

The draft endorsements and conditions (Annexures 4-8 of Government Party’s Contentions in Reply to [Yawuru’s] Contentions) are updated to reflect and include the marine park reserve areas.

[14] On 2 May 2016, Kallenia Mines provided an email titled ‘Response to Statement of Agreed Facts of 19 April 2016’ in which it expressly disagrees with the inclusion of the marine park reserves. As such, I will not proceed on the basis that all parties agree to this statement but I will still note that this is a statement that both the native title parties and the Government party agree on.

Preliminary Issues

Kallenia Mines’ contentions and evidence

[15] On review of the statements and evidence lodged by Kallenia Mines, it is apparent that these submissions have little to no relevance to the s 39 criteria which I am directed to consider. 8

[16] Yawuru states that Kallenia Mines’ contentions ‘contain no coherent statement of law or fact. They contain a number of comments and unsubstantiated allegations’ and the Tribunal should disregard them in their entirety (at 2.24-2.25).

[17] The submissions provided by Kallenia Mines contain some comments regarding the proposed project and activities. However, largely they relate to negotiations that took place between Kallenia Mines and various native title groups (including Yawuru/Rubibi and Walalakoo/Nyikina Mangala) in the 10 year period between notification of the licences and lodgement of these applications. The contentions are brief, often hard to follow, and, make no direct reference to the s 39 criteria. By and large the contentions do not clearly link to the schedule of attachments that accompanied them. Therefore, it is difficult to discern the relevance of many of the documents provided to the arguments put forward by Kallenia Mines. In Yindjibarndi v FMG Pilbara President Webb commented (at [35]) ‘The Tribunal is not assisted in its task by a seemingly ‘scatter-gun’ approach to the evidence, where large volumes of material are provided without an apparent focus on the task at hand.’ It is not the role of the Tribunal to extrapolate an argument from parties’ submissions. Rather, parties should be presenting their argument in cogent and directed contentions, supported by evidence where appropriate and able.

[18] I am cognisant that Kallenia Mines is in effect ‘self represented’, being represented by its Sole Director Mr William Richmond. The Tribunal takes a commonsense approach in these matters, meaning there is no burden of proof on any party and the Tribunal is not bound by technicalities or rules of evidence (s 109(3) NTA). Therefore a certain degree of latitude can be afforded to the submissions of self represented parties. However, this cannot and should not detract from the decision being based on logically probative evidence and by application of the law. (see Western Australia v Thomas).

Acceptance of the s 35 determination applications

[19] Following lodgement of the applications, I was appointed by President Webb for the purpose of making a determination in respect of the licences. I considered each application against the conditions outlined at s 76 and accepted the applications pursuant to s 77 of the Act. 9

[20] Yawuru’s contentions have raised as a procedural issue the adequacy of the applications lodged by Kallenia Mines. Yawuru submits that Kallenia Mines has not complied with the requirements of the Form 5, and that the applications are ‘incompetent and should be dismissed’ (at 2.5). This issue goes to my jurisdiction to determine this matter and in such circumstances I am obliged to make due inquiry and resolve the issue (see Mineralogy Pty Ltd v National Native Title Tribunal).

[21] By 19 August 2015, the Tribunal had received all five future act determination applications the subject of this determination, lodged by Mr Richmond on behalf of Kallenia Mines. On review of these applications, the Tribunal advised Mr Richmond that the applications contained some deficiencies and the Tribunal could not accept them in their current form. Mr Richmond was given the opportunity to amend the applications and was also provided some information on completing Form 5 applications, including a copy of the Tribunal’s instructional document ‘Completing a Future Act Determination Application (Form 5)’. On 7 September 2015, Mr Richmond lodged amended applications for all five matters and after consideration I accepted each of these applications.

[22] The material contained in each of the Form 5s is substantially the same. Yawuru contends the information at points 11, 12, 13 and 14 of the Form 5s is insufficient and/or incorrect.

[23] The Act states that an application must be in the prescribed form (s 76(a)). Form 5 is the form prescribed under the Native Title (Tribunal) Regulations 1993, and, specifically, points 11-14 are prescribed as follows:

11. A statement of the effect of the act on: a) the enjoyment by the native title parties of their registered native title rights and interests; and b) the way of life, culture and traditions of any of those parties; and c) the freedom of access by any of those parties to the land or waters concerned and their freedom to carryout rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and d) the area or site, on the land or waters concerned, of the particular significance to the native title parties in accordance with their traditions 12. A outline of the type of evidence that the applicant(s) will produce to show the effect of the act on the area of land. 13. A statement of the nature and extent of: 10

a) existing non-native title rights and interests in relation to the land or waters concerned; and b) existing use of the land or waters concerned by persons other than the native title parties. 14. Any other relevant information.

[24] In Northern Territory v Ward, Member Sosso (as he was then) provided a useful analysis of the applicable considerations when assessing an application, including the extent to which an applicant is required to comply with a prescribed form. On this issue he stated (at [42]):

‘[W]hat is being considered is the effect of compliance with a Form. In that regard reference can and should be made to section 25C of the Acts Interpretation Act 1901 (Cth) which provides as follows: “Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.” ’

Therefore, when considering whether an applicant has complied with a form, each of the requirements in that form must be considered: some of these may require strict compliance, some may allow substantial compliance and some may be ignored because they have no real bearing on the disposition of the matter. In considering points 11-14 of the Form 5, I do not believe an applicant’s failure to strictly comply with any of these points necessarily renders that application fatally deficient.

[25] At point 11 of these Form 5s the grantee has stated:

The grant of the tenements will not effect the [native title party’s] native title rights and interests. The effect of the grants is that the grant of the licence will not extinguish native title.’

Yawuru have argued that this statement does not meet the requirements regarding the effect of the act on points a) to d) of point 11.

[26] I agree that the applicant’s response at this point would not meet the requirements of strict compliance. However, I do not believe that taking an overly strict approach on this would be consistent with the Tribunal’s objective of carrying out its functions in a fair, just, economical, informal and prompt way (s 109(1) NTA). Member Sosso stressed that a contextual analysis is required when considering such applications, and ‘regard must be had not just to the actual response given, but also to the circumstances surrounding that response’ and the ‘consequences of finding either compliance or non-compliance’ (Northern Territory v Ward at [79]-[80]). I have taken into account the applicant in this matter is not legally represented. Its statement that ‘the tenements 11

will not effect the [native title party’s] native title rights and interests’ is not legally correct - the native title party’s native title rights and interests must be affected for this matter to be before the Tribunal. However, in the context of this matter, I have taken this statement to mean that the applicant does not believe it will interfere with sub points a) to d) whilst exercising its rights under the proposed licences.

[27] I have also given consideration to the consequences of finding non-compliance for these matters, namely further expense and delays. In these matters the consequences of not accepting the applications are not of great significance – there is nothing preventing the applicant from lodging a new application that addressed any issues of compliance. Conversely, I see no reason to delay the process further by enforcing strict compliance on these points in an application that has met other key requirements, such as showing at least six months have passed since the notification day and no s 31(1)(b) agreement has been made.

[28] By way of satisfying point 12 of the Form 5s, the applicant supplied copies of various correspondence from the negotiation period, maps and tenure information from the Department of Mines and Petroleum (‘DMP’). Whether or not Yawuru agrees with the content of the information supplied is an issue to be dealt with during the inquiry, and indeed the relevancy of Kallenia Mines’ evidence is an issue I deal with in further detail below, however, for the purposes of accepting the applications I find the applicant has met the requirements of showing ‘the type of evidence’ that will be produced in these matters.

[29] To satisfy the requirements of point 13 of the Form 5s, the applicant has provided copies of DMP Quick Appraisals for each of the licences. These documents detail the various tenements, services and land affected by the proposed licences and I find this adequate information to meet the requirements of point 13.

[30] The applicant has provided statements at point 14 of the Form 5s which relate to negotiations the applicant was involved in. Yawuru have challenged these statements, arguing they are incorrect. As stated above, this is an issue that Yawuru can address in the inquiry process if appropriate. For the purposes of accepting these applications, I see this information as having no real bearing on my decision and any inaccuracies can be dealt with in the context of the inquiry. 12

[31] I see no material injustice caused by accepting the applications and while I agree with Yawuru that the applicant has not strictly complied on a number of points, I find there has been substantial compliance sufficient for me to accept the applications. As such, I am satisfied I can proceed in making this determination.

Negotiations and the Nyikina & Mangala Traditional Owners and Kallenia Mines Heritage Protection Agreement

[32] As part of its submissions, Kallenia Mines has submitted evidence of two executed Heritage Protection Agreements (‘HPAs’) covering various exploration licences, including E04/1543 and E04/1544. Both HPAs have been executed by Kallenia Mines and the Kimberley Land Council (‘KLC’) on behalf of the Nyikina & Mangala Traditional Owners. The earlier was fully executed by July 2006 and the latter by April 2011.

[33] Walalakoo’s contentions state that, following receipt of the stamped and executed 2006 HPA, KLC withdrew Nyikina & Mangala’s objections to the expedited procedure lodged in relation to E04/1543 and E04/1544. Objections lodged by the Rubibi registered native title claim group remained on foot and therefore the licences were unable to proceed to grant.

[34] In December 2008, the Department of Mines and Petroleum (‘DMP’) advised the Tribunal and parties that the expedited procedure statement had been withdrawn for these licences, therefore parties commenced the normal negotiation procedure outlined at s 31 of the Act. Walalakoo’s contentions state that the 2011 HPA was executed by KLC and Kallenia Mines which replaced the 2006 HPA, however ‘for reasons which are not clear on the face of the available records, the proceedings before the Tribunal in respect of the Walalakoo Native Title Party were not disposed of at that time.’ To be clear, there were no proceedings before the Tribunal in respect of Walalakoo (or Nyikina & Mangala) and these licences at the time the 2011 HPA was finalised. Although parties had reached agreement on the terms of a HPA, this agreement is not an agreement of the kind mentioned at s 31(1)(b) and therefore it did not meet the threshold requirements for a valid act outlined at s 28(1) of the Act. In Aston Coal v Gomeroi President Webb explained (at [20])

While s 31(1)(b) focuses on the consent of the native title party to the act being done, with or without conditions, what is required is an agreement between the ‘negotiation parties’, in this 13

case, a tripartite agreement. While there is no express requirement that a s 31(1)(b) agreement is to be in writing, it is implicit in s 41A of the Act which requires copies of agreements be provided to the Tribunal. I agree with the grantee party that the requirement for a binding written agreement reflects the serious consequences of invalidity which follows where the requirements of s 28 of the Act are not met.

Relevant to this matter, s 28(1)(f) states that an act is valid if a s 31(1)(b) agreement is made, however, there is nothing before me that suggests such an agreement was made.

[35] It is not clear from the evidence before me why this tripartite ‘State Deed’ agreement was not execute by parties following finalisation of the 2011 HPA. Walalakoo contentions state that in June 2014 KLC received a State Deed from DMP for the purposes of recording their consent to the grant of the licences, however:

In light of the significant effluxion of time since the Walalakoo Native Title Party was notified of the Acts (almost ten years), and since the Walalakoo Native Title Party agreed to the Acts in the 2006 HPA and the 2011 HPA, the Walalakoo Native Title Party did not agree to enter into the State Deed. (WAC Contentions at 9)

[36] Kallenia Mines has taken issue with this position adopted by Walalakoo and much of its contentions and evidence focuses on this. It points to clause 2.1 in the 2011 HPA which states that KLC, on behalf of the Traditional Owners, agrees: to the grant of the licences; and, to do all things reasonably necessary or incidental to give effect to the agreement including signing any documents and indicating their consent to any person or body, including executing a State Deed.

