STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v THE KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS [2011] SAERDC 2 (14 January 2011)

Last Updated: 24 January 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v THE KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS

[2011] SAERDC 2

Judgment of His Honour Judge Tilmouth

14 January 2011

ABORIGINALS - NATIVE TITLE - CLAIMS AND DETERMINATIONS

The applicants brought an application to conduct mining operations under Part 9B of the Mining Act 1971 (SA) which relates to "native title land".

Held:

1. Although there was a failure to make a determination within four months of lodgement as required by s 63S, there were "special reasons" why the court could not do so.

2. The failure to comply with s 63S did not invalidate the determination in any event.

3. The requirement to follow evidentiary practices of the Federal Court in native title proceedings in s 13(3) of the Native Title (South Australia) Act 1994, relates to the management of evidence.

4. The Environmental and Development Court has no jurisdiction to determine native title rights and interests as such; rather it is to anticipate the effect of the proposed operations on native title in the land according to the nature and effect of the evidence adduced.

5. The court is not confined to the registered native title rights and interests, and must proceed on the basis of credible evidence to the extent that wider interests are arguable.

Mining Act 1971 (SA) s 63J, s 63S, s 63V, s 63V(3), s 63W; Acts Interpretation Act 1915 (SA) s 27(3); Aboriginal Heritage Act s 23; Environment, Resources & Development Court Act 1993 (SA) s 20(2), s 21; Native Title (South Australia) Act 1994 s 3, s 4(1), s 5(1), ss 13(1) & (2); Western Desert Lands Aboriginal Corporation v Western Australia [2009] NNTTA 49; (2009) 232 FLR 169; The Lardils Peoples & Ors v State of Queensland & Ors [2001] FCA 414; (2001) 108 FCR 453; Australian Mangangese Pty Ltd v Western Australia [2008] NNTTA 38; (2008) 218 FLR 387, referred to.

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Western Australia v Thomas on behalf of Waljen People (1996) 133 FLR 124; Commonwealth of Australia v Clifton [2007] FCAFC 190; (2007) 164 FCR 355; North Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland (Waanyi Case) (1996) 185 CLR 595, applied.

ABORIGINALS - NATIVE TITLE - EXTINGUISHMENT

Held: Whilst the court may take notice of the proclamation of the subject area (or part thereof) as a National Park under the National Parks and Wildlife Act 1972 and the grant of a Pastoral Lease pursuant to the Pastoral Land Management and Conservation Act 1989, it is not open to determine that these amounted to acts wholly or partially extinguishing native title rights and interests.

Native Title Act (Cth) s 15, s 47, s47B, s 229, s 232, s 238, s 239; National Parks and Wildlife Act 1994 s 42(3); Native Title (South Australia) Act 1994 s 32, s 33-36; Racial Discrimination Act 1975 (Cth), referred to.

Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; De Rose v South Australia [2002] FCA 1342, discussed.

ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS - INDIGENOUS RIGHTS AND INTERESTS

Held:

1. Section 63F of the Mining Act qualifies rights of exploration in relation to native title land, and confers no right to conduct mining operations.

2. Each matter set out in s 63(1) of the Mining Act must be considered when making a determination, but the weight to be attributed to each one depends on the facts of the case.

3. Although the subject area merits further mining exploration in the public interest, the strength of the native title in the land, the fact that the applicants conducted exploration without appropriate consents in breach of the Exploration Licence and its failure to account for so doing, in the balance of considerations under s 63T, dictate a determination that such operations should not be conducted.

Mining Act 1971 (SA) s 6, s 63F, s 63J, s 63M, s 63T; Native Title Act (Cth) s 13, s 39, s 190B, s 237; National Parks & Wildlife Act 1972 s 68C, s 68D, s 68E; Pastoral Land Management and Conservation Act 1989 (SA) s 47, s 48; Aboriginal Heritage Act s 23, s 37; Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia [2002] FCA 58; (2002) 116 FCR 390; Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371; (2002) 125 FCR 89; Mabo v The State of Queensland (No 2) [1992] HCA 23; (1991-1992) 175 CLR 1; Western Australia v Thomas (1996) 133 FLR 124; Cheedy obh Yindjibarndi People v State of Western Australia [2010] FCA 690; Western Australia v Stickland & Ors [1998] NNTTA 2; Commonwealth v Clifton [2007] FCAFC 190; (2007) 164 FCR 355; Attorney-General (NT) v Ward (2003) 134 FCR 16; [2003] FCAFC 283; Northern Territory v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135; Sampi (Bardi and Jawi People) v Western Australia [2010] FCAFC 26; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR; R v Toohey & Anor; ex parte Meneling Station Pty Ltd & Ors [1982] HCA 69; (1983) 158 CLR 327; Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73; Kivi v Forestry Commission (NSW) (1982) 47 LGRA 38; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; Griffiths v The Northern Territory (2007) 243 ALR 72, referred to.

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, applied.

Western Desert Lands Aboriginal Corporation (Jamukurnu–Yapalikunu)/ Western Australia/ Holocene Pty Ltd (2009) 232 FLR 169; [2009] NNTTA 49, distinguished.

De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325, discussed.

STRAITS EXPLORATION (AUSTRALIA) PTY LTD & ANOR v THE KOKATHA UWANKARA NATIVE TITLE CLAIMANTS & ORS
[2011] SAERDC 2

Introduction

1. This case centres upon a proposal to conduct mining exploration on and near Lake Torrens. The early signs are that deep underneath may lay vast tracts of potentially highly prized mineral deposits. The Kokatha people are implacably opposed to any such operations altogether, due to the pivotal significance of the area to them. The court is asked to allow such exploration to proceed, thus resolving the diverse and conflicting positions as between these sharply opposed interests.
2. Lake Torrens itself is approximately 5,700 km²ç, comprised of usually dry salt flat, the southern tip lying approximately 60 km to the north of Port Augusta, in South Australia. It is roughly 240 km long from north to south, first “discovered” by Edward John Eyre in 1839.[1] It is nevertheless an area “extremely rich in archaeological terms”.[2]

The proceedings

3. On 2 August 2010 the applicants filed their application for a determination authorising “mining operations”, comprising exploration by drilling on Lake Torrens in the vicinity of Andamooka Island, brought under Part 9B of the Mining Act 1971 (SA).[3] Notice of the application was given on 3 November 2009, following failed negotiations aimed at reaching a native title mining agreement, as provided for in s 63M, within the prescribed period of four months.[4] The completion of these preliminary steps entitled them to commence the proceedings: s 63S(2). Kelaray is a joint venturer with the first applicant Straits Exploration Australia Pty Ltd. Straits Exploration is the tenement operator. It undertakes all the activities on the ground on an “earn-in” basis with Kelaray.[5]
4. Jurisdiction under Part 9B is vested in the Environment, Resources and Development Court,[6] by s 63J of the Mining Act. This reads:

Part 9B—Native title land
......
Division 3—Application for declaration
63J—Application for declaration
A person who seeks to carry out mining operations on native title land may apply to the ERD Court for a declaration that the land is not subject to native title.1
Note—
1 The application is to be made under the Native Title (South Australia) Act 1994.

5. The powers that may be exercised by the ERD Court within the jurisdiction so conferred are those specified under s 63S of the Mining Act:

63S—Application for determination
(1) If agreement between the proponent and the native title parties is not reached within the relevant period, any party to the negotiations or the Minister may apply to the ERD Court for a determination.
In this subsection the relevant period is—
(a) if the mining operations to which the negotiations relate are merely of an exploratory nature—four months from when the negotiations were initiated; or
(b) in any other case—six months from when the negotiations were initiated.
(2) On an application under this section, the ERD Court may determine—
(a) that mining operations may not be conducted on the native title land; or
(b) that mining operations may be conducted on the native title land subject to conditions determined by the Court.

6. Once made, determinations become enforceable in the manner provided for in s 63V:

144">63V—Effect of determination
(1) A determination under this Division—
(a) must be lodged with a mining registrar; and
(b) must be registered two months after it was lodged for registration unless it has in the meantime been overruled by the Minister;1 and
(c) takes effect on registration.
(2) A determination registered under this Division has effect as if it were a contract between the proponent and the native title parties.
(3) A registered determination is (subject to its terms) binding on, and enforceable by or against the original parties to the proceedings in which the determination was made and—
(a) the holders from time to time of native title in the land to which the determination relates; and
(b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the determination relates are carried out.
(4) If a native title declaration establishes that the native title parties to whom the determination relates are not the holders of native title in the land or are not the only holders of native title in the land, the determination continues in operation (subject to its terms) until a fresh determination is made, or for 2 years after the date of the declaration (whichever is the lesser).
(5) A determination under this Part that authorises mining operations to be conducted under a future mining tenement is contingent on the tenement being granted or registered.
Note—
1 See section 63W.

7. However under s 63V(1)(b), the determination of the court is subject to Ministerial intervention:

63W—Ministerial power to overrule determinations
(1) If the Minister considers it to be in the interests of the State to overrule a determination of the ERD Court under this Part, the Minister may, by notice in writing given to the ERD Court and the parties to the proceedings before the Court, overrule the determination and substitute another determination that might have been made by the Court

8. There is an equivalent power in s 42(2) of the Native Title Act 1993 (Cth), exercisable in “the National interest”. Just what effect such provisions have on the exercise of judicial power (if any) was not the subject of any detailed analysis by the parties in this proceeding.[7]
9. The proposed exploration relates to the land encompassed by Exploration Licence no. 4296,[8] granted on 14 October 2009 to the second applicant Kelaray Pty Ltd. The lease is for a term of two years, expiring on 18 August 2011.[9] Kelaray has indicated that an extension of the lease will be sought in due course. It covers an area of approximately 295 kmç, encompassing part of Lake Torrens and the shoreline around and on Andamooka Island, adjacent to Crombie Ridge, to the south-west corner of the lease. It is some 75 km south west of the Olympic Dam mine site.
10. The operation envisages seven specific 500 m radius zones, each occupying an area of 0.78 kmç. According to the applicants these will have “miniscule” effect, as they cover only some 0.115 per cent of the Lake Torrens recorded site.[10] That site is said by the applicants to be nearly 6,400 km², or well over twice the area of the Australian Capital Territory.[11] Each drill hole is estimated to take four weeks to complete.
11. The general nature of the mining operations in question are described more fully in paragraph 8.B of the application, as:

Exploratory operations to determine the geological structure of the Land and presence of economical mineralisation which may include (without limitation) the following activities: magnetic, gravity, electrical, electromagnetic and seismic surveying; geophysical surveys; geological mapping; geochemical soil, sediment, calcrete and rock chip sampling; aircore, reverse circulation and diamond core drilling; mud rotary drilling; water bore drilling; water pumping and piping; down hole geophysics; analysis of drill samples; environmental, engineering and metallurgical surveys and studies; construction and maintenance of camp facilities; coreyards, storage and laydown areas (including for fuel), and access tracks.

12. The basis of the opposition mounted by the respondent emanates from the enormous religious significance of the Lake and the Island for them, as well as for the wider Western Desert people. This area is said to be the most significant of all sites to the Kokatha people, as:[12]

... the focal point of a highly restricted and dangerous men’s Law/tjukurpa which is at the heart of the Kokatha people’s identity and for which senior Kokatha watis have a unique and a heavy responsibility.

13. The respondent the Kokatha Uwankara Native Title claimants, presently have a claim before the Federal Court seeking a Native Title determination over a much wider area, encompassing the exploration licence, filed on 18 June 2009 by their present solicitor Mr Linde.[13] This claim was registered by the Native Title Tribunal on 21 August 2010.[14] It comprises a roughly circular area bounded by the eastern shore of Lake Torrens itself, Stuarts Creek to the north, East Well Outstation to the centre west and Barker Range to the south.[15]
14. Ever since 4 April 1996 the area has been subject to native title claims.[16] The first was replaced by another in March 1999 filed by Mr R Thomas and a Mr D Clifton.[17] The area was the subject of the overlapping native title claims, brought on behalf of the Barngarla, the Kokatha and the Kuyani/Adnyamathanha people.[18] There are two significant mining towns within the claim area, Roxby Downs an expanding township and Andamooka, originally an opal mining community.

History of the Native Title process and activities

15. The following brief sequence of events is common ground. Several of the key events are spelt out in more detail later. For the sake of simplicity the parties are often referred to hereafter as Straits, Kelaray and the Kokatha, respectively.[19]
16. Between 1977 and 1982, Western Mining Corporation conducted operations in the area of what is now Exploration Lease 4296. These involved drilling three holes, two on Lake Torrens and one on Andamooka Island.[20] Over two days in May 2004, an Heritage survey was conducted by Kelaray, pursuant to an agreement with the Kuyani claimants, including M McKenzie, L Brady and T Clarke, who are now applicants or claimants in the latest Kokatha Uwankara claim.[21] On 30 August 2005 Straits entered into “work area clearance agreement” with the Barngarla claimants, including L Dare, who is also an applicant in the current Kokatha claim.[22] Subsequent reports of December 2005 and March 2006 indicate the Barngarla claimants approved non-obtrusive ground surveys, but no further drilling was to proceed without further consultation with the Kuyani and Kokatha claimants.
17. Later the Andamooka Land Council Association Incorporated,[23] indicated that it did “not object to the proposed drilling program”.[24] An Ethnographic Assessment and Consultation report recommended surveys involving the ALC and the Kokatha Peoples Council, regarding the proposed drilling project on Lake Torrens.[25]
18. By December 2006 Straits claimed to have organised site clearances over the region with members of the Clifton family.[26] On 24 August 2007 it made an application to Minerals and Energy Resources Department for approval to carry out exploration operations pursuant to Schedule C of Exploration Licence 3195, enclosing a Declaration of Environmental Factors in support.[27] This was approved on 27 September 2007.[28] In the meantime Mr Clifton advised Straits “ALC is happy to endorse the proposed drill hole on Andamooka Island and two diamond drill holes as described on Lake Torrens”, with some reservations to be detailed later.[29]
19. By October 2007 Straits had actually begun drilling operations in conjunction with rehabilitation of the area, notably the collection and disposal of rubbish.[30] It completed a first drill hole on Andamooka Island on 3 December 2007.[31] However on 9 December 2007 such exploration was “not cleared”.[32] Even so Straits continued drilling, so that by 21 January 2008 it completed a second hole and by 25 February 2008 a third, on Andamooka Island.[33] It then ceased drilling operations.
20. The next step in this part of the process is that between 19 and 20 April 2008, Kokatha claimant representatives and their solicitor Mr R Eckermann, met with Straits in Port Augusta. They also attended a site inspection at Lake Torrens.[34] Afterwards Mr Eckermann wrote to Finlaysons the solicitors for Straits, seeking an explanation for the drilling on Andamooka Island and expressing the claimants’ opposition to it.[35] He added in his letter of 25 July 2008:

We remind you that the sanctity of Lake Torrens has long been a major concern of Kokatha.  Indeed it was the catalyst for the initial native title claim over the area being lodged at the time and in the manner in which it was lodged.  We also remind you that this position has been consistently communicated to your clients over recent years.

21. He received a response to the effect that Straits were deferring any future negotiations until the proposed new claim was registered by the Native Title Tribunal.[36] At about the same time the original native title claim over the area encompassing Lake Torrens and Andamooka Island, was withdrawn. It is apparent this was done, as Mr Llewellyn-Jones put it, to avoid “triggering the ‘overlap provisions’ of the Commonwealth Native Title Act”.[37] Straits then sought to negotiate a Mining Act Part 9B Agreement. They convened a meeting at Port August with this purpose in mind, on 4 September 2009.[38] However by 13 October 2009 it became apparent Straits was contemplating an application under s 23 of the Aboriginal Heritage Act 1988 (SA). If successful that would constitute Ministerial approval to damage, disturb or interfere with an “Aboriginal site” of significance according to “Aboriginal archaeology, anthropology or history”, as defined in s 3 thereof. Otherwise such activities constitute summary offences: Chapman v Luminis Pty Ltd (No 4) (Hindmarsh Island Bridge Case).[39]
22. By 27 October 2009 Straits had in fact served documents initiating the process under the Part 9B, the “native title land” provisions of the Mining Act.[40] With this process in mind Mr Calvin of Straits undertook consultation with various supposed claimants in Port Augusta and Coober Pedy, between 14 October and 11 December 2009.[41]
23. Straits then proceeded to seek approval for exploration operations by letter of 27 November 2009 addressed to the Department of Primary Industries and Resources for South Australia.[42] At a meeting involving Straits employees and the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet of 19 December 2009, it was made clear that the Kokatha claimants continued to express their strong opposition to the Aboriginal Heritage Act application by Straits.[43] In a flurry of activity on 8 January this year, the Kokatha confirmed their position that any meeting to discuss a Part 9B agreement should be deferred until the Minister had made a decision with respect to the s 23 application, whereas Straits desired to continue the negotiations notwithstanding.[44]
24. The exploration program developed by Straits was approved on 2 March 2010 by the Department of Minerals and Energy Resources and on 7 July 2010 by the Minister for Aboriginal Affairs and Reconciliation.[45] These approvals thus gave authorisation to Straits to “damage, disturb or interfere with any Aboriginal sites, objects or remains that may exist on Lake Torrens and a portion of Andamooka Island designated for mining exploration activity”, pursuant to s 23 of the Aboriginal Heritage Act.
25. Even so the Kokatha continued to maintain that Straits held “no authority under the Mining Act to affect [their] native title rights and interests”, absent a Part 9B Agreement.[46] They wrote to the Minister for Aboriginal Affairs and Reconciliations seeking reasons for her decision.[47] The court was told this decision is the subject of an application for Judicial Review brought in the Supreme Court of South Australia, the first return date being 17 December, last year.[48] Judgment was reserved by Sulan J.
26. Although Straits continued to seek a further meeting with the Kokatha, it proceeded to launch its application out of the ERD Court on 2 August 2010 for the determination authorising the mining operations. In the meantime a further application by Straits for approval to carry out the revised exploration operations pursuant to schedule C of Exploration Lease no. 4296, supported by a revised Declaration of Environmental Factors, was approved for six months on 20 October 2010 by the Department of Minerals and Energy Resources.[49]

Procedural issues

Other parties

27. At the very outset of this matter the Adnyamathanha people were given leave to intervene as a third party, in order to protect so much of their continued assertion of native title rights over the Lake Torrens area. Their counsel Mr N Llewellyn-Jones made brief appearances in support thereof and in opposition to the drilling. In the event they elected to negotiate with the Kokatha Uwankara claim group, embodied in what became the “Lake Torrens Agreement”. They submit this agreement is one of the “other matters” the court is entitled to take into account under s 63T(i)(f) of the Mining Act, partly because it may form the basis of a registered consent determination within the meaning of s 63V(3). As such the thrust of the Adnyamathanha submission was that if mining operations were allowed, that should occur “in a manner consistent with the Lake Torrens Agreement”.[50] Effectively they were seeking “reciprocal rights” to those of the Kokatha, in the event that conditional mining was approved.
28. The Attorney-General for the State of was granted liberty to intervene, pursuant to section 9(2) of the Crown Proceedings Act 1992 (SA), to the extent necessary. In any case, since the interpretation of State and Commonwealth legislation is in question as will become abundantly clear, the Attorney was entitled to intervene as of right, pursuant to s9(2)(a) thereof.
29. The Attorney’s main interest was to protect the decision of the Minister for Aboriginal Affairs and Reconciliation, granting the above authorisation under s 23 of the Aboriginal Heritage Act, so far as that is material to the present proceedings. His counsel Mr Jacobi filed and made more than useful submissions as to the relationship between the various pieces of legislation applicable to the case, focussed on the proper construction to be given to Part 9B of the Mining Act. His contentions were accepted by all parties, except in one respect by counsel for Straits, Mr Waters.