[37] Kallenia Mines has submitted legal advice it received (Annexure 13, KM Reply) in relation to Walalakoo’s contentions on this issue, dated 17 March 2016. The advice states ‘the concept of a contract being out of date is not a concept that has any legal consequence. If a contract is in existence, then a party is entitled to the benefits that flow to that party and a party is required to comply with the obligations that is has agreed to perform.’

[38] Walalakoo have not challenged the validity of the HPA, but they have declined to sign a State Deed and have contested Kallenia Mines’ future act determination application to the Tribunal. It is not for the Tribunal to determine matters of contract law; rather this must be pursued through the appropriate court system. The Act states that I must not make a determination if a s 31(1)(b) agreement has been made, however, for the 14

reasons outlined above, the HPA is not such an agreement, therefore I must proceed to make a determination.

[39] This then leads to the question of the relevance of the HPAs to my consideration of this matter. Section 40 of the Act states:

‘If: (a) the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and (b) an agreement, or a determination by an arbitral body, under this Sub-division involving the same negotiation parties was previously made in relation to a permissible future act consisting of a right to mine in relation to the same area; and (c) an issue was decided in the agreement or during the enquiry; the negotiation parties must not, without the leave of the arbitral body that is making the determination, seek to vary the decision on the issue.’

[40] In Western Australia v Anaconda, Member Sumner (as he was at the time) considered the application and intention of this section. In that matter, as in this, the evidence showed the existence of ancillary agreements entered into by the grantee party with some, but not all, of the native title parties. Member Sumner found that, in circumstances where only some of the parties involved had been parties to an agreement, s 40 has no operation. He went on to state ‘[i]t is only where all of those before the arbitral body were parties to the earlier agreement that s 40 applies. Only then can it be said that an agreement ‘involving the same negotiation parties’ has been made.’ (at pg 29).

[41] Member Sumner then proceeded to consider the intention behind this section and found that: Parliament expressed in the Act a preference for future acts to be done as a result of agreement wherever possible; and, that matters determined by an earlier agreement should not be re-ventilated except in exceptional circumstances. Member Sumner stated (at pg 31):

‘Although I have found, for the reasons set out above, that s 40 does not apply here, that policy may be seen as supporting an approach under s 39 which has as its starting point the notion that if a particular native title party has already agreed to the doing of the act (with or without conditions in the agreement) then, unless reason is demonstrated for doing so, the Tribunal ought not impose conditions upon the doing of the act and nor should it make a determination that the act not be done. That approach is, in the view of the Tribunal, the appropriate starting point but cannot override the statutory obligation to consider all matters in s 39(1).’

[42] I agree with the principles expressed in Western Australia v Anaconda. Accordingly, I will proceed to consider this matter on the basis that significant weight be afforded to 15

the prior agreements entered into by certain parties. To that end, I accept these agreements as determining the relevant issues between Walalakoo and Kallenia Mines unless there is clear evidence before me which would challenge this approach.

[43] Walalakoo have not made any contentions regarding the relevance of the HPAs to this determination other than to state (WAC Contentions at 36):

‘In the event that the Tribunal determines that the Acts may be done, the Tribunal should determine that the Acts may be done subject to conditions that

(a) The 2011 HPA should be amended to reflect current actual costs associated with the heritage clearances and surveys that will be undertaken thereto;

(b) The grantee party must otherwise comply with the 2011 HPA; and

(c) An amount be paid into trust on account of a future determination of compensation.

[44] The Government party makes no specific reference to the relevance of the agreements between parties in its WAC Reply other than to address the conditions proposed by Walalakoo. In relation to the first two conditions proposed, the Government party states it is not apparent if and how the Tribunal may give effect to those conditions, and ‘amendment of the terms of an existing and seemingly binding agreement/s is not a matter which could reasonably be altered by the Tribunal’ (GVP WAC Reply at 71). In relation to the third proposed condition, the Government party states that ‘beyond a bear [sic] contention there is no detail or explanation about what that compensation amount should be or the basis upon which it should be assessed.’ (GVP WAC Reply at 72). The Government party state that without such information it is unable to address the matter further.

[45] I agree with the Government party’s contentions on the proposed conditions. Proposed conditions (a) and (b) fall outside the scope of the Tribunal’s power. In relation to (c), directing monies to be paid into trust is not an action the Tribunal would take lightly and Walalakoo’s contentions have failed to put forward any compelling reason why or how this condition should be imposed.

[46] To the extent this matter relates to Walalakoo, I have had regard and given significant weight to the fact that the Nyikina & Mangala Traditional Owners agreed to the grant of E04/1543 and E04/1544 in the 2011 HPA. Walalakoo has not put forward any contentions or evidence that detracts from this position. As such I find that, to the extent it relates to Walalakoo, the acts can be done. However, there is nothing before 16

me to suggest that Yawuru have consented to the grants, therefore I will consider their case in the remainder of this determination.

The exploration licences

Area to be considered

[47] Yawuru’s contentions state that Tengraph Quick Appraisal documents for E04/1440 and E04/1542 annexed to the Government party’s contentions are ‘out of date’ (YAC Contentions at 5.8 and 5.9). Yawuru has annexed ‘more current’ appraisals to its contentions and relies on the information these contain. The Government party has responded to this point in its reply, stating the appraisal documents it relied on were not out of date but rather they ‘consider only land that is available, and intended, to be granted’ (GVP YAC Reply at 19). The Government party reiterates this point in relation to the affidavits provided by Yawuru, stating the Yawuru affidavits ‘were provided based on a wider, incorrect tenement area’ (GVP YAC Reply at 37).

[48] In relation to E04/1542, the difference in area considered between the two appraisal documents is approximately 7.05 km2. I can see no area or tenure difference between the two appraisal documents provided for E04/1440. The Government party have not provided any information indicating which portion of E04/1542 is not available for grant or exploration, nor the reasons for this exclusion.

[49] To be clear, this inquiry and determination is made in relation to the whole of the licence areas as described in the s 29 notices. The fact the Government party has indicated certain parts of these licences will not be granted, or are not available for exploration, may be a relevant consideration but this must be shown in the contentions and evidence (see Hale v Western Australia at [115] and [119]). It does not mean these areas are entirely excluded from my considerations and it does not render the licence areas relied on by Yawuru as ‘incorrect’.

Underlying tenure

[50] Details of significant underlying tenure for each of the licences are outlined at Attachment 1 of this decision. In relation to E04/1542, the Tribunal noticed inconsistencies between the reserve areas listed in the Quick Appraisal documents and the reserves mentioned in condition 9 of the Draft Conditions and Endorsements 17

extract (as submitted by the Government party). The Tribunal sought clarification from DMP on this point and as a result updated and amended versions of the Quick Appraisal and the Draft Conditions and Endorsements extract documents for E04/1542 were received by the Tribunal and circulated to parties. Parties were advised that the Tribunal would have regard to these documents and therefore afforded the opportunity to make submissions in relation to the documents. No submissions were received. The information in relation to E04/1542 at Attachments 1 to 4 is based on this latter version of documents.

[51] There are two registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) affecting these licences. One site, located within E04/1440, is named Mararr (ID 12475) and is recorded as an ‘artefacts/scatter, midden/scatter’. The other site partially encroaches on E04/1542, is named Mimiyagaman (ID 12474) and is recorded as an ‘artefacts/scatter, midden/scatter, mythological, skeletal material/burial’. The file and boundary information of this latter site has been deemed restricted information by the Department of Aboriginal Affairs (‘DAA’) indicating this is culturally sensitive information.

[52] Attachment 2 to this determination sets out both the current and the dead/expired tenements which overlapped the area of the licences.

Rights to be granted and conditions to be imposed

[53] Upon grant, the exploration licences authorise Kallenia Mines to exercise rights as set out in s 66 of the Mining Act 1978 (WA) and reg 20 of the Mining Regulations 1981 (WA). Subject to the various conditions placed on the grants, these rights include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes. These rights will be granted for a period of five years with options for renewal.

[54] Attachments 3 and 4 of this decision list the conditions and endorsements the Government party intend to impose on the licences upon grant. Endorsements differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence. 18

[55] Of some significance to this determination are conditions 7 and 9 for E04/1440 and E04/1542 respectively. The condition proposed for these two licences states: ‘The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on [insert relevant reserves and areas]’ (see Attachment 3 of this decision for specific reserves listed in each licence’s conditions). The Government party states that this ‘is referred to as a ‘no mining condition’ as practically, especially in the case of these tenements, the Minister will not grant permission to conduct any exploration activities over protected areas.’ (GVP YAC reply, 39 and footnote 25).

[56] This ‘no mining condition’ is also proposed in relation to File Notation Area 9580 which sits within E04/1440. FNA 9580 is a proposed perpetual lease and access easement through Thangoo Pastoral Lease to be held by Yawuru and used as a place for camping.

[57] For the purposes of considering the s 39 criteria in this decision, I am satisfied that it is highly unlikely Kallenia Mines will conduct any exploration activities on the relevant reserve lands and FNA 9580, as specified in the proposed conditions.

Kallenia Mines’ intended activities

[58] Kallenia Mines states its main interest is ‘kaolin converted to zeolites, silica, mineral sands, alluvial diamond, specialty clays, hectorite (lithium clays) and possible and very small credit of alluvial gold in the paleo channel’ (KM Reply, pg 3). It states that exploration will initially be desk top studies followed by ‘land cruiser vehicle type based shallow drilling up to most probably 100m depth but ideally 0-30m (KM Reply, pg 5). Looking at the various correspondence parties have submitted, it is clear uranium exploration was an ongoing and seemingly unresolved issue in the context of negotiations. In its contentions in reply, Kallenia Mines states that ‘uranium is on the back burner’, however KM Contentions request ‘the Member in his decision not to ban or impede uranium exploration’.

19

Findings on the Section 39 criteria

Section 39(1)(a)(i) – effect of the act on the enjoyment of registered native title rights and interests; and section 39(2) criteria – existing non-native title rights and interests and use of the land

Yawuru’s enjoyment of its registered rights and interests

[59] The registered native title rights and interests for Yawuru are recorded on the National Native Title Register following determination of their native title claim by the Federal Court (see Rubibi v Western Australia). These native title rights and interest are set out in full at Attachment 5 of this determination.

[60] As outlined at paragraph [7], Yawuru hold exclusive native title within four of the five application areas. Both Yawuru and the Government party note that due to the existence of pastoral leases, Yawuru does not currently enjoy exclusive native title over these areas (GVP YAC Reply at 31; Yawuru Contentions at 8.13). As such, the Government party contend, Yawuru has no right of exclusive native title currently exercisable or enjoyable in the proposed tenement areas. Without conducting a detailed analysis of the underlying tenure of each application area I cannot be certain that there are no areas over which Yawuru is currently able to exercise its right of exclusive native title. I am satisfied that, due to the tenure overlapping the licences (in particular the various pastoral leases), there are few, if any, areas within the licences where Yawuru are presently able to exercise exclusive native title rights.

[61] Yawuru has provided detailed and extensive affidavit evidence and supporting documentation that shows enjoyment of its registered rights and interests through the following:

 On country activities: hunting, camping, fishing, collecting bush tucker, visiting country;

 Land management activities: planning and management of flora, fauna and water resources, protection of significant sites and songlines, granting ‘permission’ to access country where appropriate;

 Cultural and spiritual activities: intergenerational teaching, conducting law business, traditional corroborrees or dance performances. 20

[62] It is clear from the evidence provided by Yawuru that certain areas within E04/1440 and E04/1542 are extremely culturally important and are used frequently and intensively for conducting all of the above activities. All four affidavits provided by Yawuru state that E04/1440 is an area of particular importance for a number of reasons. Mr Thomas Edgar says this tenement area is traditionally known as Marrar and is ‘the centre of traditional Yawuru culture’ (TE Affidavit at 10).

[63] As explained in the affidavit of Debra Pigram, the Yawuru community entered into Indigenous Land Use Agreements with the State Government and, as part of these agreements, received among other things land grants. These areas of land have been set aside to become conservation estates held by Yawuru and jointly managed by Yawuru, the Department of Parks and Wildlife and the Shire of Broome. The Yawuru Conservation Estate area is split into a proposed Marine Park and, for the area of the conservation estate covering land, the Birragun Conservation Park. Ms Pigram’s affidavit states because the area of E04/1440 is so important, Yawuru fought hard to protect it during compensation negotiations with the State. She states ‘[i]n particular, we fought hard to protect the spring at Marrar and to get a place in that area where Yawuru people and their families could go and practice our law and culture in peace in our country.’ (DP Affidavit at 52). Yawuru have provided cultural management plans for the Yawuru Conservation Estate, the Marine Park and Birragun Conservation Park (see DP-3, DP-4 and DP-5 respectively). The map below is contained in the Birragun Conservation Park cultural management plan and details the areas designated for each of these parks. 26.7% of E04/1440 and 9.3% of E04/1542 are covered by the Yawuru Conservation Estate area. The remaining three licences are not affected. 21

Map excerpt from DP-5, pg 11

[64] Ms Pigram also describes an initiative in which Yawuru are developing an Indigenous Protected Area (IPA) over parts of Yawuru land and sea. Annexed to Ms Pigram’s affidavit is the draft IPA Plan of Management (POM). Ms Pigram states the POM has been endorsed by the WA Department of Premier of Cabinet and they are working 22

towards having the IPA declared in 2016. The POM states (at pg 15), the area of the IPA will overlay the entire Yawuru Conservation Estate as well as additional areas within Roebuck Plains station. Ms Pigram states a team of Yawuru Country Managers has been established and have started management activities in the area already. These activities include flora and fauna monitoring, fencing culturally and ecologically significant sites, surveying potential archaeological sites and establishing ground water monitoring stations.

[65] The affidavits of Ms Pigram and Mr Thomas Edgar also discuss the perpetual lease held by Yawuru for the purpose of establishing a campsite for the Yawuru community. This lease is located in the south west portion of E04/1440. Mr Edgar’s affidavit states ‘Yawuru people will be able to go there and camp. The plan is to put shelters there to make it easy. It will be a private place for Yawuru people to be on their country without tourists or others.’ (TE Affidavit at 22). Ms Pigram states ‘[t]he new lease will mean that Yawuru people have guaranteed access to that area through the easement, and a safe place to stop and camp for ceremony, for fishing and hunting, and to just be there to connect to country.’ (DP Affidavit at 59). Ms Pigram also points out that the easement continues past the camping area to the boundary of the Birragun Conservation Park, meaning access to the park is also guaranteed.

[66] Evidence of Yawuru’s enjoyment of its registered rights and interests outside of the conservation estate and in the other three licences is less detailed and extensive. In relation to E04/1456, Mr Thomas contends (at 35-36) there is good hunting in this area, including kangaroos, bush turkey, porcupine, bilbies and feral camels. He states people hunt out there almost every weekend. Ms Pigram states (at 65-66) this licence area is very culturally significant and the area east of the highway is important for animals. Ms Dianne Appleby states the area west of the highway in this licence is good for flora and fauna and the area east of the highway is one of the main places she goes camping.

[67] Both E04/1543 and E04/1544 overlap the Roebuck Plains pastoral lease, an area Ms Pigram contends (at 79) is in very high use by Yawuru people for hunting and camping. She states she goes out there with family to teach them about country, emphasising ‘you have to do it on country to get the proper meaning.’ (DP Affidavit at 82). Mr Francis Djiagween states (at 38) the area is good for hunting, right to the edge of Roebuck Plains Station, with the eastern end being more for hunting kangaroo 23

and turkey, as well as wild pig and collecting bush medicine. Mr Edgar states ‘red kangaroos used to be all around but because of all the people in Broome and all the activity on Roebuck Plains they are getting pushed back. This area where E04/1543 and E04/1544 cross into Yawuru Country is one of the last places near Broome where you can still find them.’ (TE Affidavit at 67).

Effect on the enjoyment of native title rights and interests

[68] Yawuru contends any grant of E04/1542, E04/1543 and E04/1544 (being licences within areas of determined exclusive native title) without their consent would impact on Yawuru’s native title right of exclusive possession. Yawuru accepts enjoyment of this right is tempered by the rights of the pastoral lease, however, it argues the grant of these licences would still breach the cultural obligation of seeking permission to access their country.

[69] Yawuru contends it adheres to the principle of free, prior and informed consent as a modern form of the cultural obligation to seek permission to access country. It states ‘this is particularly the case when controversial projects such as fracking and uranium exploration are proposed.’ (YAC Contentions at 4.6). As support for this contention, Yawuru point to the ‘Uranium Exploration’ clause from the draft agreement that was subject to negotiations with Kallenia Mines prior to the lodgement of these applications. This clause proposes the proponent undertake to not conduct any uranium exploration without the free, prior and informed consent of the Yawuru community. Yawuru explain the process of free, prior and informed consent involves community consultations, presentations from independent experts, and the giving of opportunities to members of the Yawuru community to ask questions of experts and proponents. As stated earlier in this decision, uranium was an unresolved topic of negotiations and there is no indication in the material before me that Kallenia Mines agreed to this clause, but I accept that Yawuru see this as part of the permission seeking process they would like proponents to follow. The contentions note Yawuru has expressed a strong desire uranium not be mined on its land based on the damage to country reported by other Aboriginal groups where uranium mines have gone ahead. 24

[70] Yawuru also contend the grant of these licences would affect its right to care for and protect country. It states that this is especially the case where particularly culturally and environmentally sensitive parts of country are concerned.

Government party’s contentions

[71] The Government party address the contention that entering onto land without first seeking permission from the Yawuru community breaches their traditional cultural obligations. The Government party reiterate their contention that areas where exclusive native title has been determined are for the most part subject to other tenures, such as pastoral lease. As such, Yawuru’s right to control access has been suppressed and they are not entitled to enforce a right of exclusive possession against all others. The Government party contends this tradition of seeking permission from Yawuru may be a consideration for grantee parties but it is not a right that Yawuru can enforce.

[72] The Government party’s reply states the cultural management plans submitted by Yawuru provide a good indication of how the Yawuru community enjoy their right to care for and protect their country. However, the Government party’s reply also notes these plans relate to areas entirely covered by reserve lands and therefore exploration activities will be prohibited under the conditions proposed (see [55]). I note this same argument can be made for the perpetual lease designated as camp grounds which is entirely covered by FNA 9580 (see [56]).

[73] The Government party state there is no evidence to indicate the grant of the licences will interfere with Yawuru’s non-exclusive right to care for country. It states ‘[t]he areas singled out in the affidavits fall within reserves...and as such are protected by the draft endorsements and conditions’ (GVP YAC Reply at 45).

Existing use of land or water by persons other than native title parties

[74] In determining these matters, I must also consider the nature and extent of any existing use of the land by persons other than native title parties and existing non- native title rights and interests (s 39(2)). The Government party contend any effect these licences may have on the rights and interests enjoyed by Yawuru must be considered in light of interference which is already occurring through other interests and use. 25

[75] Due to the restrictions imposed by the conditions, I can infer that Kallenia Mines’ exploration activities will primarily be conducted over areas of pastoral lease holdings. I can assume these pastoral interests will already have had some impact on the extent to which rights and interests can be enjoyed by Yawuru in these areas. However, I also note that Roebuck Plains and Myroodah are Indigenous-held pastoral leases. As such, the usual assessment of likely prior interference caused by this interest does not necessarily apply (see Monadee v Western Australia at [28]). As explained in the affidavit of Ms Pigram (38-39), Roebuck Plains pastoral lease was assigned by deed of grant to the Yawuru Community in 2014. Yawuru contentions state it is an important social, cultural and economic structure for the Yawuru community as it ‘ensures continued access to the pastoral lease area for use by the Yawuru Community, as well as providing economic opportunity.’ (YAC Contentions as 10.7).

[76] The Kimberley De Grey stock route passes through a significant portion of E04/1440 (29.6%) and to a lesser extent E04/1542 (4.8%). Yawuru contend the only impact to its rights and interests caused by the stock route is the extinguishment of exclusive possession, as it does not restrict Yawuru’s access to the land. I note the proposed condition relating to the stock route area, which states no exploration activities are to be carried out which restrict the use of the reserve. I assume this to mean large scale drilling or any activities that would impede access are unlikely over this area.

[77] In relation to the petroleum exploration permits that operate over almost the entirety of the licence areas, Yawuru contend they hold agreements with the proponent of these permits. These agreements govern the interaction between the two parties and ensures any impacts on Yawuru’s enjoyment of their native title in these areas is well managed, compensated, and/or minimised (YAC Contentions at 8.12). They state this proponent complies with the Yawuru cultural protocol of ‘Show Respect and Ask First’ and the traditional requirement of permission seeking.

Consideration

[78] Section 39(1)(a)(i) directs me to consider the registered native title rights and interests enjoyed by Yawuru over these licence areas, determining whether and to what extent they will be affected by the proposed activities of Kallenia Mines, and to take that into consideration when making my finding. The affidavits submitted by Yawuru indicate 26

a range of activities that occur over the licence areas and I accept that the registered rights and interest of Yawuru are enjoyed to various degrees over all five licences.

[79] It is clear that E04/1440 covers an area of particular significance and high community use. Evidence describes frequent use of this area for hunting, gathering food and medicine, camping, and conducting cultural practices, including law business and dancing ceremonies. To the extent it is covered by the Yawuru Conservation Estate, this also rings true for E04/1542. Arguably, a key reason for Yawuru negotiating the establishment of this estate in their compensation package was to ensure the community could enjoy these various rights and interests over this important stretch of coast, largely uninterrupted, and it is clear from the evidence that the Yawuru community are utilising this ability. Were it not for the ‘no mining’ condition proposed for the areas covered by the Yawuru Conservation Estate and the proposed campground, I believe the risk of interference with these activities by the activities of Kallenia Mines would be high. However, with the operation of this condition, I believe it is highly unlikely Kallenia Mines will conduct any activities within these areas and therefore I believe the risk is sufficiently mitigated.

[80] I acknowledge Yawuru have certain rights and responsibilities in regards to caring for country, but due to the imposition of the ‘no mining’ condition, the areas which appear to be particularly sensitive will not be entered by Kallenia Mines. In considering Yawuru’s contention regarding the right for permission to be sought from them before entering an area, I agree with the Government party’s reply. This right is an element of Yawuru’s native title which goes to exclusivity and, as discussed previously in this decision, the elements of Yawuru’s native title which go to exclusivity are suppressed by the pastoral leases while they exist. As such it is not a right that Yawuru can enforce.