Duty to furnish prompt reasons

30. Section 63S of the Mining Act obliges the court to make its determination on the application within four months “from when the application is made ... unless there are special reasons why it cannot do so.” [51] As the application to explore was lodged on 2 August 2010, this “deadline” of 3 December 2010 was passed during the course of the hearing. The trial was originally listed to commence on November 1, at a time when compliance with the statutory time-line was feasible. As events transpired, lead counsel for the Kokatha Uwankara Mr Costello, was appointed a judge of this court on 28 September 2010. He informed his solicitor immediately afterwards, and was obliged to return the brief. This was preceded by their previous counsel Mr Collett, also returning his brief. This left the respondent in a predicament, not one of its own making.
31. They promptly managed to brief Mr Hughston SC, however he was unavailable to commence the trial until November 22, due to prior commitments. An order was therefore made on 12 October 2010 for the trial to commence then. An application by the Kokatha Uwankara for an adjournment based on the late service of applicants’ material relating to environmental and economic factors, was refused in the meantime.
32. It can be seen then, that for a trial of this complexity and consequence, matters proceeded expeditiously in the unique circumstances. Although the statutory prescription was breached, it is clear enough from the wording of s 63S and inherent in the expression “special reasons”, that such failure does not invalidate this subsequent determination. Clearly there were “special reasons” why the court could not comply, given the uncontrollable fall of events. The parties accepted this was the position. As the High Court noted in Project Blue Sky Inc v Australian Broadcasting Authority,[52] it is only when it is a purpose of the legislation in question to invalidate an act done in breach of a statutory condition, that such an act would be so rendered.
33. However this conclusion does not mean the imperative imposed by s 63S had no further influence, no matter how unrealistic or impractical the time specified might appear. On the contrary, the requirement to adhere to a strict time limit, placed the court under a continuing obligation to produce a timely determination, as soon as the circumstances reasonably permitted. The court has therefore proceeded in any case with no less than “all convenient speed”: s 27(3) Acts Interpretation Act 1915 (SA).
34. The court sat and heard evidence commencing on 22 November 2010, concluding on Friday 26 November. On that day the case was adjourned on the application of the parties to the following Wednesday, 1 December. However they then agreed that no further evidence was necessary and so the hearing for that day was vacated by consent. Further directions hearings were held on Thursday 2 and Friday 3 December. The trial was then adjourned again by consent, to Wednesday 8 December for taking further evidence (if necessary) and the receipt of final submissions. Thereafter the parties filed extensive written submissions. For this purpose the court sat from the 8th until Friday 10 December 2010, when judgment was reserved. The court was in summer vacation between 25 December 2010 and 9 January 2011, inclusive.

Evidential issues

35. The jurisdiction and powers exercised under Part 9B of the Mining Act, attract the procedures and processes spelt out in the Environment, Resources and Development Court Act 1993 (SA). These are in a familiar form for specialist courts. They include the facility to conduct hearings with the minimum of formality, unbound by the rules of evidence, and without regard to legal technicalities and forms: s 21(1). There is also the capacity to permit hearings in private, by reason of the confidential nature of the evidence: s 20(2).
36. However the Native Title (South Australia) Act 1994 adds an additional component to the standard regime. Both the Supreme Court and the ERD Court enjoy the “jurisdiction to determine native title questions” by s 5(1) thereof. It is not disputed that these proceedings entail such questions, since they arguably raise “the existence of native title in the [subject] land”, “the nature” of such rights, and if not they involve at the very least “any other matter related to native title”, as defined in s 3 of the State Native Title Act. When it comes to hearings, both courts enjoy identical general powers to those found in s 20(1) & (2) of the ERD Court Act. In addition thereto s 13(3) of the State Native Title Act goes on to provide:[53]

However, in informing itself about a native title question, the Court must, if there is an established evidentiary practice in the Federal Court for dealing with similar questions, follow the practice of the Federal Court.

37. It is not immediately obvious what “evidentiary practice” is precisely meant to entail. Upon reflection, the meaning becomes tolerably clear. Obviously there was no intention to change the rules of evidence, and having grafted applications under Part 9B onto the existing ERD framework, there was obviously no intention to drastically alter established procedures. Thus ss 13(1) and (2) of the Native Title Act (SA) are caste in precisely the same familiar terms as s21 of the ERD Act. Rather, Parliament must have had in mind drawing on the years of collective experience of the Federal Court, as the specialist court exercising “exclusive ... jurisdiction of all other courts except the High Court” in Native Title determinations,[54] as providing the most appropriate model in cases involving “native title questions” of the kind contemplated by s 13.
38. Clearly then it was intended that the ERD Court should adopt such Federal Court procedures as deal with the management of evidence gathered in native title cases, that is to say as to modes of taking, giving, receiving and dealing with evidence peculiar to native title litigation. It is not difficult to think of examples. These might encompass receiving sensitive or restricted evidence in confidence and keeping it secure, regulating the dissemination and publication of same, providing for evidence to be heard or read by only men or women as the case may be, receiving evidence concurrently from multiple witnesses at once, or taking evidence on country, and so on.
39. Uncontentious orders of this very nature were made in the course of these proceedings. These included restricting the distribution of evidence, taking evidence in closed court, hearing two witnesses concurrently, and for the safe custody and transcription of such evidence. There is ample power to make orders of this kind within s 20 of the ERD Court Act. To paraphrase, this section enables the court to make orders as are “in the interests of justice” by reason of the confidential nature of the evidence to be given, to conduct hearings in private, to prohibit or restrict publication, and to exclude any person from the Court during the course thereof.
40. Thus the court made specific orders relating to gender restricted evidence, on the basis that such evidence must not be viewed or heard by any person other than senior initiated Kokatha men, non-Aboriginal male parties, male anthropologists engaged to provide advice, male counsel or solicitors of the parties, the male judge and such male court staff as directed by the judge, that being the judge’s Associate in this instance. There were consequential orders to the effect that the restricted material should not be disseminated to anyone else, and upon conclusion of the proceedings, for all such material to be destroyed, such destruction to be attested by affidavit.

The case for the applicants

41. At the heart of the case for the applicants lies the expectation of discovering valuable minerals capable of profitable commercial exploitation, for years to come. The evidence was to the effect that under the area of the Exploration Licence, lies what is internationally recognised as the “Lake Torrens gravity anomaly”. According to the applicants this is “widely considered to be the best undrilled exploration target in South Australia”, second only to the Olympic Dam anomaly, in both size and strength.[55] This anomaly lies deep below the surface, predominantly between Lake Torrens east of Andamooka Island, the size of which was not made particularly clear.[56] It is proposed to immediately expend upwards of at least $5 m on the initial drilling program.[57] They stress the current proposal is limited to exploration, confined by the Exploration Licence granted under Part 5 of the Mining Act.

Environmental, geophysical and economic impact

42. Three reports were submitted by the applicants with respect to these subjects. The first was that of Mr Coleman, an expert having a background in zoology and physiology.[58] He was awarded a Masters Degree in environmental studies in 1988. His remit was to comment on the potential effect of the exploration activity, its methodology and Straits’ proposals for rehabilitation of the natural environment.
43. Mr Coleman describes Lake Torrens as a generally dry salt lake, becoming “biologically active” when flooded, once every few decades or so. He was asked to assume the proposed drilling involved seven preliminary holes with a potential of 70 fill-in drill holes at a later date, six being on Lake Torrens. The footprint of each was assumed to be approximately 30 m x 30 m, to a depth of 1,200 m. His instructions were also premised on the fact that 200-250 litres of diesel per shift would be used, flown in and out by helicopter.
44. His conclusion was that the proposed methodology was “sensitive to environment”, of low impact particularly as all waste would be removed from drill sites (apart from grey water and small amounts of non-toxic drill mud), which he considered would have negligible effect. As helicopters were to be used except occasionally for quad bikes or hovercraft, the exploration footprint would become “indiscernible after a moderate flood event”. He also considered the drilling program had little or no biological implications for the lake.
45. This conclusion is not substantially in dispute. It was one described as “reasonable” in a report prepared by Mr Carr for the Kokatha.[59] He was however critical of several “relatively minor matters”, as detailed therein. Mr Carr was also critical of the failure to deal with rehabilitation, historic disturbance on the lake such as the collection of rubbish and other materials, the failure to recognise drilling was to occur within the banks of the Lake Torrens National Park, or to comment on the potential for “windrows” to develop adjacent to the causeway. These he considered, may serve to impede local water flows. Otherwise Mr Carr assesses the Coleman report as an “accurate and reliable summary of the environmental implications of the proposed Stage 1 drilling ...” even though there will necessarily be some impact.[60]
46. A second report submitted by the applicants was prepared by Dr Hanneson, a geophysicist holding a primary degree in physics (1968) and a PhD in geophysics (1981).[61] He describes the local, magnetic and gravity anomaly attributes of the site, as “sometimes” associated with concentrations of copper and gold. He points out that similar anomalies led to the discovery of Olympic Dam, amongst others. In the executive summary, after making a simulated comparison for each area, Mr Hanneson concluded:

In addition, the mass of the dense non-magnetic rocks (presumed to be haematite and sulphides, where copper, gold and uranium minerals tend to occur) and the mass of the magnetic material (presumed to be magnetite) were estimated for each area. It was found that the source of the Torrens anomaly comprises a similar amount of dense non-magnetic rock as Olympic Dam but about four times as much magnetite, making it economically prospective.

47. In a supplementary report of 11 November 2010, Dr Hannison adds:

By way of a supplement to the “Conclusions” section in the 4 November report:

• By “economic sulphides”, I imply copper and other minerals which, if found in sufficient concentrations, could be mined profitably.
• The gravity anomaly for each area is interpreted to arise from a dense non-magnetic category of minerals (presumed to be hematite and base metal sulphides) and a dense magnetic category (presumed to be magnetite). In other IOCG occurrences, the magnetite has little economic value, and the hematite/sulphide category includes the copper minerals with high economic value. The gravity response of some IOCG occurrences can be explained almost entirely by the mass of the magnetite and are not highly prospective, but at the Torrens Anomaly the mass of the magnetite (inferred from the magnetic response) is not great enough to simulate the observed gravity response. The report concludes that, the amount of dense non-magnetic material needed to simulate the gravity data, in addition to the mass of the magnetite, is comparable to the amount of dense non-magnetic material believed to occur at the Olympic Dam Mine.
• Coincident magnetic and gravity anomalies can also be caused by barren mafic intrusive rock (possibly with magnetite) that has no economic value (see “References” section; Hanneson, 2003). It is a matter for geological opinion, but anecdotal information that has come to me is that, of the 5 to 6 kilometres of drilling done so far at Torrens, negligible mafic rock has been intersected. It is therefore reasonable to conclude that the massive, dense non-magnetic material required by the Torrens is hematite and sulphides.
• The veracity of the interpretation also depends on the accuracy of the calculations. No significant errors are known to occur in the modelling algorithms which I have used for approximately 15 years, and, the computations and assumptions for estimating the apparent magnetite and apparent hematite+sulphide concentrations have not been challenged in the 7 years since publication (Hanneson, 2003) of the method.
• Except by extensive drill sampling, I know of no way to estimate the concentrations of dense non-magnetic material like hematite+sulphide other than with the phase/scatter diagram method used in the report.

48. The third and final report is that prepared by Dr Morrison.[62] His primary qualifications are in economics. He claims expertise in providing economic research in “agriculture and natural resources based industries”. His opinions were based on models of five years resource drilling, two years construction and between 10 and 30 years of mining. Between these extremes, he estimated average annual “gross state product” of between $374-806 m, and a total of between $3.2 and $10.5 billion based on a “high mine – life output scenario”. This is said to be a measure of the net contribution of activity to the State economy.
49. It was his further opinion that the mine might generate between 1,650 and 5,600 jobs, or increase the current South Australian workforce between 0.21 per cent and 0.71 per cent, over 17 to 37 years, depending once again on the life and productivity of the mine. A second report qualified these opinions a little, as will become apparent later.

The case for the Kokatha

50. The respondent maintains there is no area of significance greater to the Kokatha, than Lake Torrens itself, particularly in the vicinity of Andamooka Island and Crombie Ridge. The evidence as to this commenced with Professor Roger Thomas. His father was a Kokatha man, a survivor of the stolen generation. Professor Thomas was “grown-up” to speak the Kokatha language. Although he was not initiated, he remembers his family participating in ceremonies on country and of knowing his grandfather was a senior law man or Wiliya man for the country. He came to learn there was men’s business on the site of Lake Torrens, the prime responsibility for which lies with the initiated Kokatha men. Professor Thomas spoke of the enduring process of taking young Kokatha men through the law through enduring ceremonies on country.
51. The evidence thereafter was given in closed session, due to the restricted nature of the subject matter. This was provided by initiated Aboriginal men, as well as the anthropologist Dr Willis. This aspect of the case commenced with the joint evidence of the two Yankunytjatjara men, given for the most part through an acknowledged interpreter of Pitjanjatjara, Dr Bill Edwards AM. The Yankunytjatjara country is linked to the Kokatha claim to the north west, through which dreaming tracks common to both, run in various directions.
52. These two distinctly interrelated cultures are intimately bound up in the wider Western Desert Bloc, whose boundary ends on the eastern shore of Lake Torrens and swings in an arc to the west through Yalata, Oak Valley towards Kalgoorlie, into the desert regions of central Western Australia, the Pitjanjatjara lands, and into the south-west corner of the Northern Territory.[63] These two men are entitled to speak for the law or dreaming of their people, the Tjukurpa. The Yankunytjatjara recognise and honour the importance of the Lake Torrens area and surrounds to the Kokatha people.
53. The evidence was that if there was drilling on Lake Torrens, as there has been in the past, there would be “dire consequences”.[64] Without going into the details, all the evidence was that the subject area adjacent to Crombie Ridge was an extremely important men’s site, belonging to the Kokatha. The Yankunytjatjara men were not authorised to speak precisely for that country, for it lies outside the area of their responsibilities. Persons recognised as capable of speaking for country, are those having ancestral homes there and who are recognised by their community as persons who belonged to the country, that is to say they are Nguraritja for that country.
54. Three such men specific to Lake Torrens, Andamooka Island and Crombie Ridge are the brothers Andrew, Robert & Michael Starkey, all senior initiated men (Kokatha watis) of the Kokatha people. Once again, without going into confidential details, the effect of their evidence was that as men responsible for this and the wider claim area, the features of the particular area in question formed a significant part of the Tjukurpa. There are a number of important stories associated with Lake Torrens, which they spoke about in some detail.
55. This particular area is regarded as “very sacred and very dangerous law”, about which not all initiated men were entitled to speak.[65] Only those who attain a senior level as recognised by their traditional laws and customs can do so. The area is associated with the Wilyaru dreaming, the breach of which would lead to serious repercussions for them and their extended families, such as being chastised or pilloried, right through to death.
56. Under cross-examination they were not directly challenged as to this evidence. Indeed the purport of the cross-examination was to demonstrate the Kokatha law and customs were erudite enough to survive this relatively small mining operation by way of drilling. It was put to them that the law had survived much more consequential mining operations such as those at Roxby Downs and Andamooka. It should also be noted that the applicants’ engaged their own expert anthropologist Mr Bindon to advise them in these proceedings. Although the transcript, statements and reports were available to him, he was not called to contradict the case for the respondents as to the importance of the area, or as to the particular traditional laws and customs sustaining its importance.
57. Support from an anthropological point of view was furnished by Dr Willis, himself a white initiated man under Western Desert law, but not of the Kokatha. He made it very clear his opinions were based on past reports and not on recent anthropological work in the field. Indeed for the past 10 years or so his area of expertise, whilst remaining anthropological, has focussed upon health and epidemiological domains. Since 1997 he has been employed largely as a lecturer in indigenous health at the University of Queensland and from 1999 in a similar position at La Trobe University.
58. However Dr Willis does have significant experience with tribal Aboriginal people of the Western Desert. His doctorial thesis included Western Desert ceremonies. These direct experiences include some three years spent during the mid-eighties in a capacity of anthropologist with the Pitjanjatjara Council, two years thereafter working as a consultant to the Commonwealth Department of Health at Tennant Creek in the Northern Territory and then for the best part of a decade towards 1997, at the Uluru Kata-Tjuta National Park, providing assistance to traditional landowners around Uluru (Ayers Rock). It was here that he met and began to associate with the Kokatha elders who gave evidence in these proceedings.
59. He was also involved as a witness in the De Rose Hill Native Title Claim. During November 2000 he undertook field trips to stations in Yankunytjatjara country. Then in 2003 he was briefed by the Central Land Council to provide anthropological evidence in the Yulara Native Title Claim.
60. More germane to the case, he spent upwards of six days on the Kokatha claim area during the mid 80s, two days on field trips to Lake Torrens in 1996, three or four days on site clearances preceding the installation of an electricity power supply line to Olympic dam and later two quite short single day trips to Lake Torrens.[66] Even so, his exposure to Kokatha culture is limited. His own knowledge and experience is insufficient to qualify him to speak directly as to the consequence of drilling to the Kokatha. The significance of his evidence is ultimately a question for the court to determine: Rogers v Whitaker,[67] Daniel v Western Australia.[68] It can be accepted that the other evidence of dire consequences if drilling goes ahead is consistent with Western Desert Culture and his knowledge (so far as it goes) of Kokatha culture. Nevertheless the case for the respondent on this topic must ultimately depend on the evidence of the Kokatha watis themselves.[69]
61. Dr Willis confirmed the recognised status of the Tjukurpa and the associated ceremonies accepted in Western Desert culture and of the various dreaming stories critical to it. He was taxed as to the survival of the law if the proposed exploration went ahead. His response was much the same, that it would be damaged but not destroyed. This subject will be discussed at greater length later.