[81] Activities enjoyed by Yawuru in areas outside of the Yawuru Conservation Estate appear to be limited to hunting, some camping, and the activities outlined in the IPA POM over Roebuck Plains station. I have had regard to the fact that there appears to be little interference currently occurring via the other interests over the area. However, there is no evidence before me that would suggest Yawuru’s activities are not capable of coexistence with the exploration activities of Kallenia Mines. I have also had regard to the fact that exploration activities are generally of a limited duration over smaller areas of land. Despite the fact that Kallenia Mines have provided limited 27

information in terms of their exploration schedule, I can assume its activities will likely be conducted sequentially across the project area rather than occupying the entire area at the same time, as is generally the case with exploration programs. I also note, as per condition 5 on each of the licences, the licensee is to notify the holder of any underlying pastoral lease prior to undertaking any exploration work over the area. Therefore I can assume that the Yawuru community, being the holders of the Roebuck Plains station, will be notified of Kallenia Mines’ activities in this area prior to them taking place.

[82] I conclude that the effect of the grant of the licences on the exercise or enjoyment of Yawuru’s native title rights and interests in the area covered by the conservation estate is nil. In the remaining areas, I find any interference is likely to be incidental and insubstantial.

Section 39(1)(a)(ii) – effect on way of life, culture and traditions

[83] I note many of the activities described in the previous criteria are relevant to my considerations here. In addressing this criteria, Yawuru repeat its contentions from s 39(1)(a)(i) regarding the obligation to protect country and for permission to be sought from the Yawuru community prior to accessing land. While the Government party note this contention in their reply, they do not directly address it. However, I will take into account their contentions in reply made in relation to s 39(1)(a)(i) to the extent it relates to this criteria. Specifically, Yawuru’s native title rights in these areas are non- exclusive and many of the places singled out as being particularly sensitive will have conditions placed over them prohibiting exploration.

[84] Yawuru’s contentions relating to E04/1440 stress this area’s importance but, in demonstrating this contention, focus largely on areas that will be covered by the ‘no mining’ condition. In relation to E04/1546, all four affidavits provided by Yawuru state the portion of this licence situated west of the Great Northern Highway (an area approximately 10 kms wide which abuts E04/1440) is as culturally significant as E04/1440 and is a ‘no go area’ (TE Affidavit at 33).

[85] In relation to E04/1542, Yawuru’s contentions argue the area covered by Roebuck Plains has a high level of accessibility for hunting, as shown in the IPA POM. It goes on to state that given this is such a high use area, any disruption to the area may cause issues for people and this risk is magnified given the seasonal nature of hunting 28

practices. Yawuru point to the cultural management plans provided which detail the six seasons that operate in the area and the best times of year for hunting certain animals and collecting certain foods. Ms Pigram’s affidavit states certain things, for example collecting certain fruits, must be done during a particular season and if an area is blocked off due to exploration activities, it can mean those things cannot be done at all that year. Yawuru’s contentions state this could mean certain foods or medicines cannot be collected or, more critically, certain ceremonies cannot be conducted.

[86] Yawuru’s contentions addressing E04/1543 and E04/1544 focus on the importance of hunting and camping in this area. Mr Edgar’s affidavit describes the area where these two licences cross into Roebuck Plains as one of the last places near Broome where red kangaroos can still be hunted. Mr Edgar states they used to be all around but ‘because of all the people in Broome and all the activity on Roebuck Plains they are getting pushed back.’ (TE Affidavit at 67).

[87] The Government party acknowledges sufficient evidence has been provided to show certain areas are used for hunting and gathering food but argues there is no evidence to suggest the licences would have any effect on these activities. The Government party reiterates it is highly unlikely Kallenia Mines would be using every part of the licences at all times, and many of the areas described fall within the conservation estate therefore no exploration activities will take place there.

[88] Government party contentions highlights the rights conferred to Kallenia Mines will be regulated by various State and Federal regulatory regimes. It lists, in addition to the Mining Act and Mining Regulations 1981 (WA), the various State regimes that will apply, including the Environmental Protection Act 1986 (WA), the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), the Aboriginal Heritage Act 1972 (WA), the Wildlife Conservation Act 1950 (WA) and the Rights in Water and Irrigation Act 1914 (WA).

[89] As described already in this decision, the evidence regarding the importance and use of E04/1440 is clear, however, the areas of particular importance and high usage seem to be along the coast line where the ‘no mining’ condition will apply. There is also a significant portion of this tenement covered by the Kimberley De Grey stock route. Although Yawuru state they still enjoy access to this area, I believe it is likely to have 29

had some effect on the life, culture and traditions of Yawuru in that specific area. I also note the proposed condition that prohibits any exploration activities which would restrict its use as a stock route. As such I find it unlikely that activities such as extensive drilling would take place there. In the remainder of the area covered by E04/1440, and in the area of E04/1546 situated west of the highway, I believe the grant of the licences is likely to have some effect on the way of life, culture and traditions as outlined by Yawuru. However, given the small size of these areas compared to the overall size of the project, I don’t believe this effect will be substantial.

[90] I also accept there is some risk of interference with Yawuru’s hunting and gathering of food, and this risk is exacerbated when these activities are seasonally dependant. However, as highlighted in Yawuru’s contentions, there is a high level of accessibility to Roebuck Plains so it is unlikely the activities of Kallenia Mines are going to prevent Yawuru accessing the area as a whole.

[91] I have had regard to the regulatory regime described by the Government party and also the nature of exploration activities generally, which are more likely to be localised and temporary. On the balance of the evidence before me, I find the grant of these licences may have a minor effect on Yawuru’s way of life, culture and traditions, but the effect would be insubstantial for the purposes of this criteria.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

[92] Yawuru’s contentions state it relies on the entire contents of the cultural management plans for the Yawuru Conservation Estate, the Marine Park, Birragun Conservation Park and also the draft IPA for the POM as evidence of the social, cultural and economic structures of the Yawuru community. As noted by the Government party in its reply, these four documents make up a large volume of material and relate to many irrelevant areas. For this reason the Government party’s reply relates only to the parts of those documents which have been specifically identified as relevant in Yawuru’s contentions. I accept these documents do contain some relevant information regarding the social, cultural and economic structures of the Yawuru community, however I reiterate my comments at [17] that parties should be presenting cogent and directed contentions rather than relying on the Tribunal (and other parties) to extrapolate the relevant information from extensive supporting material. 30

[93] Yawuru collectively address E04/1440, E04/1546 and the Thangoo pastoral lease, which underlies these two licences, stating the perpetual lease on Thangoo station is vitally important for improving accessibility of cultural areas for the Yawuru community. It states the purpose of the lease includes social and cultural development. Yawuru stresses the cultural importance of the coastal areas of these licences, as indicated by the Special Purpose Zone (Cultural Heritage) designated in the Marine Park and Birragun Conservation Park plans. Yawuru’s contentions state the imposition of this tenement over this zone within the parks will damage the development of these structures, ‘particularly with respect to those special cultural zones which will be restricted to access by senior Yawuru law men.’ (YAC Contentions at 10.4).

[94] I am satisfied there are positive and strong social, cultural and economic structures currently operating within the Marine Park and Birragun Conservation Park. However, due to the proposed conditions I do not believe the grant of these licences will have any negative impact on these structures.

[95] Yawuru collectively address E04/1542, E04/1543, E04/1544, being the licences that encroach on Roebuck Plains pastoral lease. It states divestment of this lease to the Yawuru community provided an important social and economic structure by ensuring continued access to the area and providing economic opportunity through the pastoral operations.

[96] The Government party’s reply acknowledges these structures described by Yawuru but states there is no evidence or information to show how they would be affected and in the absence of such information it should be assumed the licences will have no affect on these structures.

[97] I agree with the Government party’s contentions that there is nothing before me which would indicate these structures would be affected in any significant way. I can assume that being the holders of the pastoral lease will mean that Yawuru’s continued access to the area broadly will not be at risk and I do not believe the rights afforded to Kallenia Mines would impinge on the economic structures that operate through the pastoral operations.

[98] Yawuru contends the planned IPA is an important part of the community’s social, cultural and economic structures, as set out in the IPA POM. The POM appears to 31

show the IPA as covering the area of the Yawuru Conservation Estate as well as Roebuck Plains pastoral lease. Yawuru highlights the aspirations outlined in the POM which the community hopes to achieve in the next 10 years, including various cultural and ecological resource education, management and protection strategies. Yawuru points out that unmanaged vehicle access, as might be the result of mineral exploration, mining resource exploration and development, and loss of opportunities to access country due to tenure changes are all listed as threats to country in the POM.

[99] The Government party’s reply states the reserve areas over which the POM applies (being the area of the Yawuru Conservation Estate) will be protected from exploration under the proposed conditions. The Government party also notes the POM describes the threat posed by exploration only in the context of the ‘oil and gas exploration programs of the Canning and Browse Basins’ (IPA POM, pg 45) and this is irrelevant to the current tenements.

[100] Although the IPA POM specifically describes oil and gas exploration in the Canning and Browse Basins as a threat, I am satisfied that to some extent this threat would equally apply to other types of exploration in other areas of the IPA. I see the threat of unmanaged vehicle access over Roebuck Plains pastoral lease as less relevant. Yawuru have already noted the high level of accessibility to the pastoral lease (as outlined at pg 23 of IPA POM) and the POM appears to focus on this risk in relation to the coastal landscape.

[101] Overall I see the IPA, and the POM that will underpin it, as evidence of the development of cultural, social and economic structures by the Yawuru community. However, I see one of the key benefits of establishing this type of formal land management plan is to ensure Yawuru’s ability to continue to develop these sorts of structures despite the various risks that may arise. Overall, I see the grant of these licences as posing very minimal risk to the development and continuation of Yawuru’s social, cultural and economic structures. I also see the POM as providing a plan for mitigating any risks that may eventuate.

[102] Given the size of the company and the nature of the proposed work, there is little likelihood of any positive economic benefits flowing to Yawuru as a result of the grant, save for any fee-for-service activities such as cultural heritage clearance work which may be required. 32

[103] I find, based on the evidence before me, that the grant of these licences will not have any significant effect on the development of Yawuru’s social, cultural and economic structures.

Section 39(1)(a)(iv) – freedom to access the land and freedom to carry on rites and ceremonies and other activities of cultural significance

[104] Yawuru’s contentions state the importance of access to country is outlined at page 27 of the Marine Park plan. I note the following statements found in this section of the plan:

Although Yawuru country extends inland for over 100km, the Yawuru people consider themselves to be saltwater people... Therefore, their ability to access the coast and sea within the conservation estate for customary practices is particularly important...

Access restrictions to some terrestrial areas are proposed under the complementary planning process for the adjacent Yawuru Birragun Conservation Park. This includes land areas adjacent to the special purpose zones (cultural heritage) of the proposed marine park... These measures are provided for under the Yawuru Agreements and seek to establish land-based ‘cultural purposes only’ areas to allow Yawuru people to undertake customary practices on country in private.

[105] Yawuru reiterates its contentions regarding the seasonal nature of certain activities and stresses that if certain areas are not accessible due to exploration activities, even for a short period of time, it could mean the Yawuru community cannot perform that business at all that year.

[106] Yawuru rely on contentions provided for ss 39(1)(a)(ii) and s 39(1)(a)(v) as indication of the presence of areas where rites and ceremonies may be performed.

[107] The affidavit of Mr Thomas makes reference to law grounds located within E04/1440 and E04/1542 as well as potential burial sites. The affidavit of Ms Pigram attests to seasonal business that occurs in the wetlands area of E04/1440. She also discusses the use of the perpetual lease camp site as a place for ceremony and law business and Roebuck Plains pastoral lease as a place for intergenerational teaching.