History of exploration and consultation

62. As mentioned earlier, there is evidence that Western Mining Corporation previously drilled in the subject area. It later abandoned the prospect of mining as pointless. However Mrs Jones a geologist and now exploration manager for Straits, said that since those earlier drill results, Straits had collected considerably more information, indicating:[70]

...some very intense areas that are not where Western Mining had previously drilled, and they are the areas that we want to test. Overall this is a very large anomaly and there are some very specific areas within it that we now know are there that haven't been drill tested.

63. Her evidence was that between 1977 and 1982, Western Mining conducted operations in the area of the exploration lease 4296, involving the two drill holes into Lake Torrens itself and one on Andamooka Island. These reached depths of between 498 m and 881 m.[71] There was earlier activity, from sometime unknown before 1947 and up to 1964, involving the search for water by digging wells. The first recorded exploration for minerals in the area was on 22 August 1968, searching for copper, lead and zinc, through to 24 August 1983, when the search widened to include gypsum, gold, copper and uranium. There was also evidence that BHP Billiton conducted operations in January 2008.[72]
64. The history of the way in which Straits has conducted its negotiations and exploration activities around the subject area so far, is intricate. This was by and large outlined by Mr Calvin, a Balladong Aboriginal man from Western Australia, employed by Straits. He commenced working for them a second time from 10 December 2007, as its Community and Heritage Manager. He claims drilling operations followed “a number of meetings and heritage surveys with representatives of the three native title claim groups who then had pending claims in the Federal Court with respect to the area of EL 3195”.[73] For the purposes of furthering such consultations, he resided in Port Augusta between 14 October and 11 December 2009.
65. The surveys relied upon by Mr Calvin commenced with a self titled “proposal for the conduct of a survey” reached between Kelaray and the Kuyani native title group represented by Michael McKenzie and others, on 5 May 2004.[74] This records in paragraphs 6, 7 and 16 respectively:

6. Following a consultation meeting with the Kokatha in August 2000, Minotaur was advised by ALRM on behalf of the Kokatha that “Lake Torrens is a highly significant area to the Kokatha people and the report from a pervious clearance undertaken by the Kokatha in this area indicates that the Kokatha have excluded Lake Torrens and its surrounds from exploration .... The Kokatha have indicated to undertake the proposed clearance would be a waste of resources as their decision to exclude the Lake Torrens area from any activity (exploration or mining) would stand”.
7. In a letter to Minotaur’s lawyers in October 2000 Phillip Teitzel for the Barngarla referred to a previous clearance for WMC on Lake Torrens and a consensus of four groups of Native Title claimants undertaking the clearance that “Lake Torrens should not be explored, as such exploration may interfere with sacred sites”.
...
16. The Kuyani SC00/3 Native Title claimant group have agreed to undertake a Native Title and Aboriginal site survey of the proposed drill site locations which will permit access to and the conduct of exploration works within any cleared areas on conditions acceptable to the parties and in particular recognising any cultural significance within the area of the conduct of the said drilling program.

An attached schedule went on to state that up to five drill holes were proposed over a four month period, to a depth approximately 400 m. These were said to:[75]

not involve excavation on the lake but would be an underground operation with a shaft access from the shore on Andamooka Island ... for mine reasons the lake would remain untouched.

66. Mr McKenzie and others on behalf of the Kuyani claim group, purported to clear the whole of the proposed exploration area on the same day, 5 May 2004.[76] However in a separate document bearing the same date it is noted the reference to “Minotaur” therein was to a joint venturer with Kelaray at the time, with respect to the Exploration as it then was:[77]
    5. Minotaur in 2000 approached the Kokatha and Barngala people (both claimant groups responding to a PART 9B Notice) for “clearance” to undertake a drilling program in the same area where the WMC holds had been drilled.
    6. Following a consultation meeting with the Kokatha in August 2000, Minotaur was advised by ALRM on behalf of the Kokatha that “Lake Torrens is a highly significant area to the Kokatha people and the report from a previous clearance undertaken by the Kokatha in this area indicates that the Kokatha have excluded Lake Torrnes and its surrounds from exploration ............................ the Kokatha have indicated to undertake the proposed clearance would be a waste of resources as their decision to exclude the Lake Torrens area from any activity (exploration or mining) would stand”.
    7. In a letter to Minotaur’s lawyers in October 2000 Philip Teitzel for the Barngarla referred to a previous clearance for WMC on Lake Torrens and a consensus of four groups of Native Title claimants undertaking the clearance that “Lake Torrens should not be explored, as such exploration may interfere with sacred sites”.
    8. In January 2001 Minotaur in a letter to PIRSA expressed its concerned “that while not being in a position to comment on the cultural significance of any one particular lake including Lake Torrens, it is of great concern that ...”
67. Next on or about 30 August 2005, Straits entered into a “work area clearance agreement” with the Barngarla native title claimants.[78] This led in turn to three subsequent surveys by that group, on 4 September 2005, 26 March 2006 and 22 and 23 November 2007. In the first of these it was confirmed that “the western side of Lake Torrens is important as part of the route of ancestral Wilyeru men travelling south ...”, that “Lake Torrens and Andamooka Island are in a general sense, traditionally significant”, that there was “a significant archaeological site in the dunes ... on Crombie Ridge” and “recommended” Crombie Ridge be excluded from all exploration activities ...”.[79]
68. The clearance of 26 March 2006 records the Barngarla claimants had not as yet made a formal decision on the proposed drilling. They made it unambiguously known such a decision should await consultation with the Kuyani and Kokatha claimants:[80]

Of concern to the Barngarla representatives, however, is the advice from the Straits representative that the Kokatha Native Title Claimant group is saying that the lake and its shores is of major mythological significance. Although sceptical of the Kokatha claims the Barngarla representatives are reluctant to declare that the proposed drilling area has no traditional significance and may be drilled. To this end they have suggested that it is best if they reserve their judgement until the Kokatha (including representatives of the Andamooka Land Council) have carried out a survey of the area.

69. A later report prepared for Straits of September 2006, noted internal struggles “within the broader Kokatha group for control of traditional law matters and cultural heritage concerns”, and then continued:[81]

... Straits Resources have, to date, been unable to convene an inclusive, representative cross-section of the board of Kokatha group to undertake an Aboriginal heritage survey of the three proposed drill hole locations.

70. It stated members of the ALC did not have any objections to the proposed drilling activities provided associated disturbance was kept to a minimum. In the section “summary and recommendations”, the report writer noted the ALC was in favour of a heritage survey being conducted over the proposed development areas, but it suggested Straits pursue:[82]

... a course in which separate heritage surveys of the proposed exploration drilling program are conducted with each of the separate Kokatha factions is now the only sensible option available to Straits Resources.

It concluded that it was:[83]

... necessary for Straits Resources to commence (or continue) discussions with the KPC regarding its requirements for the conduct of the heritage survey of the Torrens JV Project Area.

71. A further report by the same author of the September 2006 report for Straits, noted again there was “mutual acknowledgement regarding heritage matters in the Andamooka region between the KPC and the ALCAC”, so much so that the “ALCAC was reluctant to conduct a heritage survey without the participation or endorsement of the KPC”.[84] In view of the “deadlock” it recommended “a final attempt to facilitate this with the inclusion of strict time lines by which the heritage survey(s) needs to be conducted”.
72. The ALC by its letter under the hand of Daniel Clifton, transmitted by facsimile to Philip Davidson at Straits’ Perth office on 14 September 2007, made reference to an ALC heritage survey on 16 December 2006, and proceeded to warn Straits:[85]

Please be aware the ALCA per se does not speak for all of Kokatha and that other members of Kokatha may present a different view to that of the ALCA ... we understand that other members of the Kokatha chose not to participate at the time of the survey.

The facsimile suggested Straits should follow up the matter through the Kokatha’s solicitor Mr Eckermann, and Dr Draper their anthropologist. Even so, Straits entered an agreement for a clearance survey with the ALC on 1 November 2006, executed by a number of persons, including Daniel Clifton.[86]

73. An area of some 6,350.77 kmç was first reported into the archives on 31 August 2007 to the Aboriginal Affairs Division of the Department of Premier and Cabinet No. 6436-727, as fully encompassing “Andamooka Island including Crombie Ridge”.[87] This covered the whole of Lake Torrens, together with a 500 m buffer zone around the shoreline. The source of this initial report was not the subject of any evidence. The entry was revised in April 2008 following a report from Dr Draper, to be referred to shortly.[88]
74. A third survey of November 2007 for the Barngarla people, gave qualified clearance in respect of four drill hole collars confined to single points (as marked therein), with a proviso “Straits Exploration (Australia) Pty Ltd to approach claimants prior to any further activity on Lake Torrens”.[89] This proviso was made in the expectation of a “round table meeting” with representatives of the Kokatha and Kuyani native title claimants, on the understanding that “work on Lake Torrens itself (proposal not covered in the survey) must not proceed in advance of this meeting”. The survey acknowledged (in para 5.1), that Andamooka Island and the Island itself were “the preserve of men’s business and cannot be witnessed by women”.
75. A subsequent agreement of 13 December 2007, was then reached with different representatives of the Kuyani native title group, to conduct a further heritage survey on Andamooka Island.[90] A site survey of the same date, gave only partial clearance to each of four named areas, on Exploration Lease 3195 as it then was, adjacent to Crombie Ridge.[91]
76. It should be recalled at this point in the chain of events, that Straits itself conducted drilling between 31 October 2007 and 25 February 2008, in the subject area. The evidence of both Mrs Jones and Mr Calvin was that one of those drill holes penetrated laterally into the surface beneath Lake Torrens, even though Lake Torrens itself was possibly a registered Aboriginal site.[92] Over this period three holes were drilled at two separate locations. The first commenced on 31 October and was completed on 3 December 2007 at a depth of 1,198 m, the second in close proximity, at an angle under the surface of Lake Torrens drilled to a depth of 1,183 m, commencing on 3 December and completed on 21 January 2008. The final hole drilled at a separate location, commenced on 29 January, finishing on 25 February 2008 to a depth of 1,154 m.[93] At these times both the Barngarla and the Kokatha native title claimants were on the public register kept by the National Native Title Tribunal. At no stage had Straits embarked upon any of the Part 9B processes with the Kokatha. At best all they had was the ALC “clearance” referred to above.
77. It was coincidentally within this period of time that Dr Draper conducted an heritage survey over four potential drill sites and related access tracks, within the Straits Exploration licence area, nearby Andamooka Island. This was on 9 December 2007, in the presence of several Kokatha representatives including Robert and Michael Starkey, as well as Philip Jones a senior geologist employed by Straits.
78. Straits was expecting this report, since Dr Draper emailed them on 13 December stating he was giving it “a high priority, knowing your situation”. On the same day Environmental Manager (Approvals), Kim Ferguson indicated she had already spoken with “Phil”. She advised Draper:[94]

Hi Neale
Thank you for your time in attending the Kokatha survey on Sunday, we appreciate the effort involved in mobilising for a remote survey such as that. In speaking with Phil on completion of the survey, he suggested that although you are very busy and will not get a final report to us until January that you were able to complete a preliminary report advising us of any critical issues so that we can continue with planning our drill program which is scheduled to commence early in the new year.
I would really appreciate it if you could please provide us with this preliminary advice at your earliest possible convenience – it is understood that it was suggested that it would be available by the end of this week.
Please do not hesitate to contact me to discuss the preliminary advice or the report.
Regards
Kim

79. Dr Draper observed in his report received by Straits on 20 December attached to an email, that the Kokatha were not involved in previous cultural heritage surveys over the area. He emphasised that Andamooka Island was a place of high cultural significance to them.[95] The email although directed to Kim Ferguson of Straits, was copied to Mrs Jones, Phil Jones and Mr Calvin, amongst others. In view of the impact drilling would have on the site, none of the four proposed sites were cleared for drilling.
80. Dr Draper’s report was quite detailed and explicit, the material part being this:[96]

1.11. Ethnographic Field Results
The field survey on 9th December 2007 resulted in the identification by the Kokatha Watis (initiated men) and Yankunytjatjara Tjilpi (senior initiated man) present and the recording by the anthropologists of a cultural site of very high significance that incorporates the sandhill feature known as Crombie Ridge at one level, as a component of a larger site which comprises Andamooka Island in its entirety. Andamooka Island in turn forms a specific component of a larger site (previously recorded and submitted to AARD in w2007) which encompasses all of Lake Torrens, as well as some surrounding topographic features. It is understood that Andamooka Island was omitted from the previous AARD Aboriginal Site Record for Lake Torrens in error, although Andamooka Island was not a specific focus of the field work on that occasion.
The ethnographic information provided to the anthropologists in relation to the identification and recording of these sites is detailed and consistent with earlier reports concerning Lake Torrens by Willis (1996) and Abdel Aziz and Willis (1996). Like those previous reports, this ethnographic information is culturally sensitive and must remain confidential. An Aboriginal Heritage site record is being prepared for submission to AARD at the request of the Kokatha participants in the survey. There is no doubt, in the opinion of the anthropologists, that this is a genuine site of significance according to Aboriginal tradition, as identified by Aboriginal traditional owners, in the terms of the South Australian Aboriginal Heritage Act (1988).
The amended site record includes within its boundaries the entire area of Lake Torrens and a minimum zone 600 metres wide around the shoreline of the Lake, including Andamooka Island. More specifically, the Kokatha informants have emphasized that they consider that the ground disturbance associated with exploration drilling activities would damage, disturb, and interfere with this significant site (Section 23, Aboriginal Heritage Act 1988), causing both physical and cultural damage to the site and to Kokatha and other Aboriginal people, as well as constituting an offence under the Act. Consequently, none of the four proposed drill sites that were inspected can be given heritage clearance, and the current drilling near the eastern shore of Andamooka Island that was observed during the field visit is also causing damage to a significant Aboriginal Heritage Site and great distress to the traditional owners who observed it, and should cease.
The current drilling operation has not been cleared or consulted with the Kokatha Mula Nation Land Council, which represents the Applicants of the Kokatha Native Title Claim SAD 6013 of 1998 in Aboriginal Heritage Matters. Consequently, the Native Title Act requirement to consult (all of) the applicants of a registered native title claim for such a Future Act appears not to have been completed, which might constitute a breach of the Future Act provisions of the Commonwealth Native Title Act (1993) as well as the Section 23 of the South Australian Aboriginal Heritage Act (1988). Please note that this ACHM report concerns Aboriginal heritage matters and does not purport to provide legal advice.
The Chairperson of the Kokatha Native Title Management Committee, Andrew Starkey informed the Straits representative of the offensive nature of the current drilling activities during the site inspection. The location of the Straits camp on Andamooka Island is also considered to be culturally offensive and damaging (Figure 9). It lies directly adjacent to (approximately 50 metres away from) the eastern “tail” of the Crombie Sand Ridge cultural feature, which is considered far too close to this culturally dangerous and powerful site, and it has caused substantial physical disturbance to Andamooka Island, which is a significant cultural site. The Kokatha representatives ask that the drilling rig and camp should be removed from the Island, that no further exploration activities should be allowed within the recorded site area (Lake Torrens including Andamooka Island). Consistent with these recommendations, it is understood that recent consultations between the Kokatha Native Title group and BHPBIO have resulted in agreement by BHPBIO to terminate exploration activities on their exploration lease adjacent to the Straits lease on Andamooka Island and Lake Torrens.

Straits response to Draper report

81. It is obvious from the material just quoted that the relevant higher echelons of the Straits organisation received copies of the Draper report by 20 December. The return message to Dr Draper of 13 December gave the distinct impression drilling was not to commence until early in the new year.
82. For her part Mrs Jones stated the first time Straits became aware of any problem was in early January 2008, when she first read the Draper Report.[97] When asked what enquiries were made of the Department of Aboriginal Affairs and Reconciliation as to the existence of sites of significance in the area, she responded that this was Mr Davidson’s responsibility. She had approached Mr Davidson only to be assured “everything was in order”.[98] She described Mr Davidson as “quite a closed man”, one not in the same section of the company as she was. Davidson was Straits’ environmental, occupational health and safety community group manager at that time.[99]
83. It transpires that Straits made no such Departmental searches, until prompted during the course of these very proceedings. This was despite the fact that the Draper report itself referred to the recording of Andamooka Island in 2007. Their inquiry on 27 November 2010 of the Department of the Premier and Cabinet (Aboriginal Affairs and Reconciliation Division), revealed that:[100]

According to information held on the Central Archive please refer to the following in relation to the Lake Torrens cultural site:

• The original site was reported to aard on the 27/06/2007 by Andrew Starkey (the site is mentioned in a number of Work Area Clearances previous to this date but no site card was submitted) (it is unclear whether this includes Andamooka Island)
• This was entered onto the Central Archive on 31/08/2007 – this would have been entered as a single point at this stage but the description on the site card says the whole lake and 500m from the shoreline should be protected (this would include Andamooka Island?)
• A revised report was submitted to AARD by ACHM on the 28/04/2008, (including A. Starkey and N. Draper as recorders) a site polygon was provided to us with that report which would have been added to the Central Archive soon afterwards (no date is provided for when the polygon was added to the Register as site 6436-7237, but the polygon includes Andamooka Island).

I would just like to reiterate that the site is an entered site and has not been through the section 12 determination process to register it.
...

84. In an endeavour to explain why drilling continued despite the receipt of the Draper report, and despite the fact that it emphatically indicated the claimants wanted drilling stopped immediately, she responded under cross-examination by Mr Hughston SC:[101]
    1. We didn't receive that report until the week before Christmas. I had an opportunity to review it and bearing in mind that up until that point I'd been told that everything was in order, that the clearances that were required to be done and the approvals that were required to do the drilling were in order. Subsequent to reviewing that report, it was clear to me that there was a problem that needed to be addressed. We needed assistance, I wasn't experienced particularly in this area of native title or heritage, so we proceeded to get some assistance to interpret what had been presented to us, because there were other groups that had been out there. I'd been told there were other groups that had been out there and things were okay from their point of view. When it was clear to us by about mid-February after speaking to a number of people about this, that we needed additional approvals, that Part 9B wasn't complied with, that these agreements weren't registered against the tenement. We stopped drilling at the end of the next hole and -
    17. But just in - yes, keep going.
    1. We stopped drilling at the end of the next hole because I wasn’t comfortable, being a new manager in this, in continuing with something that clearly wasn't the right thing to do. So we stopped with the intention of getting this sorted out, which is why we're here today.
85. Later the cross-examination of Mrs Jones proceeded:[102]
    17. You've read Draper's report in - was it early January.
    1. It was quite early in January.
    17. That report did make it clear in no uncertain terms that there wasn't approval and that the drilling had to stop. I think we've already discussed that. You accept that that's what the report said.
    1. Yes, that's what the report said.
    17. But you kept right on going didn't you.
    1. This particular group wasn't the only group that we needed approval from at the time.
    17. But you needed their approval didn't you, they were registered native title claimants, you knew that.
    1. Yes.
    17. You knew you didn't have their approval.
    1. We'd had Mr Clifton out previously as I understand it, to do a clearance.
    17. It's not what I asked you. You knew you didn't have the approval of the Kokatha native title claimants.
    1. I know now we didn't yes.
    17. But you knew back then as soon as you read Dr Draper's report. Isn't that right.
    1. At the time I had no understanding of what the dynamics of the groups were, and Mr Davidson said to me Mr Clifton's cleared it, he's a signatory to the claim. The Kokatha which is the group that produced that report, have said no to the drilling and for me to be able to understand and interpret what that all meant in the scheme of three groups, and one portion of one group saying yes and one portion of another group saying - of that group saying no, was something that I had to get sorted out to be able to understand what that meant. Once we had sorted that out and we understood what that meant, we stopped.
    17. When did you first become aware that you needed a registered agreement if you were to satisfy the requirements of Part 9B of the Mining Act or alternatively, you needed a determination.
    1. In February 2008.
    17. So up until that stage, you and presumably Straits, had no idea that a registered agreement was required with Native Title claimants before you could actually carry out exploration activities on their land.
    1. I can't speak for what Mr Davidson knew.
    17. How long has Straits been operating in South Australia for.
    1. Only for this project, this is the only project up until very recently that we've had in South Australia.
    17. There are very similar requirements though in every State and Territory of Australia, aren't there, under the Native Title Act.
    1. It's quite different in other States.
    17. Yes, well, perhaps we'll return to that. When you took over responsibility in August 2007 as the Exploration Projects Manager or Acting Exploration Projects Manager, did you read all the documents on the file, review the file in terms of what approvals there were and what approvals still needed to be got.
    1. Not in respect of Native Title and Heritage because those responsibilities rested with Mr Davidson.
    17. Are you now aware that the Kokatha Native Title claimants and we're talking about the Kokatha claim that was registered at the time that those exploration activities were conducted on Andamooka. Are you aware now that that group had always vigorously expressed its opposition to any exploration mining activities taking place on Lake Torrens.
    1. I'm aware now, yes.
86. It was then squarely put to her that Straits was aware by no later than May 2004 that proposals to drill on and around Andamooka Island was firmly opposed by the Kokatha people, especially at a time when relevant Native Title claims of one description or another were current over the subject area. To these assertions she responded:[103]

Mr Davidson would have been aware of that, whether the company was aware as a corporate body, I don’t know as I said Mr Davidson was a fairly closed man, he didn’t share a lot of information around but yes, it is in the documentation.

87. For his part Mr Calvin fared little better in explaining Straits decisions. It may be acknowledged that he inherited a tricky situation shortly after starting the job in early December 2007. As a person of Aboriginal heritage receiving the Draper report shortly before Christmas, he was in a uniquely placed position to understand its full implications and because of his position in the company, to influence the decision-making of Straits. It was his evidence that he realised drilling should not proceed and immediately reported to his superiors. For some inexplicable reason he was unable to inform the court why it took until late February the following year before drilling was stopped. This evidence is considered in more detail later in these reasons.
88. Another difficulty confronting the applicants is the unstated assumption evident in the passages from the evidence of Mrs Jones quoted above, that there were in effect “Chinese walls” serving to insulate one section of Straits from another. The fact is that Straits is a single corporate entity, so that given their positions in the hierarchy of the company, the knowledge of Mrs Jones, Mr Calvin, Ms Ferguson and Mr Davidson for that matter, was the knowledge of Straits. The fact remains that Straits as a corporate body had notice of the acute problems by 12 December 2007, and certainly no later than the 20th when Dr Draper’s entire report was received.
89. Another compounding feature in the presentation of Straits’ case, is that no one from further up in the hierarchy than Mrs Jones or Mr Calvin, were called to explain the decision making process on this question, or to explain the delay. Even worse, was a failure to call Phil Jones the senior geologist who was on site at the time, to either refute the assertion, or otherwise inform the court precisely what he did or did not do once he was informed by Andrew Starkey of “the offensive nature of the current drilling activities”, or to explain why he did not stop drilling there and then. Mr Starkey was not contradicted as to this exchange taking place.
90. The same comments apply equally to Mr Taylor, Mrs Jones and Ms Ferguson, since Mr Calvin spoke to each of them about the issue. Davidson is no longer in their employ. Mr Calvin says Mrs Jones was “just as alarmed as me” and that he discussed his “concerns” with “my general manager of technical services, Jeremy Taylor ... and our environmental projects manager Ms Kim Ferguson”, with a recommendation “that they cease these drilling activities immediately”.[104] This recommendation was made early in January 2008.[105] His evidence, incidentally, is inconsistent with the assertion of Mrs Jones that the report only came to her attention in the New Year. It is also refuted by Draper’s email which was copied direct to her on 20 December.[106]
91. Indeed Mrs Jones said in her evidence she first became aware of this aspect of the matter upon receiving the report in early January 2008. Once again she fobbed responsibility for this on Mr Davidson’s shoulders:[107]
    17. Were you aware at the time - what was your awareness of the status of Lake Torrens in terms of whether there was a registered site, whether there was a recorded site, have any awareness at all.
    1. Yes, the first indications to me that there was a problem was when we received in early January 2008, when I read it, there was a report that was prepared by ACHM that said there was a site there and that obviously, the Kokatha people, the people who had been out on that survey, were not comfortable with what had occurred.
    17. What steps, if any, did Straits take before that drilling operation on Andamooka Island to make inquiries of the - was it Department of Aboriginal Affairs and Reconciliation, the department that holds the register of sites.
    1. Yes.
    17. What inquiries, if any, did you make of that department.
    1. That would have been Mr Davidson's responsibility.
    17. If he had have made that inquiry, presumably, he would have got the response from the department that there was a registered site there.
    1. In hindsight, I know that now, yes.
    17. What is the procedure; is there a standard procedure at all that Straits has before it carries out exploration activities for making inquiries of the relevant department about the presence of other recorded or registered sites.
    1. There is a procedure now, yes.
    17. Procedure now.
    1. Yes,
    17. What is that procedure.
    1. Well, the procedure is that you have to make an approach to the relevant authority that deals with these things to check to see whether there is recorded sites, registered sites, whatever State we are operating in around the country.
    17. So you say that is the procedure now, when did that procedure come in.
    1. That procedure - there was a policy brought in in April 2008 and there was a procedure brought in, I think, in 2009.
    17. So prior to that, there was no procedure for checking as to whether there were recorded or registered sites on areas of proposed exploration activities.
    1. Not that I'm aware of.
92. The Draper report rang “alarm bells” in the mind of Mr Calvin to the point that he took it up immediately with senior management. He confessed to having no knowledge of Departmental records before seeing it. He and Mr Davidson, Straits’ senior geologist actually discussed it on 13 December 2007, after Phil Jones related to him the fact that Kokatha wanted the drilling activity to stop.[108]
93. He proceeded to explain that he spoke about the issue in December 2007 with Mrs Jones, his general manager of technical services Jeremy Taylor and their environmental projects manager Ms Kim Ferguson, following which:[109]

... there was a recommendation from my general manager to open dialogue with the Aboriginal Affairs and Reconciliation division to confirm what was said in the report and then to come back with some recommendation to him, which I did do. That was in – you know then we had the holidays in between. Then it wasn’t until January that we were able to do it.

Mr Calvin stated in his evidence that it was his recommendation to management, that they “cease these drilling activities immediately”.[110]

94. As to the failure to halt drilling Mr Calvin merely responded “we need to see the final report ... and then ...review the position from there”.[111] Thereafter he claims to have sought legal advice. When asked “why did it take until 25 February for Straits to cease its drilling operations” he responded:[112]
    1. Well, there was a period of time while we carried out our investigations into this recording of the site. What was required in South Australia, what type of agreement that was required to be undertaken by the company to negotiate on. So there were a series of things that held that process up as well.
    17. Could I suggest to you that, I think you've agreed that you know alarm bells did ring when you've read this.
    1. They certainly did, yes.
    17. They're fairly serious allegations that are being made there in terms of what Straits has done and how significant the site is.
    1. Well, there are the allegations that Straits had obviously done something wrong –
    17. Yes, I mean there's –
    1. and it was, we as - when I say we, I'm speaking about the management of Straits - looked at everything that we need to do to be able to rectify this.
    17. But why would it take more than two months before you had ceased your drilling operations. Why would it take so long.
    1. Look, I don't know how long it takes to demobilise drill rigs and do other vegetation type works so I can't really answer what you want.
95. When pressed for an explanation Mr Calvin fell back on the ALC “clearance” and management:[113]
    17. But you see I put it to you that Straits never reached an agreement with the Kokatha native title claimants before going on and drilling on Andamooka Island in late 2007 early 2008. Do you agree with that or disagree with that.
    1. The only agreement that we do have is the work area clearance agreement that was signed off by the Andamooka Land Council.
    17. Do you accept that there was no signed agreement with the Kokatha native title claimants.
    1. At that time, yes, I would.
    17. How could that happen. How could Straits go onto Andamooka Island and drill without first obtaining the consent of the native title claimants who had registered their claim and whose rights were clearly inconsistent with the drilling program.
    1. Yes, that would have been determined by the past management of Straits, okay, I'll make that very clear, Mr Phil Davidson and his technical general manager at that time. I certainly won't be making any assumptions for his behaviour or actions. How I would read it very clearly is that there was one of the named applicants for this had signed a work area clearance agreement and that that applicant gave us the clearance.
    17. But you accept don't you that that is simply not what was needed. Getting one of the applicants on behalf of the Andamooka Land Council to sign a clearance is not the same as getting a clearance, an agreement with the native title claimants. Do you accept that. It's your understanding, isn't it, that getting an agreement signed by one only of the named applicants and purporting to do so on behalf of the Andamooka Land Council is not the same as obtaining the written agreement of the native title claimants.
    1. As presently stands, as we understand it now, it's the process of signing the part 9B with those groups, or those individuals.
    17. Is it your understanding that Straits puts its commercial considerations ahead of considerations of Aboriginal heritage.
    1. I would not have thought Straits did that. In fact as an indigenous person I wouldn't be working for the company if I thought they had.
    17. What other explanation can there be for Straits proceeding to carry out exploration activities without obtaining first an agreement with the native title claimants.
    1. I think that you are asking me to answer for past management of this particular project.
96. This must have been a reference to Daniel Clifton’s email of 14 September 2007, which as appears earlier, was incomplete and quantified. It clearly contained no sufficient warrant for the drilling that commenced six weeks later.
97. The upshot of all this evidence is that no adequate explanation was forthcoming as to why it took more than two months for drilling to cease, or for that matter why drilling was not stopped, or at the very least postponed on either 9, 13 or 20 December. The fact of the matter is that Straits must have realised the ALC held no authority to commit the Kokatha as a registered native title claim group to site clearances, and that this was only achievable under Part 9B. Both Mrs Jones and Mr Calvin eventually conceded the Kokatha were not consulted before drilling was undertaken, even though they were known at all material times to be a relevant native title claim group over the subject area.[114] No one from the management of Straits was called to fill the obvious evidentiary gaps in its decision making process. It is clear however that Straits proceeded to complete the three drilling operations during which it serendipitously collected data upon which it now substantially bases its resolve to explore further.

The Declarations of Environment Factors

98. Ultimately Mrs Jones conceded the various drafts of the Declarations of Environmental Factors successively submitted to the Primary Industries and Resources Department of South Australia, were not amended to “inform the Government ... that there was significant cultural heritage issues involving the whole of Lake Torrens”.[115] These were supposed to have been successively amended to align them with the application, under s 23 of the Heritage Act.
99. Clause 17 of Schedule C to Exploration Licence 4296, reads:[116]

Prior to entering the Lake Torrens National Park in order to carry out exploration operations, approval must be obtained from the Minister for Environment and Conservation and the Minister for Mineral Resources Development.  An application supported by a Declaration of Environmental Factors (DEF) to carry out such operations should be lodged with the Department of Primary Industries and Resources.  The DEF will describe the proposed operations and their locations; identify sites of environmental sensitivity within the proposed work area; and formulate a process for environmental management to ensure that the field procedures avoid or minimise the impact of proposed field activities on the environment.

The licence also provided that Kelaray should “perform and comply with the provisions of the Mining Act” (clause 1.1(i)), and still further:

SCHEDULE C
ADDITIONAL CONDITIONS
1. This Licence confers no rights on the Licensee to carry out operations on “native title land” (as defined in the Native Title (South Australia) Act 1994) within the area of this Exploration Licence other than in accordance with Part 9B of the Act.

100. The first of the requisite Declarations of Environmental Factors was dated 24 August 2007, the relevant sections being these:[117]

2.6.3 Native Title
Three overlapping indigenous Native Title Claims, represented by the Barngarla, Kokatha and Kuyani People, encompass the tenement area.
A detailed literature review of native title issues and cultural heritage sites was commissioned through Pacific Sene (Fitzpatrick, 2005 – Appendix 2) prior to the instigation of heritage surveys with relevant custodians of the Barngarla, Kokatha and Kuyani People.
2.6.4 Indigenous Heritage Management and Consultation
Heritage clearance surveys have been completed with the Barngarla, Kuyani and Kokatha People with no resultant significant heritage issues identified that cannot be avoided (Appendices 6 and 7).
The resultant requirements for access are:

• avoid Crombie Ridge (sand dune – Barngarla and Kokatha) that hosts a significant number of artefacts and was also a potential men’s ceremonial site;
• avoid a naturally occurring stack of rocks near the shore of Lake Torrens (Kuyani);
• only utilise the historical built up causeway to access the island (avoid the pastoral access track to Andamooka Island as this is of ethnographic significance – Kokatha); and
• avoid all sand dunes on Andamooka Island (Kuyani, Barngarla, Kokatha) (Figure 6).

No cultural heritage issue have been identified that would impede exploration activities other than a general view that Lake Torrens should not be unduly impacted upon (Kokatha and Barngarla).
Additional general heritage information about the region was gained from a meeting held with appropriately qualified Kokatha custodians (Male and Female) in September 2006 in regards to the ethnographic information surrounding the project area that included both a women’s and male song line running roughly north-south and parallel to the lake; one located in the ranges to the west and one located on the western lake margin. These areas will not be compromised during the exploration program. It is anticipated that these areas will be better delineated prior to ground disturbing works commencing in respect to drilling activities.
Further heritage clearance programs will be conducted with all relevant indigenous groups to ensure all areas of proposed activity are fully assessed for ethnographic or archaeological sites of significance. Work programs will be specifically limited to those areas that have prior clearance by all relevant indigenous groups.

101. The following appeared in the Declaration of Environmental Factors dated 27 November 2009:[118]

2.6.2 Environmentally Sensitive Locations
DEH have indicated that Lake Torrens is of significance: it is a proclaimed national park and DEH have specified requirements for avoiding or minimising impacts to it. These are discussed in Section 2.6.1.
There are no other special management zones, geological monuments or European sites of historical or cultural significance with EL4296. Table 4 and Table 5 in Section 2.4.3. identify the species of conservation significance known to occur in the broader region, however, none of these species have been recorded within EL4296.
2.6.3 Native Title
Three overlapping indigenous Native Title Claims, represented by the Barngarla, Kokatha and Kuyani People were lodged over the tenement area.
A detailed literature review of native title issues and cultural heritage sites was commissioned through Pacific Sene (Fitzpatrick, 2005 – Appendix 2) prior to the instigation of heritage surveys with relevant custodians of the Barngarla, Kokatha and Kuyani People.
The overlapping claims have since been superseded with the Kokatha Uwankara (KU) claim was registered on 21 August 2009. Straits and Straits Legal Counsel met with the KU Interim Management Committee on 26 September 2009 at Port Augusta to commence relationship huilding and initiate Part 9B negotiations.
2.6.4 Indigenous Heritage Management and Consultation
Heritage clearance surveys have been completed with the Barngarla, Kuyani and Kokatha People with no resultant significant heritage issues identified that cannot be avoided (Appendices 6 and 7).
The resultant requirements for access are:

• avoid Crombie Ridge (sand dune – Barngarla and Kokatha) that hosts a significant number of artefacts and was also a potential men’s ceremonial site;
• avoid a naturally occurring stack of rocks near the shore of Lake Torrens (Kuyani);
• only utilise the historical built up causeway to access the island (avoid the pastoral access track to Andamooka Island as this is of ethnographic significance – Kokatha); and
• avoid all sand dunes on Andamooka Island (Kuyani, Barngarla, Kokatha) (Figure 7).