[108] The evidence before me indicates the areas most frequently accessed by Yawuru and used for activities, including rites and ceremonies, are the Marine Park, the Birragun Conservation Park and Roebuck Plains pastoral lease. For reasons already described in this decision, I see no threat to Yawuru’s ability to access these areas posed by the grant of the licences. Although Mr Thomas has not specifically stated the sites referred to in his affidavit fall within the parks’ area, it would seem probable they do. 33

I accept there is a slight risk that certain discreet areas where exploration activities are being conducted may be inaccessible to Yawuru for a period of time for safety reasons. However, there is insufficient evidence to show this will significantly impact Yawuru’s ability to carry out its various culturally significant activities.

Section 39(1)(a)(v) – effect on areas or sites of particular significance

[109] Yawuru’s contentions state there are sites of particular significance located within and around the proposed licences, as outlined in its accompanying affidavits. Each affidavit mentions a number of different sites, including law grounds, songlines, and men’s and women’s places. For the most part the references to these are brief with minimal information describing their use, location or particular significance to the Yawuru community. The sites of Marrar, the Sheep Camp and Ungani Lakes stand out from the various sites mentioned due to the fact they are either described in greater detail; discussed by multiple deponents; and/or the affidavit evidence is supported by other informed or ‘expert’ material.

Marrar

[110] The affidavits of Ms Pigram, Mr Edgar and Mr Djiagween all refer to a site or area known as Marrar located within E04/1440. Mr Edgar states that E04/1440 ‘is an area known traditionally as Marrar. It’s is [sic] a very important area – it is the centre of traditional Yawuru culture.’ (TE Affidavit at 10). He voices concern over the right afforded under an exploration licence to excavate up to 1000 tonnes of material, stating ‘I do not think there is any way that that could be done in that area without damaging one or more of the significant sites in Marrar’ (TE Affidavit at 32). Mr Djiagween states that he knows the area of E04/1440 very well, that the area is called Marrar and that ‘[a]ll of that coastal area is very important to Yawuru people.’ (FD Affidavit at 16). Ms Pigram states that an area of the Yawuru Conservation Estate, now established as part of Reserve 51932, was created especially to cover the culturally significant spring at Marrar.

[111] Although it is never specifically named as part of the Marrar area, there is evidence to indicate that the western end of E04/1546 (which abuts E04/1440) holds a similar importance. Mr Edgar states that the portion of E04/1546 ‘west of the highway, is in the same cultural area as E04/1440. It is a no-go area.’ (TE Affidavit at 33). Ms 34

Appleby states ‘[s]ame as E04/1440, the part of E04/1546 that is west of the highway is very culturally significant. Even when driving along the highway though there we aren’t allowed to make a loud noise’ as this might wake up the spirit people in there (DA Affidavit at 25). She also states there is a women’s place in this area that she cannot talk further about.

[112] The Birragun Conservation Park management plan, annexed at DP-5 of Ms Pigram’s affidavit, makes reference to Marrar. Section 6.1.1 of the plan addresses access management to restricted access areas and specifically refers to the need for roads and tracks to be developed to provide Yawuru people access to the Marrar law ground, located in the southern part of the Birragun Conservation Park.

[113] The Government party’s contentions focus on the DAA registered site named ‘Mararr’ as being the place which Yawuru’s contentions refer to. It contends that this registered site falls within reserve lands and therefore will be protected by the ‘no mining’ condition. I see two issues with this contention. Firstly, only a small portion of the DAA site is covered by reserve lands with the majority falling on pastoral lease. The western portion of E04/1546 is almost entirely pastoral lease, therefore there is nothing preventing exploration in those areas. Secondly, it seems clear from the evidence before me that references to Marrar in Yawuru’s affidavits is not a reference to the DAA site. Rather it describes a broader area, or ‘cultural hub’, which is of great importance to the Yawuru community due to its high usage as well as a high density of significant sites.

[114] Despite making these points regarding the Government party’s contentions, I acknowledge that much of the area which appears to constitute Marrar in the broader sense is covered by reserve lands. Ms Pigram specifically notes that the culturally significant spring is covered by reserve. The law grounds located in the Birragun Conservation Park would also be covered by reserve lands. Although the affidavits point out that it is the entire area of E04/1440 plus the western portions of E04/1546 that are culturally significant and ‘no-go’ areas, the evidence does not support this entire area being of particular significance (that is of special or more than ordinary significance).

35

The Sheep Camp

[115] The contentions of Yawuru state there is an archaeologically significant site in the area of E04/1542 known as the Sheep Camp. The affidavit of Mr Edgar makes reference to this site, stating that it is located at the southern edge of E04/1542 near where the proposed licence crosses the highway. Mr Edgar states that the Sheep Camp area is significant because there are a lot of sites in that area, there is a very important freshwater spring there, and Yawuru people used to live in that area. The affidavit of Mr Djiagween states ‘from Kunin through Crab Creek (north of E04/1542 on the coast) through Sheep Camp where the road crosses the tenement and then east through Roebuck Plains Station there is man’s business that I cannot talk about. That whole area is used and you can’t go near that place.’ (FD Affidavit at 28).

[116] Yawuru have also provided a report (YAC Contentions annexure Y-19), dated 2016 and authored by V Semeniuk and P Clifford of V & C Semeniuk Resource Group (‘VCSRG’), which provides information and ‘expert opinion’ on the Sheep Camp. The introduction of the report states:

Following on from the preliminary work in 2014, VCSRG undertook further studies in 2015 of the Sheep Camp archaeological site, and other archaeological sites on and adjoining Roebuck Plains and, for a regional comparative perspective, other archaeological sites generally in the Broome region. This document reports on the results of the study.

[117] The report describes the Sheep Camp archaeological site as being 30m in diameter, 100m2 in area and located ‘on the end of a red/orange-sand linear dune near its contact with the Roebuck Plains’ (pg 6). It states the site is comprised of shell and stone artefacts which are scattered on the surface and also to a depth of 1.5 meters below the surface. The report describes a jila, or permanent ground water source, located in the Sheep Camp area. It states the importance of this site archaeologically is that it would be a source of fresh water for Indigenous gatherings and it would be part of the archaeological history of the area. At pg 16 the report concludes by stating that ‘in VCSRG’s expert opinion, the Sheep Camp Site is highly significant to the Australian community’. It also states at this point that based on its work on Roebuck Plains ‘there is only one other site of archaeological significance within the area of E04/1542 and that is the finger of linear dune immediately to the north of the Sheep Camp site (and should be viewed actually as part of the Sheep Camp ensemble).’ 36

[118] The IPA POM submitted by Yawuru states that Sheep Camp was one of the main Yawuru living areas until the 1960s. It states there is a series of culturally significant springs and ancient embayments in this area which are surrounded by distinctive vegetation and many midden sites. It describes plans to renew fence enclosures around three springs, the most westerly of which will include the nearby sand dune midden/s.

[119] In addressing the Sheep Camp site, the Government party contends that even if this archaeological site is one of importance, there is nothing to support a finding that it is of ‘particular significance’. It also addresses Yawuru’s concerns regarding potential damage to or interference with the archaeological site. It states that, assuming the site meets s 5 of the AHA, interference or damage would not occur other than by compliance with the AHA and there is presently no suggestion that such interference is proposed.

[120] I agree with the Government party’s contentions on this point. Although it is clear from the evidence that the Sheep Camp site is a unique archaeological site, and holds considerable significance as such, the evidence does not explain its particular significance to Yawuru in accordance with its traditions. The operation of the AHA will presumably provide some protections and Yawuru’s plans to fence off some or all of this area, as described in the IPA POM, will presumably make it more readily identifiable, thereby helping to avoid any inadvertent interference.

Ungani Lakes

[121] The IPA POM describes Ungani Lakes as a ‘series of ephemeral lakes’ located on Roebuck Plains station. Tribunal mapping shows these lakes to be located on the northern edge of E04/1542, east of Roebuck Plains. Yawuru’s contentions note that these lakes form part of the Roebuck Plains wetlands of national significance and are an important area for Yawuru people. Mr Edgar states these lakes are significant because they are a fresh water place that attracts lots of animals, bush food and medicine so they are a good place for hunting and gathering. He states there is plenty of evidence of the old people living around the lakes with middens ‘all through that area’. He also states there are ‘some law grounds and other special places in that area, where the sand hills are.’ (TE Affidavit at 60). Mr Djiagween states the Ungani Lakes are a very important place. He also states there are ‘two hills near there that I can’t tell 37

you about that no one should go near. If those hills were disturbed it wouldn’t just be trouble for Yawuru – Mangala people would also be upset.’ (FD Affidavit at 27).

[122] The Government party’s reply states that E04/1542 does not overlap the wetlands of national significance (being Ungani Lakes) as the wetlands are not available for grant. This relates to the issue discussed at [47]-[49]. As I stated earlier, the fact that the Government does not intend to grant this area of land does not exclude it from my considerations, however these intentions are something I can take into account. I am satisfied, based on the Government party’s contentions and supported by Quick Appraisal evidence, that the Ungani Lakes will not be available to Kallenia Mines for exploration.

Section 39(1)(b) – effect on interests, proposals, opinions or wishes of Yawuru in relation to the management, use or control of land or waters

[123] Yawuru have put forward the Marine Park Plan, the Birragun Park Plan, the draft IPA POM and the Yawuru Cultural Management Plan as evidence of the interests, proposals, opinions and wishes of the Yawuru community for the future use and management of the land and waters concerned, in particular for areas of E04/1440 and E04/1542.

[124] Yawuru contend that an overarching value of the IPA, as set out in the draft POM, is that Yawuru people have a cultural responsibility to take care of country. It states that the grant of E04/1440 and E04/1542 will effect this proposed POM as it will include the grant of certain rights, for example the right to dig holes, sink bores and divert water sources, which contradict Yawuru’s wishes for the area.

[125] Ms Pigram states that Yawuru ‘is not against exploration or mining in general, but these particular tenements are very worrying to us because they are in the flood plain, the old river bed and on that Marrar coastal area.’ (DP Affidavit at 91). She goes on to acknowledge that these proposed tenements are for exploration rather than mining, but states that as a native title holder they must think ahead and assume a mine will come out of it and there is no point doing mineral exploration in a place where a mine should never go. Ms Pigram voices particular concern at uranium exploration and mining in this area, stating that the Yawuru community would be very against uranium exploration and mining on the flood plain or in the marshland where there is a risk of runoff and contamination, particularly to Roebuck Bay. In addition to these 38

statements made by Ms Pigram, Mr Edgar has stated that he would not like to see uranium mining or exploration on Yawuru land due to the risk of contamination.

[126] I acknowledge that, particularly in the context of negotiations, it may be prudent and practical for Yawuru to think ahead to the real possibility that uranium mining may result following exploration. However, for the purposes of my task in this matter, my considerations must be confined to the proposed act, being the grant of the exploration licences, and the rights that are afforded under those licences. Any consideration of the rights afforded under a mining lease and their potential effect on these areas falls outside the scope of this determination.

[127] The Government party have addressed Yawuru’s concerns regarding uranium by stating that there is nothing in the evidence to show that Kallenia Mines will not comply with the regulatory regime. It states that evidence provided by Yawuru regarding other grantee parties who have contravened the law is irrelevant unless it can reasonably lead the Tribunal to a conclusion that Kallenia Mines will do the same and there is no evidence in this matter to support such a conclusion.