No cultural heritage issue have been identified that would impede exploration activities other than a general view that the Lake should not be unduly impacted upon (Kokatha and Barngarla).
Additional general heritage information about the region was gained from a meeting held with appropriately qualified Kokatha custodians (Male and Female) in September 2006 in regards to the ethnographic information surrounding the project area that included both a women’s and male song line running roughly north-south and parallel to the lake; one located in the ranges to the west and one located on the western lake margin. These areas will not be compromised during the exploration program. It is anticipated that these areas will be better delineated prior to ground disturbing works commencing in respect to drilling activities.
Further heritage clearance programs will be conducted with all relevant indigenous groups to ensure all areas of proposed activity are fully assessed for ethnographic or archaeological sites of significance. Work programs will be specifically limited to those areas that have prior clearance by all relevant indigenous groups.
The KU Interim Management Committee met on 26 September 2009 and passed the following resolution:
That Straits Exploration should initiate negotiations for an Exploration agreement with the registered claim group, and that the agreement will form the rules about access to the land for mineral exploration by Straits. Straits under that Agreement must abide by any conditions relating to their proposed exploration as documented in any Report coming out of a heritage survey with representatives of the claim group.
Therefore, based on the above resolution Straits Exploration (Australia) Pty Ltd commenced the Part 9B process. The Part 9B was advertised in the SA Advertiser and Kurri Mail on 4 November 2009 with the arrangement for all Form 27 notices to be served on the relevant parties on the same day.

102. The most recent version sent to the Department of Primary Industries and Resources SA on 14 October 2010, was in relevant respects this:[119]

2.6.2 Environmentally Sensitive Locations
DENR have indicated that Lake Torrens is of significance: it is a proclaimed national park and DENR have specified requirements for avoiding or minimising impacts to it. These are discussed in Section 2.6.1.
Apart from the national park and the registered Aboriginal heritage site and associated values, there are no other special management zones, geological monuments or European sites of historical or cultural significance with EL4296. Table 4 and Table 5 in Section 2.4.3. identify the species of conservation significance known to occur in the broader region, however, none of these species have been recorded within EL4296.
2.6.3 Native Title
Three overlapping indigenous Native Title Claims, represented by the Barngarla, Kokatha and Kuyani People were lodged over the tenement area.
A detailed literature review of native title issues and cultural heritage sites was commissioned through Pacific Sene (Fitzpatrick, 2005 – Appendix 2) prior to the instigation of heritage surveys with relevant custodians of the Barngarla, Kokatha and Kuyani People.
The overlapping claims have since been superseded with the Kokatha Uwankara (KU) claim was registered on 21 August 2009. Straits and Straits Legal Counsel met with the KU Interim Management Committee on 26 September 2009 at Port Augusta to commence relationship building and initiate Part 9B negotiations. At the time of writing, the Part 9B process was continuing.
2.6.4 Indigenous Heritage Management and Consultation
Heritage clearance surveys have been completed with the Barngarla, Kuyani and Kokatha People and resulted in the Section 23 approval to undertake the proposed activities within the registered Aboriginal heritage site. Additional to the overall requirements of the Section 23 approval, the following areas with heritage value and the resultant access requirements were identified (Appendices 6 and 7):

• avoid Crombie Ridge (sand dune – Barngarla and Kokatha) that hosts a significant number of artefacts and was also a potential men’s ceremonial site;
• avoid a naturally occurring stack of rocks near the shore of Lake Torrens (Kuyani);
• only utilise the historical built up causeway to access the island (avoid the pastoral access track to Andamooka Island as this is of ethnographic significance – Kokatha); and
• avoid all sand dunes on Andamooka Island (Kuyani, Barngarla, Kokatha) (Figure 7).

Additional general heritage information about the region was gained from a meeting held with appropriately qualified Kokatha custodians (Male and Female) in September 2006 in regards to the ethnographic information surrounding the project area that included both a women’s and male song line running roughly north-south and parallel to the lake; one located in the ranges to the west and one located on the western lake margin. These areas will not be compromised during the exploration program. It is anticipated that these areas will be better delineated prior to ground disturbing works commencing in respect to drilling activities.
Further heritage clearance programs will be conducted with all relevant indigenous groups to ensure all areas of proposed activity are fully assessed for ethnographic or archaeological sites of significance. Work programs will be specifically limited to those areas that have prior clearance by all relevant indigenous groups.
The KU Interim Management Committee met on 26 September 2009 and passed the following resolution:
That Straits Exploration should initiate negotiations for an Exploration agreement with the registered claim group, and that the agreement will form the rules about access to the land for mineral exploration by Straits. Straits under that Agreement must abide by any conditions relating to their proposed exploration as documented in any Report coming out of a heritage survey with representatives of the claim group.
Therefore, based on the above resolution Straits Exploration (Australia) Pty Ltd commenced the Part 9B process. The Part 9B was advertised in the SA Advertiser and Kurri Mail on 4 November 2009 with the arrangement for all Form 27 notices to be served on the relevant parties on the same day. At the time of writing, the Part 9B process was continuing.

103. These various forms of the Declarations of Environmental Factors represent to Government that heritage clearances were completed with the Kokatha – which plainly was never the case – that no significant heritage issues existed that would impede exploration – which was equally not the case. Nor do they reflect the changing dynamics outlined above.

The inquiry under s 63T

104. Ordinarily the exploration for minerals on land the subject of native title claims, is governed by sub-division P of the Native Title Act 1993 (Cth). Registration thereunder furnishes the critical “right to negotiate”. However s 43 thereof provides for an alternative law of a State once approved by the Commonwealth Minister, to apply in lieu of the Commonwealth regime. In the event of such approval, the State scheme applies instead of sub-division P. Part 9B of the Mining Act is a scheme so approved as an alternative State measure governing the "right to negotiate" in relation to minerals exploration in the State of South Australia.[120]
105. Although similar schemes exist in New South Wales and Queensland, there are no precedents flowing therefrom. The legislation has not been proclaimed in New South Wales. The Queensland version was considered in Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia[121] and on appeal in Queensland v Central Queensland Land Council Aboriginal Corporation.[122] Judged from what counsel said from the bar table, the Queensland version has fallen into disuse following those decisions. In the result the South Australian scheme is for practical purposes, unique.
106. A significant objective of the State scheme was the validation of “past Acts”, coupled with the due recognition of native title, as it is in the Commonwealth legislation. The Mining Act was originally enacted with the object of encouraging mining. That objective was established in 1971 well before concepts of native title were declared to from part of the Australian common law by the High Court in Mabo v The State of Queensland (No 2).[123] The mechanism chosen by Parliament to reconcile the objectives of encouraging exploration and mining and the due recognition of native title interests, was the enactment of Part 9B of the Mining Act, by the Mining (Native Title) Amendment Act no 43 of 1995. Part 9B of the Mining Act took effect from 17 June 1996.
107. On its proper construction Part 9B serves to qualify the rights of exploration “on native title land”. Despite the fact that heading to s 63F of the Mining Act “qualification of rights conferred by exploration authority” forms no part of the Act itself,[124] a moments reflection on the content thereof, demonstrates that it has precisely that effect. The “native title land” referred to in part 9B of the Mining Act refers to land in which “native title or right exist”, as s 6(1) of the Mining Act imports the definition contained in s 3(1) of the Native Title Act (SA). Most significantly s 63F(1) expressly does not confer a right to conduct mining operations.
108. The prerequisites to such operations are those delineated therein:

Part 9B—Native title land
Division 1—Exploration
63F—Qualification of rights conferred by exploration authority
(1) An exploration authority confers no right to carry out mining operations on native title land unless—
(a) the mining operations do not affect native title (ie they are not wholly or partly inconsistent with the continued existence, enjoyment or exercise of rights deriving from native title1); or
(b) a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title;2 or
(c) an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intended to apply in relation to the mining operations.3
(2) However, a person who holds an exploration authority that would, if land were not native title land, authorise mining operations on the land may acquire the right to carry out mining operations on the land (that affect native title) from an agreement or determination authorising the operations under this Part.
(3) An agreement or determination under this Part need not be related to a particular exploration authority.
(4) However, a mining operator’s right to carry on mining operations that affect native title is contingent on the existence of an exploration authority that would, if the land were not native title land, authorise the mining operator to carry out the mining operations on the land.
Notes –
1 Cf. Native Title Act 1993 (Cwth), section 227
2 A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of such a declaration is that the land ceases to be native title land.
3. Cf. Native Title Act (Cwth), section 24EB(1)(c).

109. It follows from these provisions that contingent rights to carryout mining operations only flow from an argument with the relevant “native title parties”: s 63F(2), or alternatively from a determination by the ERD Court authorising such operations under s 63J. Kelaray had neither when Straits embarked upon and completed drilling in late 2007 and early 2008, bringing Kelaray vicariously into breach of clause 1 to Schedule C of the Exploration Licence.

Making a determination

110. Attention can once again be redirected to the considerations relevant to determinations as directed by s 63T of the Mining Act. This provides:

63T—Criteria for making determination
(1) In making its determination, the ERD Court must take into account the following:
(a) the effect of the proposed mining operations on—
(i) native title in the land; and
(ii) the way of life, culture and traditions of any of the native title parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land in accordance with their traditions; and
(v) any area or site, on the land concerned, of particular significance to the native title parties in accordance with their traditions; and
(vi) the natural environment of the land concerned;
(b) any assessment of the effect of the proposed mining operations on the natural environment of the land concerned—
(i) made by a court or tribunal; or
(ii) made, or commissioned, by the Crown in any capacity or by a statutory authority;
(c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the land concerned;
(d) the economic or other significance of the proposed mining operations to Australia and to the State;
(e) any public interest in the mining operations proceeding;
(f) any other matter the ERD Court considers relevant.

111. Section 63T substantially reproduces s 39 of the Native Tile Act (Cth), with a few differences. To begin with s 63T is expressed in terms of “land”, as apposed to “land and waters”, as employed in ss 39(1)(iv) & (v) of the latter. The reason for this point of difference is easy enough to discern. It is not because waterways such as rivers, creeks, the sea or lakes are excluded from the operation of Part 9B, but simply because applications under the Mining Act are made with respect to the land on which proposed mining operations are sought to be carried out. That is to say “the land” specified in the notice under s 63M(2), whether it happens to include waters or not. Here the land so identified is the area of the exploration lease, only a small portion of which is proposed for exploration, part of which is of course over Lake Torrens.[125]
112. The specific matters to be addresses by the court under s 63T of the Mining Act, are those set out above. They are expressed conjunctively so they are cumulative, in the sense that the court must turn its mind to each one. Thereafter what weight each possesses relative to the others, is very much a question dependant on the facts of the particular case in hand. The legislature has not assigned any order of importance, ascending or descending, one to the other.[126] Thus whilst remaining vigilant to examine each prescribed consideration, its influence will be at large according to the proven facts and the evidence adduced.
113. It is also to be noticed as a matter of internal construction, that the criteria set out in s 63T(1)(a) & (b), are each controlled by the introductory words “the effect of the proposed mining operations on”, whereas those in ss 63T(c)-(f) are not so conditioned. Furthermore, some are confined to “the land concerned”, except for those spelled out in ss 63T(1)(a)(i), (iii), (d), (e) and (f). Another preliminary observation is that in many respects the s 63T criteria overlap, so that sub-sections 63T(1)(a)(i)–(v) and 63T(1)(c) are very much interrelated. Likewise questions related to the environment in ss 63T(1)(vi) and (1)(b) are likely to merge, as are questions of economic significance and the public interest: ss 63T(1)(d), & (e). Public interest remains relevant to the pursuit of mining operations, the protection of the environment and native title considerations. The ultimate question whether to make a declaration after giving effect to the statutory considerations, is discretionary, to be weighed on the whole of the evidence before the court: Western Australia v Thomas,[127] Western Desert Lands Aboriginal Corporation v Western Australia.[128]
114. The Native Title Tribunal in Western Australia v Thomas on behalf of Waljen People,[129] considered an analogous inquiry – as it then was - under s 39 of the Native Title Act 1993 (Cth):

We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned.
The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.
The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence. The need for, and the sources of, such evidence is discussed elsewhere in these reasons for decision under the heading "The nature of the Inquiry". We next discuss our understanding of what the criteria are.

The bulk of this passage was quoted with approval by a single judge of the Federal Court in Cheedy obh Yindjibarndi People v State of Western Australia.[130] With these preliminary observations in mind, it is now possible to consider the statutory criteria in their turn. It is the effect of the particular drilling operation proposed on the various matters set out, that must be taken into account.

The effect on native title in the land: s 63T(1)(a)(i)

No native title determination required

115. It is significant that this section varies from s 39(1)(a) of the Commonwealth Native Title Act, in as much as it speaks more specifically of the effect of future acts on “native title rights and interests’. The omission of the reference to “rights and interests” in s 63T(1)(a)(i), in the first instance reflects the fact that this court is in no position and lacks the jurisdiction in any case, to determine such rights and interests: Commonwealth of Australia v Clifton.[131] To express this in another way, the ERD Court is not to “engage in an anticipatory determination of the Kokatha Uwankara native title claim”.[132] In the second place the omission of those key words implicitly acknowledges that the ERD Court is embarking on a limited inquiry as to the effect of the proposed operations on “native title in the land”, as distinct from an inquiry as to given “registered native title rights and interests”, now required by s 39(1)(a)(i) of the Commonwealth legislation.
116. Thus s 63T(1)(a) anticipates a different process from that expected of a native title claim. Claims lodged under s 10 of the Native Title Act 1993 (Cth) seek binding determinations in rem, recognising and protecting native title. Section 13(1) thereof authorises the making of applications to the Federal Court for such determinations.[133] As observed already, s 81 invests in the Federal Court exclusive jurisdiction.[134] When it comes to final orders, s 94A requires determinations of native title, to detail the matters mentioned in s 225. Such determinations of native title rights and interests necessarily involve decisions as to the persons (or group of persons) holding such rights, the nature and extent and the relationship between the native title rights and interests, the extent of any other interests in the determination area, and whether those rights and interests are to the exclusion of all others. An inquiry under Part 9B of the Mining Act requires no such findings. So much is implicit under s 63T(2) which preserves “the operation of another law of .... The Commonwealth for the preservation or protection of areas or sites of particular significance to Aboriginal people”.
117. Hence it is obvious that this scheme of bringing a native title claim to fruition is very different to the process envisaged by Part 9B of the Mining Act. Here the court is not asked to determine disputes as to the membership, identify boundaries of claim areas, ascertain the nature and extent of the native title rights and interests at stake, inherent in determinations under the Commonwealth legislation: Commonwealth v Clifton,[135] and Western Australia v Stickland & Ors.[136] Rather it is a process akin to that pursuant to s 39 of the Commonwealth Native Title Act in its original form.
118. Support for this conclusion can be derived from the decision of the High Court in North Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland (Waanyi Case).[137] At issue was an application for a determination of native title to a parcel of land under the pre-1998 amendments to the Native Title Act (Cth). A Registrar formed the opinion the rigorous prima facie claim test was not satisfied, because native title was extinguished by pastoral leases conferring rights of exclusive possession. The President of the Tribunal was of the same opinion, a position upheld by a majority of the Full Court of the Federal Court.[138]
119. On appeal, the High Court held on the basis of the material submitted by the applicants, that the claim was fairly arguable and accordingly the Registrar should have accepted the application. The majority of five judges observed of this procedure:[139]

Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.
It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.

120. Their Honours continued later:[140]

The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s 63, yet they each formed an opinion adverse to the claim in reliance on the effect of the tenure history of the subject land. That involved the making of findings as to the tenure history and the application of an apprehended legal rule as to the effect of a pastoral lease on native title.
It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised [Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 413-414; [1979] AATA 179; 24 ALR 577 at 584-585}.
But the Act reserves to the Federal Court the jurisdiction, exclusive of the jurisdiction of all other courts except the High Court, to hear and determine opposed applications (ss 74, 81, 84). For that purpose, the Federal Court must make findings on issues of contested fact and, when the relevant legal rules are contested, declare the law on which the extinguishment of native title depends. If a presidential member directs the Registrar in purported exercise of the s 63(3) power not to accept an application, he deprives the applicant of the opportunity of having the claim judicially determined and, by his direction, effectively determines the application adversely to the applicant. Having regard to the jurisdiction conferred on the Federal Court by s 74, it is difficult to attribute to s 63 a construction which would authorise the administrative rejection of an application where, on the information in the application and the material accompanying it, the applicant's claim is fairly arguable.
To give a direction not to accept such an application upon findings of fact made after an adversarial contest on arguable questions of fact or law between persons who would be entitled to be parties if those questions were submitted for determination by the Federal Court and by reference to a legal rule declared by a presidential member after hearing contrary submissions that are fairly arguable is practically tantamount to a proleptic exercise of the jurisdiction of the Federal Court [See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 258-259, 268, 269].

121. It can be accepted then, as Mr Jacobi submitted, that the present inquiry does not invite the court to engage in a determination of native title as such. This follows from the above cases, and because there would be procedural unfairness to other interested parties not joined in the present proceedings, as well as procedural unfairness to the applicants, who could not be expected to have the means or the knowledge of the facts, the land owner or occupier might be better placed to know. As Mr Waters correctly pointed out in his closing submission, this court has not been favoured with more expansive evidence expected of a full-blown native title hearing. There is for instance no historical or anthropological material as to the situation prior to and immediately following European settlement, and there is hardly any evidence of occupation from that time onwards until around the early 1950s. There is no evidence of genealogical or kinship structures either.
122. At the end of the day it is necessary to apprehend so far as can be, the effect of the proposed mining operations on the claimed and the registered native title in the land, which are fairly open or arguable, according to the nature and extent of the evidence touching such matters adduced in this application. The fact and terms of registration by the National Native Title Tribunal serves in the first place to furnish the native title party standing in these proceedings and in the second to demonstrate they have credible or arguable claims for recognition and protection of their registered native title rights and interests: Commonwealth v Clifton,[141] The Lardils Peoples & Ors v State of Queensland & Ors.[142] The terms of the rights and interests asserted in the claim and those for which registration was granted, will also served to mark out the nature and scope of the potential native title in the land.
123. It is on this point that the applicant’s differ with the submission of the Attorney General. In effect they submit the inquiry is limited to the rights and interests recognised in the registration process.[143] The Attorney’s submission went a step further by suggesting this court was not bound by the registration decision and therefore “might find it relevant in determining whether there are within the meaning of Thomas (above), “credible native title rights and interests”, and that it might take into consideration “such others as it finds are relevant” and proceed “on the basis of the claimed native title rights both registered and to a lesser extent, unregistered”. The Attorney submitted the court should “give greater weight to registered rights and interests”.[144] The Kokatha support this wider view.
124. The applicants on the other hand contend the process of considering how the relevant native title rights will be affected by the proposed activity, should also encompass the legal consequences, for the enjoyment of claimed native title rights, of prior actions. Therefore questions of extinguishment or of the application of the “non-extinguishment principle”, are to be taken into account in determining the “effect” (if any) of the proposed action on the native title rights.
125. The Commonwealth Native Title Act was amended in 1998 with effect from 30 September, to provide for a native title claims to be assessed in the first instance by a Registrar of the National Native Title Tribunal under s 190B(6). This requires an applicant to satisfy the rigorous “prima facie” registration test, one of the essential planks of what was widely referred to at the time as the “ten point plan”. Having done so, the registered rights and interests form the boundary around the claimed native title rights and interests for the purpose of sub-division P of the Commonwealth Native Title Act, fundamentally because it is only those registered rights and interests that are capable of being considered in the context of the “right to negotiate” under s 190B. This provides:

If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).

126. Nevertheless it remains open to the Federal Court when determining what those rights and interests are, to go further than those recognised in the registration process. Nor does it automatically follow that the registered bundle of rights and interests necessarily apply over the entire area of the claim; that question will depend on the context of the evidence specifically with respect to the particular area in question: Western Desert Lands Aboriginal Corporation v Western Australia.[145]
127. The resulting task for this court is to consider the effect of the mining operation actually proposed by reference to the evidence adduced with respect to native title in the land: Western Australia v Thomas,[146] Australian Manganese Pty Ltd v Western Australia,[147] Western Desert Lands Aboriginal Corporation v Western Australia.[148] There is no presumption in favour of any one position. I accept greater weight is to be accorded to those interests gaining recognition by registration, but that wider claimed rights are not to be ignored, where there is credible evidence to support them.

Native title in the land

128. What then is the precise content of “native title in the land” to which s 63T(1) is directed?  Section 4 of the Native Title (South Australia) Act defines ‘native title’ primarily as:

4—Native title
(1) The expression native title means the communal, group or individual rights and interests of Aboriginal peoples in relation to land or waters where—
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples; and
(b) the Aboriginal peoples, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law; and
(d) the rights and interests have not been extinguished or have revived.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

The right to protect

129. The applicants emphasise that the Kokatha’s registered native title rights and interests exclude three of the critical rights claimed. By comparing the unregistered rights (1), and (2)(m) and (n) in the claimant application summary,[149] with those identified in the "Application Information and Extract from the Register of Native Title Claims",[150] the right to exclusive possession was not accepted, the very rights the Kokatha seek to exercise in relation to the proposed exploration. The National Native Title Registrar did however accept rights to maintain and protect sites and places of significance under traditional laws and customs.
130. Consequently it was contended that in the absence of an exercisable right to exclusive possession, there was an insufficient native title interest to exclude exploration activities. The authorities certainly establish the right to maintain and protect significant sites do not amount to a right of exclusion: Attorney-General (NT) v Ward,[151] Northern Territory v Alyawarr,[152] Sampi (Bardi and Jawi People) v Western Australia.[153] But on the other hand to analyse the question from the point of taxomony of possession to the exclusion of all others, invites attention to common law concepts “rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms”: Western Australia v Ward,[154] Griffiths v The Northern Territory.[155]
131. This court must take account of the extent to which native title rights and interests were recognised in the registration process and acknowledge that wider rights are pursued. To proceed to the step of finding such rights extend no further than that acknowledged by registration, would be to pre-empt the function of the Federal Court and widen the inquiry beyond its proper limits. It is sufficient to record for the present that it would be open to the Federal Court to accept an existing right of exclusive possession in the area around Crombie Ridge and Lake Torrens, on the basis of the limited evidence given in this proceeding. The content of that evidence is considered later.

Lake Torrens National Park

132. It was in this context that the applicants next contended the establishment of the Lake Torrens National Park, amounted to a category D past act within the meaning of s 232 of the Commonwealth Native Title Act. The park itself generally corresponds with the edges of Lake Torrens, excluding Andamooka Island. The Lake Torrens National Park was established by proclamation under s 28(1) of the National Parks and Wildlife Act 1972 (SA).[156] As a consequence the proclaimed area fell within the definition of a "reserve" within the meaning of s 5 thereof.
133. The applicants submit control and administration of the reserve was thereby conferred on the Minister under s 35, thus vesting title to the National Park in the Crown. This power extended to granting "a lease and licence entitling a person to rights of entry, use or occupation" in relation to the National Park. Day to day management was placed with the Director, subject to any directions of the Minister or the Chief Executive officer: s 36.
134. By way of declaration made concurrently with the proclamation of 19 December 1991 under the separate statutory authority of s 42(3) of the National Parks and Wildlife Act, power was further conferred on the Minister for Environment and Planning to approve the acquisition of rights of entry, prospecting exploration or mining in the National Park and conditions on which the Minister might approve the exercise of such rights of entry.
135. This dual act of proclamation and declaration, the applicants say, is wholly inconsistent with the continuation of any native title right to prohibit entry, prospecting, exploration and mining. This crystallised in the exercise of the Minster’s power by virtue of the consent given on 2 March 2010.[157] The situation serves to attract the operation of the “non-extinguishment principle”, so that as a consequence, the contention was that the native title rights to exclusive possession or to control access, are of no effect because of the subsequent validation of that past State act by s 32 of the Native Title Act (SA).
136. The necessity for validation of such past acts arose on account of acquisitions inconsistent with the Racial Discrimination Act 1975 (Cth).[158] Section 14 of the Commonwealth Native Title Act declared valid "past acts" attributable to the Commonwealth and s 19 permitted that States and Territories to make similar provision for the validation of acts attributable to the particular State or Territory. This was affected here by s 32 of the Native Title (South Australia) Act. Section 239 of the Commonwealth Native Title Act identifies acts "attributable" to the Commonwealth, a State or a Territory in terms that include the proclamation of National Parks.
137. By a process of elimination, if native title existed in Lake Torrens at the time the National Park was proclaimed, such proclamation can only be a "category D past act". This follows since ss 229 to 232 of the Commonwealth Native Title Act established four categories of past acts. Categories A to C cover particular kinds of acts that do not include the proclamation of the National Parks. In respect of category D past acts, s 15 of the Native Title Act (Cth) and ss 33-36 of the Native Title Act (SA) provide "the non-extinguishment principle applies". This principle originates in s 238 of the Commonwealth Native Title Act which provides so far as relevant:

NATIVE TITLE ACT 1993 - SECT 238
Non-extinguishment principle
Effect of references
(1) This section sets out the effect of a reference to the non-extinguishment principle applying to an act.
Native title not extinguished
(2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.
Rights and interests wholly ineffective
(3) In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.
Rights and interests partly ineffective
(4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

138. The inconsistency with the continuation of native title on the applicants’ case, resides in Ministerial power to control rights of entry, prospecting, exploration and mining. The Lake Torrens National Park was therefore said to be caught by s 238(4), in as much as it was inconsistent with the rights of exclusive possession and control claimed by the Kokatha. As a consequence “the native title continues to exist in its entirety, but the rights and interests have no effect ... to the extent of the inconsistency": s 238(4).[159] In that situation the argument advanced for the applicants concluded, any native title party rights “were suppressed’ or at least “rendered subordinate” by virtue of the operation of the non-extinguishment principle.
139. They rely in support of this contention on passages taken from the joint judgment in Western Australia v Ward, a case involving questions of extinguishment following the reservation of land pursuant to the Land Act 1933 (WA), said to be inconsistent with the rights of access to the land:[160]

[218] Reservation of land under the relevant Western Australian provisions inhibited the Crown's future action in relation to that land. The inhibition, however, was not, and could not be, absolute. As Windeyer J pointed out in Randwick Corp v Rutledge262, even if land were dedicated to a public purpose, it did not take the land outside the authority of the legislature. Moreover, under the Western Australian statutes, reserves, other than those dealt with by the Permanent Reserves Act 1899 (WA) and its legislative successor263, could be cancelled or the purpose of the reservation altered by executive act264. Even permanent reserves could be cancelled or the purpose of the reservation altered by statute. Further, as had been held in Williams v Attorney-General for New South Wales ("the Government House Case")265, the Crown appropriating lands to a particular purpose, without the creation of a trust, did not mean that the land became dedicated to that purpose, or that it could not later be used by the Crown for some other purpose.
[219] Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as "public utility", the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
[220] The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. The provisions of the Acts providing a penalty for "unlawful or unauthorised use or occupation" of lands (including "lands reserved for or dedicated to any public purpose")266 did not, on their proper construction, prohibit use or occupation by native title holders. It is, therefore, not right to say, as a proposition of universal application, as Western Australia submitted, that reserved lands could not lawfully be used except for the reserved purpose. The facts that the 1905 amendments to the Land Act 1898 permitted leasing of reserves not immediately required for their purpose267 or that in 1960 the Land Act 1933 was amended268 to permit leasing or licensing of certain kinds of reserve for depasturing stock require no different conclusion. Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive.
[221] The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the State Validation Act, extinguished native title rights and interests.

140. The difficulty facing the applicants here is the same as it was when questions of limited rights of exclusion were discussed. To advance too far down the road of extinguishment, partial or non-extinguishment, is to embark upon decision making relating to native title rights and interests, beyond the limits contemplated by Part 9B. As pointed out in an earlier passage Western Australia v Ward:[161]

[94] ... questions of extinguishment of native title cannot be answered without first identifying the rights and interests possessed under traditional laws and customs which it is said have been extinguished. There is much scope for error if the examination begins from the common law expression of those rights and interests. Especially is that so if a portmanteau expression used to translate those rights and interests ("possession, occupation, use and enjoyment ... to the exclusion of all others") is severed into its constituent parts and those parts are then treated as they would be in the description of some common law title to land.

141. There is an additional layer of complexity supporting that conclusion owing to s 47B of the Native Title Act (Cth) which if it applies, operates to disregard prior extinguishment by proclamations over vacant crown land. This is a large question exclusively for the Federal Court to adjudicate. The question of partial extinguishment would necessarily entail evidence of prior use, subsequent use and occupation as a dedicated National Park, an examination of the validity and affect of the proclamation and declaration under s 38 and 43 of the National Parks and Wildlife Act, none of which have been the subject of evidence or addressed in these proceedings. Furthermore, the question would require careful legal examination, in light of successive statutory reservations relating to Aborigines.[162]
142. It follows from this analysis, the fact that the Lake Torrens National Park was created and the nature of the uses and reservations thereunder, are relevant to this inquiry, whereas outstanding questions of extinguishment are not. Since the designated area of the park excluded Andamooka Island and hence Crombie Ridge, it should have no such effect so far as Target Zone 2 is concerned.

Bosworth Station Pastoral Lease 2211

143. The next issue calling for examination relates to similar issues of extinguishment attended upon Pastoral Lease no. 2211, first granted on 28 September 1962, to “Irwin Stanley Roy Greenfield of Bosworth Station”.[163] The lease originally due to expire on 27 September 2004, was extended for a period of 42 years from 7 March 1990 upon the repeal of the Pastoral Act 1936 (SA) and the commencement of the Pastoral Land Management and Conservation Act 1989 (SA). It was again extended on 10 July 1998 to 12 March 2040.
144. This pastoral lease covers the southern part of Andamooka Island, including almost all that lies in the south western corner of EL 4296. It was transferred to Douglas Maxwell Greenfield on 13 March 1984.[164] Greenfield’s activities are acknowledged in the Fitzpatrick and Wood report consequent upon the site survey of March 2006,[165] as it was in the evidence of Andrew Starkey.[166] As the lease does not extend into Lake Torrens, it has the capacity to impinge the area of target zone 2 near Crombie Ridge alone.
145. Here the applicants contend that so much of Andamooka Island covered by the pastoral lease of 1962 that lies within EL 4296, affected all extant native title rights and interests. No question of invalidity arises in relation to this Pastoral Lease, as it predates the Racial Discrimination Act 1975 (Cth). It is not contended the lease wholly extinguished native title at the time of its grant or upon later variation, but it was contended there was partial extinguishment of native title rights and interests in reliance on observations made in De Rose v South Australia.[167] O’Loughlin J said an identical lease in that case:[168]

I am satisfied, from this review of the relevant authorities, that native title in respect of De Rose Hill Station has not been extinguished. On the other hand, the grants of the respective pastoral leases were inconsistent with the continued existence of the native title rights to control access to, and make decisions about, the claim area. Those rights were inconsistent with the rights of the Fullers to use the land for pastoral purposes: see Ward in the High Court at [417].

This conclusion was not challenged on appeal before the Full Court of the Federal Court.[169]

146. This submission suffers the same impediments as the earlier submissions relating to exclusivity and the creation of Lake Torrens National Park, for identical reasons, quite apart from statutory and leasehold reservations in favour of “Aborigines”. These are questions for the Federal Court to resolve. Once again the conclusion is inevitable that the granting of a pastoral lease over a portion of the land concerned and its subsequent uses, remain relevant to this inquiry, but questions of extinguishment, partial or otherwise, do not.

S39(1)(a)(i) the merits

147. Ultimately the applicants argued that whatever the content of the proven native title in the land was, the expectation of minimal disruption, interference and damage barely impinges them. The existence of Lake Torrens National Park and the past grant of the Boswell Station Pastoral so attest. As a consequence of the facts that a National Park, and a pastoral lease have pertained to the area for so long, the limited rights of access and control, the small area to be utilised at any given time, the methods to be adopted in minimising damage, the impact of the proposed activities on native title in the land, is very moderate if not miniscule according to Straits.
148. In any case it was further contended those activities will not serve to extinguish or otherwise impair any other native title rights exercisable in respect of the land and will not therefore in other than in the most superficial of ways, interfere with the exercise or enjoyment of those rights. The applicants will in any case upon due notice and within reasonable limits, accommodate the wishes of the Kokatha in relation to these relatively infrequent events.
149. The respondent on the other hand asks the court to make a determination that mining operations may not be conducted on the native title land pursuant to s 63S(2)(a). Lake Torrens represents such an important entity in Kokatha and Western Desert Tjukurpa, and the proposed mining operation is a fundamental breach of Kokatha law.
150. An appreciation of the force of the potential native title in the land to the Kokatha, must commence with a recognition of the intention of native title legislation:[170]

to rectify the consequences of past injustices” to Aboriginal and Torres Strait Islander people and to “ensure ... [they] ... receive the full recognition ... [of] ... their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire

This aspiration is no doubt attributable to the false legal basis “for the dispossession of the Aboriginal peoples of most of their traditional lands”: Mabo v The State of Queensland (No 2),[171] to the point of extinction in many cases: Members of the Yorta Yorta Aboriginal Community v State of Victoria.[172]

151. The analysis must also recognise that native title has its “origin in pre-sovereignty law and customs, not rights or interests which are a creature of ...” native title legislation: Members of the Yorta Yorta Aboriginal Community v Victoria.[173] Such laws and customs are rooted in and “reflect connection with the land”: Yanner v Eaton,[174] seen by the traditional landholders spiritually “rather than a bundle of rights”: R v Toohey & Anor; ex parte Meneling Station Pty Ltd & Ors.[175]
152. Hence the content of native title in the land is not necessarily neatly or easily divisible into discrete mutually exclusive rights and interests, such the rights of exclusive possession or of exclusion. They are far more prosaic and diffuse as recognised in Yanner v Eaton:[176]

[38] Native title rights and interests must be understood as what has been called "a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right". And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, "You may not hunt or fish without a permit", does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.

153. The Western Desert Bloc is recognised in Australian jurisprudence as a particular society acknowledging and observing native title laws and customs: De Rose (No 2) v South Australia (No 2).[177]
154. There is a sound credible and acceptable body of evidence presented in the course of this application to the effect that Lake Torrens (including Andamooka Island) is highly significant to the Kokatha and that this is acknowledged by the wider Western Desert communities, particularly their Yankunytjatjara neighbours. It was incidentally, principally the Yankunytjatjara who were responsible for bringing the De Rose Hill claim.
155. The subject area here is closely associated with dreaming stories (the Tjukurpa). Specifically it involves a closely guarded and dangerous form of senior initiated mens’ law, the Wati Wilyaru Tjukurpa. The cultural significance of Lake Torrens is noted in reports by Dr Willis in 1995 and 1996.[178] Its attributes include the fact that according to the Kokatha laws and custom only senior Wati may go onto the lake, as it is an historical entity of major significance to them.[179] Their opposition to exploration lies much deeper than antipathy to mining, for they have approved of mining operations in other areas in the past.[180] In point of fact the opposition runs much deeper than compensation, or money, which they do not see “as the issue”, or jobs for their people for that matter.[181]
156. The Kokatha witnesses regarded the particular areas of the Lake in the vicinity of the proposed drill sites as the most important and sacred of places in the whole of their country.[182] The effect of mining operations such as those proposed, strike at the heart of Kokatha beliefs and cut deep into their religious and spiritual beliefs.
157. The exploration then will result in significant physical, spiritual and cultural consequences. Those consequences are potentially dire for the senior Wati entrusted with the care and protection of the Lake. The evidence as to these is noted later in these reasons. As demonstrated earlier, native title comprises much more than simply concrete rights and interests in land. The courts have recognised the central importance of spiritual, cultural and social connection with the land, as in Western Australia v Ward:[183]

... inherent difficulty of expressing a relationship between a community or a group of Aboriginal people and the land in terms of rights and interest ... [and] ... the inevitable tending to think of rights and interests in relation to the land only in terms familiar to the common lawyer.