[128] In Richmond v Walalakoo, further information was sought from the Government party regarding its regulatory regime and specifically how it addresses uranium exploration. I have taken the information provided by the Government party (and outlined at [59]- [61] of that decision) into account in this matter. In particular I note that, should any drilling be proposed, Kallenia Mines is required to produce a Radiation Management Plan. This must address, among other things: procedures for identifying and monitoring radioactive material; strategies to minimise potential radioactive contamination; and processes to minimise human exposure to radioactive material.

[129] In relation to E04/1542, E04/1543 and E04/1544, Yawuru states that the wish of the community is to develop opportunities on Roebuck Plains Station, including eventually managing the pastoral operations. It argues that an increase in exploration activity could adversely affect pastoral operations and negatively impact its benefits to the Yawuru community.

[130] As noted in the Government party’s reply, Yawuru have provided no evidence to support this claim and its basis is unclear. As such, I do not give any weight to the argument that increased exploration on the Roebuck Plains Station could negatively impact the benefits Yawuru receive as holders of this pastoral lease. 39

[131] In conclusion, I find that little weight should be given to this criterion. In reaching this conclusion there are two relevant factors I have taken into consideration: Yawuru do not currently enjoy exclusive native title over the areas where exploration activities are likely to occur; and, no significant impact in relation to the matters set out in s 39(1)(a) has been established.

Section 39(1)(c) – economic and other significance

[132] The Government party contends that the grant of these licences will be of economic significance to the nation, the State and the local region through royalties (to the State) and export income (for the nation). It states there is also likely to be benefit to the local community in and around the general area although no specifics have been provided to support this claim.

[133] Yawuru argues that Kallenia Mines has not provided any evidence of the economic or other significance of the tenements therefore the conclusion should be that their significance is minor at best. Yawuru points to correspondence from Kallenia Mines in which it states there are no employment opportunities for local Indigenous persons other than ‘highly qualified geophysicists/consultants’ (KM Contentions, annexure 7, pg 4).

[134] In considering this criteria I note the following principles set out in Richmond v Walalakoo:

 This criteria requires an evaluation of the specific future acts in question and their economic or other significance; it is not a consideration of the broader importance of exploration and mining to the economy (see also Drake Coal v Smallwood at [102]);  I am also required to consider the significance of the future acts to Indigenous persons generally who live in the area; this consideration is not limited to the determined native title holders of the area only;  Due to the nature of an exploration licence, evidence regarding the benefits that will accrue as a result of the future acts are generally speculative at this stage;  The scale of the grantee party’s operations is an important consideration. 40

[135] There is no specific evidence before me regarding the economic or other benefits that would stem from the grant of these licences. Kallenia Mines has provided an exploration and geological report produced by Eaglehawk Kaolin Pty Ltd, dated April 2000 and titled The Eaglehawk Prospect Western Australia (KM Reply, annexure 18). This report appears to cover common areas to the licences the subject of this determination, and also examines the profitability of kaolin, a mineral which Kallenia Mines have identified as being one of its targets. However, no contentions have been made linking this information to these licences and I am not prepared to draw any conclusions regarding the economic significance of them based on the report.

[136] I acknowledge that Kallenia Mines’ rental payments and expenditure requirements would constitute an economic benefit to the State, albeit a relatively minor one. I also acknowledge that there may be some limited economic benefit to the local area through exploration expenditure, although this would be largely dependent on the results of preliminary work. Based on Kallenia Mines’ own submissions, it appears to be a relatively small company with limited resources and I find it unlikely that exploration activities would be conducted on a large scale.

[137] Overall I find the benefits to the local, State and national economies as a result of these specific tenements are likely to be marginal. I also find that any direct benefits to the local Aboriginal community are unlikely, with the possible exception of short term employment for the conduct of site surveys if and when necessary.

Section 39(1)(e) – public interest

[138] The Government party states that benefits to the mining industry through the development of mines, and to the economy through the accrual of economic benefits at the local, State and national level, are relevant factors. This is an extension of the Government party’s contention for the s 39(1)(c) criteria, but in this criteria I am able to look beyond the specific future acts in question and consider more broadly the importance of exploration and mining to the economy. As I found above, I am satisfied that these licences will contribute to the economy and the development of the mining industry, although I do not believe the contribution will be significant in either area.

[139] Yawuru’s contentions focus primarily on the public interest that is served by protecting the environmentally and culturally significant features of this area. It 41

contends that Roebuck Bay, particularly its unique geoheritage, declared Marine Park, and Ramsar listed wetlands, is of international significance and there is public interest in preserving these features. Once again I note that the Government party’s proposed conditions and proposed areas of grant mean that exploration will not take place over these areas. As such, I do not give significant weight to this contention.

[140] Yawuru states there is public interest is preserving the archaeological sites within E04/1542. Specifically it notes the significance of the Sheep Camp site and nearby dune, as described in the VCSRG report. The Government party has not addressed this contention in its reply. As discussed above under s 39(1)(a)(v), I see no reason to doubt the effectiveness of the Government’s regulatory regime and the protections afforded under the AHA in relation to this site. Kallenia Mines will now be aware of the existence and location of this site and can take the necessary steps to avoid any damage or interference. I agree there is public interest served in preserving this site, however the evidence does not show this licence to be a significant threat.

[141] Yawuru contends that the evidence provided shows ground and surface water movement through the tenements flows to Roebuck Bay, therefore, any contamination on any of the tenements will likely end up in the Ramsar wetlands. Although the Government party have shown that exploration will not be permitted over Roebuck Bay and the Ramsar wetlands, there is nothing precluding exploration on Roebuck Plains which sits adjacent to the wetlands. A 2009 report prepared for the Department of Environment and Conservation (‘DEC’), titled Ecological Character Description for Roebuck Bay, states (at pg 18) ‘[m]ost of the extensive grasslands east of the Bay referred to as Roebuck Plains are excluded from the Roebuck Bay Ramsar site, even though they are contiguous with the Bay and hydrologically connected... For the purposes of this report, it was often not possible to separate the values of the Ramsar site from those of coastally influenced parts of Roebuck Plains.’

[142] I accept that Roebuck Bay, the wetlands and Roebuck Plains, are all interconnected and together represent an area of significant environmental importance and sensitivity. However, I am not satisfied based on the submissions before me that the potential exploration activities of Kallenia Mines pose a significant threat to these areas. The DEC report referred to above, and also cited in Yawuru’s contentions, sets out various features of the wetlands and also identifies ‘specific threats to the ecological character of the Roebuck Bay Ramsar site and the activities that contribute to the threats’ (pg 42

96). The threat of contaminant runoff is discussed but only in the context of agriculture. I note that in this section it states there is ‘little information on water flow patterns into Roebuck Bay from Roebuck Plains. Consequently the fate of nutrients entering the system through flooding events on the Plains is unknown’ (pg 99). Groundwater extraction is also listed as a threat, however, it is not discussed in the context of mining activities, instead implying that horticultural activities on the plains pose the greatest threat to the aquifer.

[143] Yawuru have adopted paragraphs 31 to 33 of the contentions filed by Walalakoo which state, due to the conduct of its sole director, Kallenia Mines is not a party who should benefit from the suppression of native title rights. Walalakoo have argued that statements made by Mr Richmond are improper and should not be received by the Tribunal except to the extent they demonstrate Kallenia Mines is not a party who should benefit from the suppression of native title rights and interests that will occur if these licences are granted. It states the public interest in the protection of native title rights and interests should be preferred to the public interest in the continuity of mining and exploration to the extent (if any) that that latter public interest would be served by the grant of these licences. In support of this contention, Walalakoo rely on the following excepts from the KM Contentions:

3. I put the proposition forward the NTP’s don’t want mining but wish to siphon exhorbitant [sic] monies out of explorers (‘extortion’) at the different hurdles of negotiations (‘shutting the gate’) to optimise a monetary return without giving miners certainty that in the event of a discovery permission to mine will be granted. (‘The Calabrian method’) this would not be acceptable in the normal business world & may not be legal under corporations or common law?

4. I ask the question, are the subversive activities camouflaged back stage under the federal Native Title Act at the expense of ordinary Aboriginals? It appears flow on benefits to Aboriginals outside ‘Aboriginal business’ (‘gatekeepers’) are minimal because of misuse of legal tactics, it may appear the heritage access process is being hijacked for personal selfish ideological reasons.

I am not singling out any particular individual everyone has a right to earn their living & fed [sic] their kids but this appears to be collective national problem that needs dismantled [sic].

[144] I have already addressed some of the deficiencies with Kallenia Mines’ contentions at [15] – [18], however the ‘conduct’ of Kallenia Mines, in so far as this can be assessed through the contentions written by Mr Richmond, has not been specifically addressed and requires some further consideration. 43

[145] The Government party have responded specifically to Walalakoo on this point but have not addressed the argument, as adopted by Yawuru, in its YAC Reply. The Government party’s WAC Reply states (at 65) ‘[w]here the NTP has not established what effect, if any, the grant of the proposed tenements will have on the enjoyment of the determined native title rights and interests it is unnecessary to consider [this] particular contention further (including whether section 39(1)(e) requires or would permit such an inquiry).’

[146] I do not agree with the Government party’s conclusion that, unless it is established the grant of the proposed tenement will have an effect on the enjoyment of native title rights and interests, consideration of this contention is not necessary. The Government party’s question of whether it is required or permissible to consider the conduct of a party under this criteria also warrants comment. In Minister for Lands v Thalanyji, President Webb (at [266]) describes the task of the Tribunal in determining whether the proposed future act is ‘in the public interest’ as ‘a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation... There can be public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations.’ Based on President Webb’s statements, it is clear this criteria allows for a broad range of matters to be considered as relevant and I see no reason why an inquiry of this type would not be permitted under s 39(1)(e), although certainly it is not a requirement if it has not been raised by parties. I also note, were it not technically appropriate for me to deal with this question under s 39(1)(e), the criteria under s 39(1)(f) provides an even broader charter for considering relevant matters and this issue could be examined in that context.

[147] In considering the relevance of a party’s prior conduct to an inquiry of this kind, I highlight the findings of Deputy President Sumner in Seven Star v Freddie, in which the conduct of the grantee party was the primary basis for a finding that the act must not be done. DP Sumner stated (at [117]):

[T]he case involves an assessment of whether the public interest is served by making the grant and whether the grantee party’s prior conduct is a relevant factor to be taken into account. In my view, the prior conduct is a relevant factor under both ss 39(1)(e) and (f) because, if it continued, then both the capacity of the CDNTS to continue properly to represent the native title party and the capacity of the Wiluna claimants to exercise their traditional rights of looking after country including sites would be seriously impeded. 44

DP Sumner found that it was not in the public interest to grant the tenement due to the irretrievable breakdown in relations between parties and the real potential for further disputations and conflict. He concluded that this risked impacting on the capacity of the native title representative to act for its client, and on the native title claimants’ capacity to carry out their cultural obligations.

[148] What set the conduct in Seven Star v Freddie apart is the litany of inappropriate comments made by the grantee party throughout both negotiations and the arbitral process, including comments that the native title party took as threats of violence. It was clear that any future requirement for parties to communicate was likely to be unworkable. In this matter, I agree that a number of statements made in the Kallenia Mines submissions are inappropriate and show conduct that could potentially cause strain in the future relationship required between the holder of a tenement and the respective native title holders for that area. However, considering all the evidence before me, I do not believe that the conduct of Kallenia Mines generally has been shown to be so deleterious as to pose a threat to Yawuru native title holders, or Yawuru’s representatives from carrying out their functions and obligations.

[149] Considering all of the above, I am satisfied that there is very limited public interest in the granting of the proposed licences.