158. Their Honours continued with this theme later in their joint judgment:

[95] Further, recognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one-dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of ``bundle of rights'' which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

159. Kirby J expressed a similar view (footnotes omitted):

[578] The issue of connection must be considered in the light of Aboriginal tradition and the development of the law of native title. To date, the phrase ``in relation to'' has not been the subject of much elucidation in native title decisions. Nor has it presented any difficulty to claimants. This may be explained by the fact that, so far, the native title rights claimed have generally related physically to land or waters in a manner analogous to common law property concepts. Thus, there has been little need to elaborate the well-established principle that native title is sui generis and should not be restricted to rights with precise common law equivalents. This principle has been accepted in Australia and in other jurisdictions. However, an occasion now arises for its application.

160. This is not so much a situation of the interruption of use and enjoyment of land in the physical sense standing alone. It also involves the severance of the traditional way of life and of interruption to the development of social and cultural structures of significance in the land to the Kokatha. For this reason these aspects will be considered again later as they arise under s 63T(1)(a)(ii),(iii),(vi) and (1)(c).
161. The proposed mining activities by and large, make use of existing infrastructure, specifically the access track and the Western Mining Camp. The campsite is on the western edge of Lake Torrens immediately to the north of Crombie Ridge. Physical interference is involved to the extent of seven proposed target zones, having a radius of 500 m each (each drill being 30mç), to be drilled one after the other, commencing with target zone 2 near the most sensitive area of all, Crombie Ridge. Drilling will be continuous, in two shifts over 24 hours, three workers per shift, “ferried” to the drill location by helicopter from the campsite.[184] The camp itself is capable of accommodating up to 19 people. At any one time there will be at least 13 permanent employees based there.
162. Mrs Jones confirmed that each hole would take up to four weeks to reach the target depth of 1,200 m. Up to 70 holes are possible, so that the entire program could in theory continue for upwards of five years. However it stands to reason that it is unlikely all will be sunk, as either early results will be prospective or they will not.[185] No point was taken that rehabilitation would be other than adequate, as far as the physical side of things go.
163. In the result the proposed drilling will have an effect on the native title in the land to the extent that it will remove the capacity of the Kokatha to confine access and use of the land to those qualified according to their customary laws, compromise their capacity to enjoy and practice in privacy their spiritual beliefs and ceremonies thereon at will, for as little as possibly a year and as much as five. This is because the drill holes themselves constitute a fundamental irretrievable violation of the combined Wati Wilyaru Tjukurpa.[186]
164. By the same token the extensive efforts to minimise damage, to offset rehabilitation and restore the landscape, together with Straits’ intention to co-operate with the Kokatha on access, the comparatively small area in question and accepting that the Kokatha retain access to enjoy ceremonial activities on this site of importance to them, the conclusion is inevitable that the impingement in the physical and practical sense on their native title to the land will be more than of nuisance value. It does however impinge the capacity to exclude others from the most significant of sites. The effect of the proposed mining operations in the spiritual sense is on the other hand, quite dramatic. What effect these activities will have in relation to the remaining s 63T(1) indicia, is a matter to be considered later.

The effect on the way of life, culture and traditions: s 63T(1)(a)(ii)

165. This second consideration potentially impinges both the Kokatha Uwankara and the intervening party, and to an extent the wider Western Desert people. As in the instance of the first statutory consideration, the case for the applicants hinges on minimal effect upon the traditional way of life. The focus of the evidence for the respondent was directed towards the anticipated effects of the proposed activities on the ceremonial life, culture and traditions of senior Western Desert Wati, more so than on such things as hunting, camping and the like.
166. The oral evidence of the Kokatha men was that the consequence of the Straits proposal would be dire indeed, because what is at stake is a breach of the most fundamental laws and a breach of their obligation to uphold and protect the observance of those laws.[187] Such consequences impact on environment, peoples’ health, their ancestors and entail tribal punishments from chastisement, shaming and other serious physical consequences.[188] Quite specific examples were given of such consequences actually materialising in the past and the present, as a direct result of mining activities on Lake Torrens.[189] This evidence was supported to an extent that they were able to speak on such topics, by Professor Thomas[190] and in the concurrent evidence given by Mr Baker and Mr Mungkari.[191]
167. The evidence of Dr Willis on these subjects has to be approached, bearing in mind the limitations mentioned earlier. Nevertheless it is important from an anthropological point of view that the evidence given by the Kokatha men is wholly consistent with Western Desert laws and customs and that consequences of the kind they spoke form part of that law, and have in fact been carried into effect when damage occurs to important sites.[192] It is important in this context to recognise that Dr Willis was wearing two hats, one as an anthropologist and one as a witness to admissible original evidence of events of that kind. The latter consisted in the main of first hand experience of tribal punishment extracted because country was not duly protected.[193]
168. Moreover in some respects Dr Willis was uniquely placed, because of that first hand experience, and because as an anthropologist he was less constrained than the Kokatha watis, from opening up about them.[194] Justice O’Loughlin held a similar view in the particular circumstances of the evidence he heard from Dr Wills in De Rose v State of South Australia:[195]

[334] Dr Willis is a Wati Pulka, a senior man who was initiated into Pitjantjatjara/Yankunytjatjara restricted men's ceremonial Law near the Docker River community in 1991. He has, since initiation, participated in several significant Anangu ceremonies. He therefore has a rather unique perspective; he is an initiated Anangu who has risen to become a Wati Pulka, and he is also a highly qualified anthropologist. I accept Dr Willis as an anthropological expert uniquely qualified to comment on the traditional laws and customs of the Western Desert region.

169. All the same as indicated earlier, his evidence must be assessed (as Justice O’Loughlin assessed it at [343]) against the background of his total experiences of the subject area as detailed earlier, and that whatever his level of personal knowledge, it remains “essentially, for the [respondents] themselves to establish on the basis of their evidence.” These comments hold good in this instance even though his Honour was overruled on the questions of abandonment and whether the applicants continued to form a cohesive social group or community in De Rose (No 2) v State of South Australia.[196] The Full Court accepted the qualifications of Dr Willis as detailed by the trial judge in the passage quoted above.[197]
170. According to the applicants the relevant consequences are both uncertain, and undevastating. The reasons advanced for this conclusion, were in sum that:[198]
     • the Kokatha were not a single homogenous group composed solely of Kokatha people;
     • strong discontent expressed by people who identify as Kokatha, namely Mark McKenzie (a Kokatha Uwankara applicant), Daniel Clifton (one of two former Kokatha applicants), Michael Starkey (on account of his failure to object to drilling by BHP in 2007);
     • the lack of evidence from the broader membership comprising 300-400 people, as to the effect of the proposed activities on that wider population;
     • locations of the greatest significance, such as either side of or near Crombie Ridge, further to the west at Wilyaru Lagoon, Eucoloo and Whisky Swamp, or to places in Western Desert country outside the claim area, need not or will not be affected; ceremonies have continued in spite of the presence of a Western Mining Corporation camp dating from the 1970s;
     • inconsistency in the current stance that any drilling is out of the question with their position during negotiations for the draft Part 9B agreement;
     • the nature and extent of past drilling operations on or about the subject area and the other mine and towns established on the Kokatha claim area.
171. The submission as to the supposed shallow nature of the evidence overlooks the fact that the Starkey brothers are Nguraritja for the precise parcel of land concerned. The evidence was that out of a total of about twenty Kokatha watis, it was these particular men who were authorised to speak for this country.[199] To the extent that there are a few claimants not originally of the Kokatha, they have inherited rights of recognition because of marriage to or had a discernable connection with Kokatha persons, or were accommodated in order to facilitate a consent determination.[200]
172. The submission as to remaining sites of significance underestimates the importance of the special site in the land concerned and fails to appreciate the interconnectedness of sites along the dreaming tracks. The supposed dissent is already explained in the earlier analysis of the consultation process and Straits responses. No store can be placed on the exchanges in the Part 9B process, because these are compulsive rather than voluntary and all that the Kokatha presented was a draft pro-forma agreement.[201] Nor was the “less than emphatic” attitude of Mr Baker and Mr Kungkari (if that is what it was) of any consequence, as they were not authorised to speak for this particular country. It is only to be expected that they would be deferential to those who were.
173. Not much store can be placed either, on previous drilling in and about the subject area. There is practically no evidence of any consents from native title interests for those activities to have taken place. The respondent’s evidence was that at those earlier times, they had no “rights” to prevent it, which is true enough. This much was conceded by the applicants.[202]
174. The supposed failure to protest BHP drilling in early 2008 is a bit of a mystery. The respondent’s gave evidence that this was remedial. Subpoenaed documents from the Department of Primary Industries tendered on the last day evidence was taken, demonstrate three drill holes were sunk to depths of between 546.3 m and 891.3 m on 26 January, and 3 and 13 February 2008.[203] This was within the same time frame as Straits’ drilling. One of the BHP holes was positioned more or less centrally on Andamooka Island just south of the vermin proof fence marked on Exhibit R3. The other two were just to the north, nearer to the western most shore of the Island. All three were to the West of EL 4296 and so far as can be imperfectly judged from scales on the maps before the court, the closest these came to the proposed area was roughly 5 km, if not more.
175. Michael Starkey was confronted under cross-examination with drilling on Lake Torrens in 2007 rather than 2008. He only noticed the drilling by Straits at that time.[204] When taxed with drilling by BHP he was obviously surprised, retorting that he saw no drilling, only “recapping”.[205] Whatever the provenance of the subpoenaed material, it is certainly not demonstrated there was any exploration during 2007 other than by Straits, to which there has been stringent opposition, going back to 2000. That consistent stance was endorsed all but unanimously as recently as 14 August 2010 at a remarkably well attended meeting of a wide cross-section of the Kokatha community.[206]
176. As explained earlier the only way BHP – or anyone else for that matter – could have drilled in the area, was either under a valid Part 9A Mining Act agreement, or a determination by the ERD Court authorising same. No such Part 9B agreement is registered with the Department of Primary Industries and Resources (SA) and there was no authorising judicial determination.[207] So far as the evidence went, the Kokatha plainly held no knowledge of those operations, still less of any such agreement, so that the lawfulness or otherwise of BHP’s activities during 2008, is not apparent. For that reason it is simply not open to pay any regard to this issue in the untested, and wholly incomplete state of the evidence, as disturbing as it is.
177. Returning the inquiry then to the core of s 63T(1)(a)(ii), the drilling will have much more than superficial effects on the way of life, culture and traditions of the Kokatha. It is not to the point that the consequences actually materialise or not – the Kokatha genuinely believe these things will happen. In any case the so called “placebo” effect is well documented in Western science as it is amongst Aboriginal communities.[208] Likewise, whether past events have an actual causal connection with past mining activities in the area or not – and they do resonate a remarkable run of coincidences – is not to the point. The Kokatha genuinely believe it to be the position.
178. On the basis of all the evidence so far discussed under the rubric of s 63T(i) & (ii), it can only be concluded that the effect of the proposed mining operations on the spiritual life, culture and traditions of the Kokatha is not insubstantial. The strength of their culture and traditions in conjunction with this particular location, is far too important to permit any lesser conclusion.

The effects on the development of the social, cultural and economic structures: s 63T(1)(a)(iii)

179. This consideration is very much bound up with the first and second, although the additional aspect of developing structures is introduced. It is otherwise difficult to disentangle this criteria from the central importance of the area to the Kokatha. There is really no evidence directed to the specific topic of the potential effect on economic structures.
180. It may be acknowledged that Straits proposes to engage two Aboriginal employees on the project. In the scheme of things this is more than likely to become wholly counter-productive. For a start, given the depth of feeling about this area in the Kokatha community, re-affirmed quite recently, it could not be expected any Aboriginal person with ties to the Kokatha would accept such employ - it would simply cause two much disharmony and tension. Any other Aboriginal person is also unlikely to accept work on the site out of deference and respect to the traditional owners. Even if they did, this is very likely to engender anger and conflict.
181. At one point during his evidence Robert Starkey suggested the right to hunt and teach hunting skills could be affected, because kangaroos and emus might be frightened away from the "mine site".[209] That however would only be a minor inconvenience at worst. Wild game is unlikely to stray too far and would more than likely remain well within the boundaries of the claim area. Although it was apparent that certain types of game were more prevalent at some places rather than others, these were at different places.[210]
182. The other question posed by s 63T(1(a)(iii) is that of development. The social, cultural and economic structures, embraced by the Tjukurpa are ultimately bound up in the land on and around Lake Torrens. The Kokatha see themselves as fundamentally obligated to protect important sites such as Lake Torrens and to develop their traditional way of life in the face of change, by continuing to hold ceremonies in the area. The ability to preserve their culture and pass it on to their children, generation after generation, was seriously impacted by previous drilling operations and exploration. They were powerless to interfere at those times. They now have a voice through legislation – especially Part 9B of the Mining Act - empowering them to take positive action to protect sites, and culture, that they did not previously historically enjoy. The inability or failure to protect the proposed site area near Crombie Ridge would have an appreciable negative effect on their capacity to protect, nurture and develop these traditional structures, and pass their traditional way of life onto later generations.
183. Improvements to the track permitting access to Andamooka Island will only serve to enhance the chances of strangers coming into the area, which is taboo to anyone other than senior initiated Kokatha men. Because of the permanent presence of Straits employees in the area, there is also likely to be some interaction with the Kokatha. However this is manageable because of the conditions proposed by Straits, providing they are tightened somewhat, as proposed later.

The effect on the freedom of access, to carry out rites and ceremonies: s 63T(1)(iv)

184. The considerations just mentioned, are equally relevant here. However it cannot be accepted that the freedom of access by the Kokatha or other Western Desert people was already appreciably compromised or inhibited by the proclamation of Lake Torrens National Park and the declaration of the power of the Minster for Environment and Planning to approve access, prospecting, exploration and mining, and/or by the grant of the Pastoral Lease, Bosworth Station. Precious little evidence was directed to those subjects.
185. There is simply no evidence what effect either of these past acts had on the area. Furthermore right of access was largely preserved by relevant statutory reservations.
186. First are those in the National Parks and Wildlife Act 1972:

Division 2—Hunting and food gathering by Aboriginal persons
68C—Interpretation
(2) This Division does not apply to the taking of—
(a) an animal, or the eggs of an animal, of a prescribed species or a plant of a prescribed species; or
(b) an animal, egg or plant by a prescribed means or in prescribed circumstances.
68D—Hunting and food gathering by Aboriginal persons
(1) It is not illegal by virtue of section 47(1) or (2) for an Aboriginal person to take a native plant in pursuance of this Division from land that is not a reserve or a wilderness protection area or wilderness protection zone.
(2) It is not illegal by virtue of section 51 for an Aboriginal person to take a protected animal, or the eggs of a protected animal, in pursuance of this Division from land that is not a reserve or a wilderness protection area or wilderness protection zone.
(3) It is not illegal by virtue of section 47(1) for an Aboriginal person to take a native plant from a reserve (other than a co-managed park) or from a wilderness protection area or a wilderness protection zone in pursuance of this Division if the native plant is taken in accordance with a proclamation permitting the taking of the plant from the reserve or wilderness protection area or wilderness protection zone.
(4) It is not illegal by virtue of section 51 for an Aboriginal person to take a protected animal, or the eggs of a protected animal, from a reserve (other than a co-managed park) or from a wilderness protection area or a wilderness protection zone in pursuance of this Division if the animal or eggs are taken in accordance with a proclamation permitting the taking of the animal or eggs from the reserve or wilderness protection area or wilderness protection zone.
(5) The Governor may, by proclamation, vary or revoke a proclamation referred to in subsection (3) or (4).
(5a) It is not illegal by virtue of section 47(1) or 51 for an Aboriginal person who is a member of the relevant Aboriginal group to take a native plant, protected animal or the eggs of a protected animal in pursuance of this Division from a co-managed park if the native plant, protected animal or eggs are taken—
(a) if there is a co-management board for the park—in accordance with a permission granted by the board (which may be general or specific and conditional or unconditional); or
(b) in accordance with the provisions of the co-management agreement for the park.
(6) An animal, egg or plant is taken in pursuance of this Division if it is taken—
(a) for food for the person who takes it or for his or her dependants; or
(b) solely for cultural purposes of Aboriginal origin.
68E—Exemption from requirement to hold hunting permit
An Aboriginal person is not required to hold a permit under section 68A in relation to hunting if the animal hunted will be used—
(a) as food for the hunter or for his or her dependants; or
(b) solely for cultural purposes of Aboriginal origin.