Section 39(1)(f) – any other matter the Tribunal considers relevant

[150] Section 39(1)(f) affords a wide discretion for the Tribunal to take into account other matters that the Tribunal considers relevant. Yawuru’s submissions on this criteria raise three matters, which can be summarised as environmental issues, Kallenia Mines’ intention to on-sell or enter join ventures, and the age of the licence applications. The issue of on-selling or entering a joint venture is discussed in the context of a proposed condition, therefore I will consider it in the following section. The remaining two issues identified are considered below.

Environmental issues

[151] Yawuru contend that the Tribunal should have regard to the valuable environmental features of the area, the impact the proposed licences will have on these, and the relevant State and Federal environmental protection regimes. Yawuru have identified the following environmental features that are of concern: 45

 Wetlands  Nagual – Sea Country – the marine park  Gundurung (Mangrove communities)  Bundu (Saltmarsh)  Murrga yirr Barnburr (melaleuca thickets)  Bundurrbundurr – Pindan Country

[152] For reasons already stated, it is not necessary for me to address these concerns in relation to the areas that are not available for grant or exploration as per the ‘no mining’ condition to be imposed by the State. Specifically, Nagual the marine park and Gundurung mangrove communities.

[153] The contentions put forward by Yawuru in relation to the Ramsar wetlands are not materially different to those I have already addressed at s 39(1)(e) above. As stated above, I am satisfied that this is an area of importance and sensitivity, however, I am not satisfied that the proposed licences pose a significant risk, particularly in light of the State’s regulatory regime.

[154] There are parts of the areas Yawuru has identified as Bundurrbundurr Pindan Country, Murrga yirr Barnburr melaleuca thickets and Bundu Saltmarsh that one or more of the proposed licences encroach over. The Yawuru Cultural Management Plan, annexed to the affidavit of Ms Pigram, provides a description of each of these areas including how the Yawuru community use them, their cultural significance and specific threats and management actions. Mining and exploration activity are not specifically identified as threats to these areas. Concerns regarding vehicle access tracks over the salt marshes, and topsoil not being replaced following clearing of vegetation in Pindan country are likely to be relevant to the activities of Kallenia Mines, however, Yawuru’s contentions do not articulate this argument and I am satisfied that the proposed conditions and the regulatory regime are likely to largely mitigate these risks.

The age of the tenement applications

[155] Yawuru contends that Kallenia Mines has failed to pursue its applications in a reasonably timely manner. It states (at 17.34) that at any time since the withdrawal of the expedited procedure statement in 2008, Kallenia Mines could have sought a 46

determination under s 35; that it has failed to do so for seven years should be taken into account by the Tribunal as a factor against a determination that the acts should be done.

[156] I give no weight to this argument. Negotiation is central to the future act process and the Preamble to the Act states that every reasonable effort must be made to secure the agreement of the native title holders to any future acts. As such, it is not the place of the Tribunal to penalise parties for partaking in lengthy negotiations. I am also not satisfied that the apparent delays during negotiations can be solely attributed to Kallenia Mines. Exploration licence applications are made under the Mining Act and s 111A of the Mining Act provides broad discretion for refusal of the applications by the Minister. As such, it was open to the State to commence refusal action in those intervening years had it felt Kallenia Mines was failing to progress its application.

Section 39(2) – Existing non-native title interests

[157] In my consideration of each sub-criteria in s 39(1)(a), I have had regard to the existing non-native title rights and interests and the existing use of the land or waters concerned by persons other than the native title party.

Conditions

[158] Yawuru’s contentions state that, if the Tribunal determines that the acts may be done, this determination should be made subject to a number of conditions.

Heritage protection agreement condition

[159] Yawuru contend that Kallenia Mines have made a number of statements to the effect that it still considers the ‘2010 proposed agreement’ to be acceptable. A copy of this agreement, executed on behalf of Kallenia Mines in January 2011, has been included at Y-1 of the YAC Contentions. It appears to be largely in the same terms as the 2011 HPA that was negotiated with Walalakoo. Yawuru states that the terms of the 2010 proposed agreement, in particular the terms relating to the process and allowable costs and rates of conducting heritage surveys, are unable to be accepted by Yawuru. Accordingly, Yawuru propose a condition that, prior to grant, Kallenia Mines must execute a version of the ‘2010 proposed agreement’ with variations (as outlined at 19.8 of the YAC Contentions). These variations include amendments to the terms and 47

associated fee schedule for heritage surveys, amendments to a number of definitions and a number of other changes to clauses and schedules within the agreement.

[160] The Tribunal has broad discretion under s 38(1)(c) of the Act to impose conditions as part of a determination that the act may be done. However, this power must be exercised by reference to the criteria set out in s 39, and is controlled by the subject matter, scope and purpose of the Act (see Re Koara People at 93). Conditions will not normally be imposed unless the evidence suggests a need for them (see Magnesium Resources v Puuntu Kunti Kurruma and Pinikura at [92]-[96]).

[161] In this matter I do not believe that the evidence supports the imposition of this proposed heritage protection agreement condition. In Richmond v Walalakoo, I determined the future act could be done subject to a number of conditions. This was due to evidence presented which demonstrated a need for certainty around the native title party’s access, preserving cultural heritage, and the possibility of a joint venture or other arrangement. In this matter, I find the proposed conditions put forward by the Government party, in particular the ‘no mining’ condition, largely address Yawuru’s concerns around issues of access and cultural heritage, as outlined above. I have addressed Yawuru’s concerns regarding a possible joint venture or other arrangement in greater detail at [171]-[173] below.

Conditions relating to the Yawuru Conservation Estate and Yawuru IPA

[162] Yawuru have proposed conditions that exclude Kallenia Mines from entry into parts of the Yawuru Conservation Estate (specifically Reserve 51046 and those parts of the conservation estate which are zoned for the special purpose of cultural heritage); and, prohibits any ground disturbing work over the Yawuru Conservation Estate.

[163] In light of the Government party’s intention to impose the ‘no mining’ condition over these areas, I do not find it necessary to consider these proposed conditions.

Corrections to the ‘no mining’ condition

[164] Yawuru’s contentions note there are errors in the original wording of the Government party’s ‘no mining’ condition for E04/1440 and E04/1542, specifically in the reserves listed and the purposes of some of those reserves. Yawuru propose a condition imposed by the Tribunal that addressed these errors. 48

[165] The Government party’s YAC Reply states that the amendments put forward by Yawuru have been incorporated into the Government party’s proposed conditions to be imposed on grant. Agreement between Yawuru and the Government party on this point is confirmed in the SOAF (see [13] above). Accordingly, I do not find it necessary to consider this proposed condition.

Additional conditions

[166] Yawuru contend that the following additional conditions should be imposed:

1. The grantee party notify the holders of any underlying native title determination prior to any airborne geophysical or any on ground access to areas of determined exclusive or non- exclusive possession native title;

2. The grant of each tenement should be made conditional upon the grantee party lodging security under section 60 of the Mining Act for compliance with the Community Benefits clause of the Default Agreement in an amount equal to 1% of the total Minimum Annual Expenditure for that Tenement for the life of the Tenement, such security to be remitted to Yawuru in the event that:

a) The grantee party forfeits the Tenement;

b) The grantee party does not meet the Minimum Annual Expenditure requirement for the Tenement in any given year (regardless of whether an exemption is granted by the Minister); or

c) The grantee party defaults on any of its obligations under any agreement in relation to that Tenement;

3. The grantee party must not assign any interests in [tenement] unless the assignee executes and delivers to the native title party a deed which the assignee undertakes to be bound by all the conditions as if it were the grantee party; and

4. The grantee party must not enter into a joint venture agreement, or any other arrangement involving another person or entity gaining beneficial or legal ownership (in full or part) in respect of [tenement], unless the joint venture partner/person or entity executes and delivers to the native title party a deed by which the joint venture partner/person or entity undertakes to be similarly bound by all the conditions above.

[167] In relation to the first of these additional conditions, the Government party states that Yawuru have not provided any detail or explanation beyond bare contention. As I have already stated, the Tribunal will not normally impose conditions unless the evidence supports the need for them, and I do not believe Yawuru have provided such evidence for this proposed condition. 49

[168] Yawuru contend that the second proposed additional condition, regarding the holding of security, should be made in light of statements made by Kallenia Mines which refer to its limited financial resources. In its reply, the Government party state that the security contemplated by Yawuru relates to an agreement between private individuals (being Kallenia Mines and Yawuru) and there is no power under the Mining Act for the relevant Minister to receive and hold a security of that kind nor could that Minister properly make a decision about if and when the security was to be enforced. The Government party further states that the amount of security which is to be ledged under s 60 is, by operation of s 126 of the Mining Act, a matter for the Minister and not a matter which may be fixed by the Tribunal.

[169] It is not entirely clear what agreement Yawuru is referring to when it discusses compliance with the Community Benefits clause of the ‘Default Agreement’. However it appears likely to be referencing the heritage protection agreement discussed at [159]-[161] of this determination. For reasons already described, I have declined to impose a condition requiring Kallenia Mines to execute this agreement, therefore, there is no community benefits clause with which to tie this proposed condition to. I also note the Government party’s comments and agree that it would not be within the powers of the Tribunal to be making such a condition under s 60 of the Mining Act.

[170] The Tribunal does not have the power to determine compensation (and an argument could be made that community benefits payments are a form of compensation). Under ss 41(3) and 41(5) of the Act there are provisions for the Tribunal to impose a condition requiring an amount to be secured by bank guarantee or held in trust, with ss 52 and 52A prescribing the circumstances in which this amount is to be paid out. The Tribunal has, to date, not used this power. Based on the contentions and evidence provided by Yawuru, and my findings under s 39(1), I am not inclined to do so now. Overall I find this proposed condition, as put forward by Yawuru, unclear in its operation and not warranted based on the evidence.

[171] In relation to proposed additional conditions three and four, Yawuru contends that Kallenia Mines has expressed a wish to on-sell or enter joint venture agreements with respect to the proposed licences. Accordingly, Yawuru should follow the reasoning in Richmond v Walalakoo and impose conditions which bind any new interest to the conditions placed on the licences. 50

[172] As evidence of Kallenia Mines’ intent to on-sell or enter a joint venture, Yawuru have cited emails from Mr Richmond to DMP dated 24 July 2009 and 11 August 2009, included as annexures to Kallenia Mines’ future act determination applications and labelled GP-6 and GP-9 respectively. In the July email, Mr Richmond states that ‘potential investors’ have not agreed to the community benefits clause in the agreement being negotiated. In the August email he states that a ‘major company’ is reviewing the tenements and that it takes years for him to ‘package projects’ before companies ‘wake up to their potential and share the risk’.

[173] I am reasonably satisfied that in order to progress these tenements into the future, Kallenia Mines will seek to on-sell the tenements or enter into a joint venture agreement. However, the appropriateness of applying such conditions, as proposed by Yawuru, would seem dependant on there being other conditions being made as part of this determination. In the absence of such, there are no conditions to bind any assignee to and this condition becomes redundant.

Determination

[174] The determination of the Tribunal is that the acts, being the grant of exploration licences E04/1542, E04/1543, E04/1544 and E04/1546 to Kallenia Mines Pty Ltd; and E04/1440 to Kallenia Mines Pty Ltd and Pilbara Chemical Corporation NL may be done.

Mr JR McNamara Member 9 November 2016 ATTACHMENT ONE: UNDERLYING TENURE

E04/1440 E04/1542 E04/1543 E04/1544 E04/1546

 43.2% Pastoral Lease  79.1% Pastoral Lease  42.6% Pastoral Lease  21.1% Pastoral  62.7% Pastoral Lease N049955 (Thangoo) (Indigenous Held) Roebuck (Indigenous Held) Lease (Indigenous N049955 (Thangoo) Plain Roebuck Plain Held) Roebuck  14.6% Crown Reserve Plain  0.1% Crown Reserve 51932 (conservation,  5.9% Pastoral Lease  57.4% Pastoral Lease 9697 (Kimberley De recreation & traditional N049955 Thangoo N049922 (Thangoo)  9.9% Pastoral Lease Grey Stock Route) & customary (Indigenous Held) Aboriginal use &  1.1% Crown Reserve  69.8% Petroleum Myroodah  36.8% Vacant Crown 51583 (conservation, exploration Permits Land enjoyment) recreation & traditional &  53.8% Pastoral  29.6% Crown Reserve customary Aboriginal use  30.1% Petroleum Lease N049922  100% Petroleum Production Licence Exploration Permits 9697 (Kimberley De & enjoyment) (Yakka Munga) Grey Stock Route)  4.8% Crown Reserve 9697  15.1% Pastoral  2.4% Threatened  0.1% Crown Reserve (Kimberley De Grey Stock Lease N050691 Ecological Community 1516 (Watering Place) Route) (Yeeda) Buffer Zone  12% Reserve  8.2% 5HR Reserve 51046  5% Petroleum  0.6% File Notation 5HR 51046 & 51932 (customary Production Licence Area 7672 Aboriginal use and  100% Petroleum enjoyment)  95% Petroleum Exploration Permits exploration Permits  99.6% Petroleum

 96.7% Threatened Exploration Permits Ecological Community Buffer Zone  13.8% Threatened

SignificantUnderlying Tenure Land Ecological Community  7.6 % ANCA wetlands Buffer Zone  10.2% Wetland of  0.5% File Notation Area International 7672 Importance  2.0% Wetland of  10.2% National International Importance Heritage List – The Kimberley  0.1% File Notation Area 9580 52

ATTACHMENT TWO: LIVE AND DEAD TENEMENTS E04/1440 E04/1542 E04/1543 E04/1544 E04/1546 n/a  < 0.1% L04/79 n/a n/a n/a

(pending)

 < 0.1% M04/218

Live tenement affected 53

 37.2% E04/638  17.5% E04/150  12.9% E04/161  10.6% E04/306  1.4% E04/1152  0.4% E04/645  17.5% E04/151  0.2% E04/305  7.3% E04/389  100% TR70/3195  21.9% E04/935  18.8% E04/152  21.4% E04/306  <0.1% MC04/1840  14.1% E04/936  18.8% E04/159  12.8% E04/307  0.2%  26.4% E04/954  18.7% E04/160  78.4% TR70/212 MC04/1841  20.1% E04/1152  2.3% E04/161  90.1% TR70/1691  0.5%  6.8% E04/1153  13% E04/305  98.6% TR70/3195 MC04/1842  <0.1% M04/43  2.2% E04/307  1.4% TR70/3579  100% TR70/212  5% M04/347  3.8% E04/468  1.4% TR70/3817  27% TR70/1691  6.8% M04/348  21.2% E04/788  93.9% TR70/3855  64.3% TR70/3195  6.4% M04/349  20.7% E04/789  35.7%  5.9% M04/350  20.5% E04/790 TR70/3563  8% M04/351  10.2% E04/922  35.7%  8.1% M04/352  18.7% E04/924 TR70/3817  100% TR70/3195  22.9% E04/926  64.3% TR70/3855  25.7% E04/927  22.6% E04/928  20.7% E04/929

 0.2% E04/930  0.4% E04/1174  <0.1% G04/47  <0.1% P04/131  100% TR70/1691

 100% TR70/3195 Dead tenementaffected 54

ATTACHMENT THREE: DRAFT CONDITIONS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY E04/1440 E04/1542 E04/1543 E04/1544 E04/1546 Conditions: Conditions 1-6 of E04/1440, Conditions 1-6 of E04/1440 Conditions 1-6 of E04/1440 Conditions 1-6 of E04/1440, 1. All surface holes drilled for and the following: and the following: the purpose of exploration are to be capped, filled or 7. No excavation, excepting 7. No excavation, excepting otherwise made safe shafts, approaching closer to shafts, approaching closer to immediately after completion. the Great Northern Highway, the Great Northern Highway, Highway verge or the road Highway verge or the road 2. All costeans and other reserve than a distance equal reserve than a distance equal disturbances to the surface of to twice the depth of the to twice the depth of the the land made as a result of excavation and mining on the excavation and mining on the exploration, including drill Great Northern Highway or Great Northern Highway or pads, grid lines and access Highway verge being Highway verge being tracks, being backfilled and confined to below a depth of confined to below a depth of rehabilitated to the 30 metres from the natural 30 metres from the natural satisfaction of the surface, and on any other road surface, and on any other road Environmental Officer, or road verge, to below a or verge, to below a depth of Department of Industry and depth of 15 metres from the 15 metres from the natural Resources (DoIR). Backfilling natural surface. surface. and rehabilitation being required no later than 6 8. No interference with 8. No interference with months after excavation Geodetic Survey Stations Geodetic Survey Stations unless otherwise approved in Broome 38 and 80, R 638 and LaGrange 51 and H6 1304 writing by the Environmental S 64 and mining within 15 and mining within 15 metres Officer, DoIR. metres thereof being confined thereof being confined to to below a depth of 15 metres below a depth of 15 metres 3. All waste materials, from the natural surface. from the natural surface. rubbish, plastic sample bags, abandoned equipment and 9. The prior written consent of Consent to explore on Stock temporary buildings being the Minister responsible for Route Reserve 9697 granted removed from the mining the Mining Act 1978 being subject to: tenement prior to or at the obtained before commencing termination of exploration mining on the foreshore, 9. No exploration activities program. Customary, Recreation & being carried out on Stock Traditional and Customary Route Reserve 9697 which 55

4. Unless the written approval Aboriginal Use and restrict the use of the reserve. of the Environmental Officer, Enjoyment Reserves 51046 DoIR is first obtained, the use and 51583 and 51932. In respect to the area of drilling rigs, scrapers, outlined in “red” (FNA graders, bulldozers, backhoes Consent to explore on Stock 7672) as shown in or other mechanised Route Reserve 9697 granted TENGRAPH the following equipment for surface subject to: condition shall apply: disturbance or the excavation of costeans is prohibited. 10. No exploration activities 10. No prospecting, Following approval, all being carried out on Stock exploration or mining topsoil being removed ahead Route Reserve 9697 which activities being conducted that of mining operations and restrict the use of the reserve. will interfere with or endanger separately stockpiled for the construction or operation replacement after backfilling In respect to the area of the Gas/Petroleum pipeline and/or completion of outlined in “red” (FNA and associated facilities and operations. 7672) as shown in rights of ingress to and egress TENGRAPH the following from the area being at all 5. The Licensee notifying the condition shall apply: times preserved to the holder of any underlying holders, their employees, pastoral or grazing lease by 11. No prospecting, agents and contractors. telephone or in person, or by exploration or mining registered post if contact activities being conducted that cannot be made, prior to will interfere with or endanger undertaking airborne the construction or operation geophysical surveys or any of the Gas/Petroleum pipeline ground disturbing activities and associated facilities and utilising equipment such as rights of ingress to and egress scrapers, graders, bulldozers, from the area being at all backhoes, drilling rigs, water times preserved to the carting equipment or other holders, their employees, mechanised equipment. agents and contractors.

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 transfer introducing a new Licensee; 56

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

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 1516, Customary Aboriginal Use and Enjoyment Reserve 5HR 51046, Conservation, Recreation and Traditional and Customary Aboriginal Use and Enjoyment Reserve 51932, the area outlined in red in Tengraph and designated FNA 9580 (proposed lease), the foreshore, seabed and navigable waters.

8. All Mining Act tenement activities prohibited within 200 metres of Ramsar or ANCA listed wetlands unless written permission of the Department of Environment and Conservation is first obtained.

Consent to mine on Stock Route 9697 granted subject to:

9. No mining operations being carried out on Stock Route 57

Reserve 9697 which restrict the use of the reserve.

58

ATTACHMENT FOUR: DRAFT ENDORSEMENTS TO BE IMPOSED ON PROPOSED LICENCES BY GOVERNMENT PARTY E04/1440 E04/1542 E04/1543 E04/1544 E04/1546 Endorsements: Endorsements 1-9 of E04/1440. Endorsements 1, 2, 4-9 of Endorsements 1, 2, 4- Endorsements 1-9 of 1. The Licensee’s E04/1440. 9 of E04/1440 and E04/1440. attention is drawn to the the following: provisions of the In respect to Aboriginal Heritage Act Proclaimed Surface 1972 and any Regulations Water (Fitzroy thereunder. River and Tributaries) and 2. The Licensee’s Irrigation District attention is drawn to the Areas the following Environmental Protection endorsements Act 1986 and the apply: Environmental Protection 8. The abstraction of (Clearing of Native surface water from Vegetation) Regulations any watercourse is 2004, which provides for prohibited unless a the protection of all native current licence to vegetation from damage take surface water unless prior permission is has been issued by obtained. the DoW.

3. The land the subject of 9. All activities to be this Licence may affect a undertaken with Threatened Ecological minimal disturbance Community. The Licensee to riparian vegetation. if advised to contact the Department of 10. No exploration Environment and being carried out that Conservation’s Threatened may disrupt the Species and Communities natural flow of any Unit for detailed waterway unless in information on accordance with a management. current licence to take surface water or In respect to Water permit to obstruct or Resource Management interfere with beds or 59

Areas (WRMA) the banks issued by the following apply: DoW. 4. The licensee attention is drawn to the provisions of 11. Advice shall be the: sought from the DoW  Waterways and the relevant Conservation Act, service provider if 1976 proposing exploration  Rights in Water and being carried out in Irrigation Act, 1914 an existing or  Metropolitan Water designated future Supply, Sewerage irrigation area, or and Drainage Act, within 50 metres of 1909 an irrigation channel,  Country Areas Water drain or waterway. Supply Act, 1947  Water Agencies (Powers) Act 1984  Water Resources Legislation Amendment Act 2007

5. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

6. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the 60

current published version of the DOWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies: 7. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies: 8. Advice shall be sought from the DoW if proposing any within a defined waterway and within a lateral distance of:  50 metres from the outer-most water dependent vegetation of any perennial waterway, and  30 metres from the outer-most water dependent vegetation 61

of any seasonal waterway.

In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies: 9. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.

ATTACHMENT FIVE: REGISTERED RIGHTS AND INTERESTS (i) Yawuru Rights and Interests Exclusive rights and interests (a) except in relation to flowing and subterranean water - the right of possession and occupation against the whole world; and (b) the right to take flowing and subterranean water for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). Non-exclusive rights and interests (a) the right to live on the land; (b) the right to access, move about in and on and use the land and waters; (c) the right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); (d) the right to engage in spiritual and cultural activities on the land and waters; (e) the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and (f) the right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance. Non-exclusive rights and interests (intertidal areas) (a) the right to access, move about in and on and use the land and waters; (b) the right to hunt and gather in and on the land and waters, including for dugong and turtle for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); (c) the right to access, use and take any of the resources of the land and waters (including the fresh water) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and (d) the right to maintain and protect the land and waters, including its places of spiritual significance.