187. Then those in the Pastoral Land Management and Conservation Act 1989 (SA):

Division 3—Public access
47—Rights of Aboriginal persons
(1) Despite this Act or any pastoral lease granted under this Act or the repealed Act, but subject to this section, an Aboriginal person may enter, travel across or stay on pastoral land for the purpose of following the traditional pursuits of the Aboriginal people.
(2) Subsection (1) does not give an Aboriginal person a right to camp—
(a) within a radius of one kilometre of any house, shed or other outbuilding on pastoral land; or
(b) within a radius of 500 metres of a dam or any other constructed stock watering point.
(3) An ILUA in force in relation to particular pastoral land may—
(a) confer a right to enter, travel across or stay on the land in addition to the rights conferred by subsection (1); or
(b) remove or qualify, or make any other provision in relation to, the rights conferred by subsection (1).
48—Right to travel across and camp on pastoral land
(1) Subject to this Act, a person may travel (by any means) or camp temporarily on a public access route.
(2) Subject to this Act and to the terms (if any) of an ILUA relating to public access and activities on the land in force in relation to the land, a person may, on giving oral or written notice to the lessee, travel across pastoral land (otherwise than on a public access route) by any means other than a motor vehicle, a horse or a camel and, in the course of so travelling, camp temporarily on the land.
(2a) A term of an ILUA may only limit a right conferred by subsection (2) to the extent reasonably necessary for the following purposes:
(a) restricting public access to places identified by the native title group as being places of cultural significance;
(b) preventing injury, damage or loss to any person that may arise from an activity undertaken under the ILUA or under section 47(1);
(c) protecting an activity of the native title group on pastoral land the subject of the ILUA.
(3) Subject to this Act, a person may, with the consent of the lessee or the Minister, travel across pastoral land (otherwise than on a public access route) by means of a motor vehicle, a horse or a camel and, in the course of so travelling, camp temporarily on the land.
(4) This section does not give a person the right to camp—
(a) within a radius of one kilometre of any house, shed or other outbuilding on the land; or
(b) within a radius of 500 metres of a dam or any other constructed stock watering point on the land.
(5) A person who proposes to travel across or camp on pastoral land in the manner referred to in subsection (3) must first seek the lessee's consent to the proposal and the lessee may refuse that consent if of the opinion that it is necessary to do so for the purposes of the safety of the public, the management of stock or the carrying out of rehabilitative work on the land or for any other good and sufficient reason.
(6) If the lessee refuses to consent to a proposal under subsection (5), the person may seek the Minister's consent to the proposal.
(7) The Minister may, without consulting the lessee, consent to the proposal but, if the Minister consents to the proposal without consulting the lessee, the proposal cannot be carried out until the Minister has notified the lessee that consent has been given.
(8) The Minister incurs no liability by virtue of giving consent to a proposal to travel across or camp on pastoral land.
(8a) A lessee must not give consent under subsection (5), or the Minister under subsection (7), to a proposal to travel across or camp on pastoral land in a manner referred to in subsection (3) if to do so would be inconsistent with the terms (if any) of an ILUA in force in relation to the land relating to public access and activities on the land.
(9) For the purposes of this section, camping is temporary if it is for a period not exceeding two weeks or, if some other greater or lesser period is prescribed in respect of a particular area, that period in relation to camping in that area.
(10) An authorised person may give to a person travelling across or camping on pastoral land the subject of an ILUA such directions as may be reasonably required for the purpose of giving effect to a term of an ILUA relating to one or more of the purposes referred to in subsection (2a).
(11) A person who, without lawful authority or reasonable excuse, fails to comply with a direction under subsection (10) is guilty of an offence.
Maximum penalty: $1 250.
(12) In this section—
authorised person means—
(a) the lessee of pastoral land the subject of the ILUA; or
(b) the native title group in relation to pastoral land the subject of the ILUA; or
(c) an employee of the lessee or other person acting on the authority of the lessee.
(13) In proceedings for an offence against this section, an allegation in the complaint that a person named in the complaint was on a specified date an authorised person in relation to specified pastoral land will be accepted, in the absence of proof to the contrary, as proof of the authorisation.

188. Superimposed on both these is s 37 of the Aboriginal Heritage Act: 

37—Preservation of right to act according to tradition
Nothing in this Act prevents Aboriginal people from doing anything in relation to Aboriginal sites, objects or remains in accordance with Aboriginal tradition.

189. Such reservations have their origin in the very foundation document establishing the Province of South Australia under the South Australian Colonisation Act 1834 (UK),[211] the Letters Patent of 19 February 1836. The Letters Patent contained this proviso:

... PROVIDED ALWAYS that nothing in those Our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives IN WITNESS whereof We have caused these out Letters to be made Patent ...

190. As O’Loughlin J pointed out in De Rose v State of South Australia,[212] the continuous “theme - of a reservation of rights” was perpetuated in successive legislation such as the Pastoral Act 1893 (SA), the Pastoral Act 1904 (SA) and the Pastoral Act 1936 (SA).
191. The evidence is that access will be excluded from the established accommodation camp and the operative drill rig site from time to time. The access track also happens to pass very close to the northern half of Crombie Ridge. But for those discrete areas, the Kokatha remain free to access the land to carry out rites, ceremonies or other activities of cultural significance, but not of course with the necessary privacy in areas adjacent thereto and especially near Crombie Ridge.
192. The fact remains however that access to the area is for practical purposes denied unless privacy is guaranteed. The necessary ceremonies infrequent or otherwise, cannot occur unless seclusion is guaranteed. Even if Straits were prepared to stop drilling whilst they occurred, it is not at all apparent the campsite would be cleared as well. Therefore the drilling operations will significantly impinge freedom of access to the most significant of all Kokatha sites, consequently compromising their capacity to carry out rites, ceremonies and other activities of cultural significance to them.

The effect on areas or sites of particular significance: s 63T(1)(v)

193. The focus of this part of s 63T is the “particular significance” of “any areas or site ... to a specific native title party”, the Kokatha in this instance. Judged from a subjective point of view, the area of Lake Torrens coupled with that part of Andamooka Island near Crombie Ridge, could hardly be of greater significance. The evidence as to this was noted earlier. It demonstrates this site is of much more than of special significance.
194. The fact that the applicants will not be undertaking any activities on the surface of Crombie Ridge itself, makes no difference to the Kokatha. The presence of and the very nature of the drilling operations and the consequent interference with the entity associated with this locale, will undoubtedly have a profound effect on them and the Watis who conduct ceremonies at the site, and who retain the responsibility under traditional law to protect it. Once again the evidence about this was discussed and noted earlier.
195. The expression “of particular significance’ appears of course in s 39(1)(v) of the Native title Act (Cth), in identical terms to s 63T(1)(v) and it appears again in s 237(b) of the former in the context of future acts attracting expedited procedures thereunder. It was this particular section that Carr J turned his attention in Cheinmora v Striker Resources NL; Dann v State of Western Australia:[213]

I have reached the conclusion that the Tribunal's construction of s237(b) is correct ie that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the Native Title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.

196. A consideration of this issue inherently entails making a judgment, in the manner discussed in, Western Australia v Thomas:[214]

a value judgment about whether, from the native title holder's point of view, the area or site is special or different from the other land in respect of which native title parties say they have native title rights and interests

197. Mr Hughston SC submitted more than once, that s 63T(1)(v) was a “free standing” or “stand alone” provision, having a force of its own. This I think, states the position too widely. To read it in that way could have the effect of erecting a right of veto, a right never intended: Re Koara People,[215] Australian Manganese Pty Ltd v Western Australia,[216] Western Desert Lands Aboriginal Corporation v Western Australia.[217] As already observed the section is limited by the introductory words “the effect of the proposed mining operation”. Otherwise its central import lies in the particular or special significance of the site or area to the native title party. In that sense it injects a partially subjective component into the overall s 63T(1) equation.
198. Counsel placed heavy reliance on the decision of the National Native Title Tribunal in Western Desert Lands Aboriginal Corporation (Jamukurnu - Yapalikunu)/Western Australia/ Holocene Pty Ltd.[218] That case involved similar legal issues, however the facts distinguish it from the present. The Tribunal faced an application to approve mining under s 39 of the Native title Act (Cth) in its present form. The Federal Court had already determined the native title rights and interests applicable to the land in question including, critically, “the right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others”. Here we have some registered and some prospective interests. Mining was not opposed as it is here. Money was the issue as it is decidedly not here.
199. The proposed mining was on the surface of Lake Disappointment by means of a brine collection trench, expected to be 5 m wide, to a depth of up to 3 m, so as to expose potash, for a distance of approximately 20 km. Here we have discreet drill holes in tightly confined areas. The estimated value was between $4.25 m and $5.45 m. Here we have a mine potentially of up to thirty years duration with arguably a best case value of many times more than that.
200. Despite these major differences there are some factual similarities. Lake Disappointment was considered on the evidence adduced, like the subject area, to be a dangerous place, one to be avoided. The presiding Member accepted there was “a very large area around the edge of the balance of the Lake where the activities will not in any practical way be affected”, and that as the subject area was quite small compared to the area over which the native title rights were held (3,758 km²), the effect on the infrequent exercise of the determined rights “will not be substantial”.[219]
201. As against that it was accepted that the Lake was “a very important place in Martu culture and tradition” having a “very high level of importance to” them.[220] The Tribunal concluded in respect of the equivalent section to s 63T(1)(v):

[149] However, the contemporary Martu view that mining on Lake Disappointment could be contemplated on acceptable terms does not mean that the Lake is not of great significance to them. Although it is not so sacred or dangerous that it needs to be avoided in all circumstances, the evidence overwhelmingly establishes it as an important place which is integrated into Martu culture and connection to country generally. It is the home of important spirit-beings. It has Dreaming stores related to it. It is part of Dreaming stories which extend to other lakes on Martu country. The surface of the Lake was traditionally dangerous and parts of it remain so. The evidence at Jigalong confirmed the evidence of the Martu Elders about its importance. The references to ngulu, Jukurrpa and the Dreaming associated with the Lake from these witnesses all confirm the significance of the site, as do the references in the Connection Report and Professor Tonkinson’s Statement. I am satisfied that Lake Disappointment not only formally falls within s 39(1)(a)(v) as a site of particular significance but that it is of very great significance to the Martu despite the contemporary qualification that mining on part of it could be contemplated on acceptable terms. 

For all practical purposes identical findings have already been made in this matter.

202. After acknowledging the disturbance to the area would eventually be reversed by rehabilitation and natural means – as is also the position here - the potential economic importance of the mine, that the public interest would be served by mining, the expenditure of a quarter of a million dollars by the miner and the failure of the parties to agree acceptable terms, the Tribunal proceeded to weight all the relevant considerations and refused to allow the mine to proceed.[221]
203. Of most moment to the present case was the observation that if the inquiry:[222]

... were confined only to a consideration of the effect of the act on native title rights and interests and other factors listed in s 39(1)(a) without the need to consider s 39(1)(a)(v), then a conclusion that the act may be done would be the likely outcome.

204. What appears to have swayed the Tribunal most was this:

[215] It is accepted that a native title party under the Act does not have a veto in the sense that they can say ‘no’ to a development proposal and have the Tribunal automatically accept that view no matter what the circumstances. However, they are entitled to say ‘no’ and to have the Tribunal give considerable weight to their view about the use of the land in the context of all the circumstances. In my view this is such a case.
[216] In my view the interests, proposals, opinions and wishes of the native title party in relation to the use of Lake Disappointment should be given greater weight than the potential economic benefit or public interest in the Project proceeding.

205. This decision is no more and no less one based on its own unique facts. The native title rights and interests were fully ascertained and the mine was arguably of far less importance than the potential of the Lake Torrens anomaly. As far as it goes, the decision in Western Desert Aboriginal Corporation v Western Australia does not support the conclusion that s 63T(1)(v) is freestanding. And yet it does emphasise that it is not necessarily of lesser importance, or is capable of carrying less weight than the other s 63T(1) criteria, simply because it is confined to a particular area or site of particular significance. That all depends on the nature and quality of the evidence adduced as to particular significance weighed according to the other evidence in the case as against all the other relevant matters. In this case it is a significant consideration, not as weighty as it was in Western Desert essentially because the potential of this mine is the greater.

The effect on the natural environment: s 63T(1)(vi)

206. The natural environment referred to at this point of the inquiry relates to the exploration lease itself – it is not confined to the drill sites. It may also embrace at least to a point, the wider area directly affected, the access road and the campsite being the most obvious examples: Kivi v Forestry Commission (NSW).[223]
207. As we have seen, taken in isolation the drill zones even in combination, literally have relatively small “footprints”, particularly in comparison to the size of the Lake, the National Park and the Kokatha claim area. To the extent there will be any physical damage to Lake Torrens, given the nature of the Lake (as a salt lake) and the proposed rehabilitation activities, damage will be minimal. It will "be aesthetically invisible after one medium wetting cycle (50 mm depth)". The area of the campsite itself is just 0.22m², but it is on the lake surface.
208. As demonstrated earlier, the effect of the proposed operations was assessed by an independent environmental expert, Mr Coleman, as being “sensitive to the environment” with “little or no biological impact on the Lake”. The chief attributes of Straits’ non-contentious proposal, are:
     • low impact exploration methods;
     • management programs or the maintenance and rehabilitation of the base to a high standard;
     • minimal or non-existent impact on wetland attributes; and
     • drilling pad impact on a salt lake crust most likely to become aesthetically invisible after one medium wetting cycle.
209. In their final written submission counsel for Straits emphasised the plethora of controls designed to minimise environmental impact and provide remedies when necessary. These include:
     • conditions of EL4296 itself subjecting Straits to ongoing monitoring by Primary Industries and Resources South Australia and the Department of Environment and Natural Resources, coupled with the requirement to submit an "Exploration Environmental Management Report" annually;
     • conditions imposed on Straits including compulsory "progressive rehabilitation", final rehabilitation subject to inspection by both Departments;
     • the plethora of Statutes governing every aspect of its activities.
210. Given the reports before the court, the only conclusion open is that providing Straits keeps to its undertakings, and absent accidents or unexpected contingencies, the effect of the drilling operations will ultimately have minimal impact on the natural environment in and about the Exploration Lease area.

The effect on the natural environment made by the court or other bodies: s 63T(1)(b)

211. There is no matter the court considers relevant to this particular section, apart from those raised with the parties during the course of the hearing and dealt with elsewhere in these reasons. There are certain other assessments that are potentially relevant however.
212. The first constitutes approvals by the Minister for Environment, Conservation Mineral Resources and Development as required by clause 17 of the Exploration Lease EL 4296. Such approvals require the production of a Declaration of Environmental Factors, portions of which were quoted above. These are designed (amongst other things) to identify sensitive sites and formulate processes to minimise the impact on those environmentally sensitive sites.
213. Straits’ current drilling program was approved by the relevant Minister under delegation. Therefore the proposed drilling program is one approved by “the Crown” within the meaning of s 63T(1)(b)(ii) of the Mining Act. Likewise Straits has approval under s 23 of the Aboriginal Heritage Act from the Minister for Aboriginal Affairs and Reconciliation, subject to the fate of the application for Judicial Review.
214. The Lake Torrens gravity anomaly is also considered by the Minister for Resources Development, The Hon Paul Holloway MLC, as being the “best undrilled Iron-Oxide-Copper-Gold target in the region”, ... “second only to the Olympic Dam anomaly prior to drilling”.[224] These Ministerial views are backed up by the provision of State funding to the extent of $80,000.00 to Straits for the purpose of exploration in the area.[225]
215. These approvals must be given due effect under s 63T(1)(b), bearing in mind that the respective Ministers (or the Minister’s delegate), exercise administrative discretions, according to specific statutory powers, and that those functions are not as wide, diverse or policy free as those exercised by the court in the s 63T(1) process.

The interests, proposals, opinions or wishes of native title parties in relation to management, use or control: s 63T(1)(c)

216. The evidence relating to this particular matter is detailed and discussed at various times earlier in these reasons. This criteria overlaps with the ss 63T(1)(a)(i)-(v) considerations and based on the evidence adduced, practically merges with s 63T(1)(v). The additional point to make is that the relevant opinions are not necessarily confined to “the effect of the proposed mining operations”.
217. Of particular influence here is the Kokatha’s long expressed opposition to mining on Lake Torrens, their oft repeated opposition to Straits since at least 2004, and the significant fact that “money is not the question”, hand-in-hand with the registration of a wide array of native title rights and interests, and to a much lesser extent that a consent determination is on the cards. These confirm they have a credible or arguable case. The fact that no amount of money and no job offers will buy their consent, is testament to the deep spiritual convictions held by the Kokatha. These combine to strengthen the weight to be attributed to the claimed interests, opinions and wishes expressed by them through their evidence in this case and in the numerous documentary materials before the court.
218. It is as well to summarise their expressions of opposition to mining:
     • August 2000 - the Kokatha advise Minotaur that exploration of Lake Torrens was not an option;[226]
     • 2003/2004 - unrefuted telephone conversation between Mr Eckermann and a solicitor for Straits joint ventures Argonaut Resources NL, that in view of “the significance of the Lake to senior men within Kokatha that there was likely to be strong opposition to any proposed exploration”;[227]
     • 05 May 2004 - Kuyani agreement with Kelaray notes “the Kokatha has excluded Lake Torrens and it’s surrounds from exploration;[228]
     • 2005 – an unrefuted conversation between Andrew Starkey and Mr Davidson of Straits, in which Mr Davidson said “Straits will not go ahead with any drilling until we have the agreement of all indigenous stake-holders”, when Starkey,[229]

... told him up front that the Lake was too significant to Kokatha people and that Straits was wasting their time and money trying to get permission from Kokatha to drill, because Kokatha would never allow drilling on Lake Torrens;

• 30 August 2005 - Barngarla work clearance with Straits records the traditional significance of Lake Torrens and recommends Crombie Ridge be excluded from all exploration activities;[230]
• 26 March 2006 - the Barngarla work area clearance “the lake and its shores is of major mythological significance decision to await consultation with Kuyani and Kokatha;[231]
• September 2006 – report to Straits recommends separate heritage surveys with each of the separate factions;[232]
• October 2006 - the heritage report prepared for Straits observing the reluctance of the Andamooka Land Council Aboriginal Corporation to conduct a heritage survey without the participation or endorsement of the KPC;[233]
• 14 September 2007 - the facsimile from the ALC to Straits making it clear the ALC did not speak for all the Kokatha, suggesting Straits follow up with Mr Eckermann the solicitor for the Kokatha and Dr Draper their anthropologist;[234]
• November 2007 - Barngarla survey recommending a meeting with the Kokatha and Kuyani Native Title Claimants, to be arranged by Straits, as previously recommended;[235]
• 9 December 2007 – on site Straits’ geologist Mr Phil Jones told by Andrew Starkey of the offensive nature of the drilling then going on; which was to stop immediately;[236]
• 20 December 2007 – the Draper report stating none of the drill sites were cleared and that drilling should stop immediately;[237]
• 25 July 2008 – Strong protest in the letter sent by Mr Eckermann;[238]
• 19 December 2009 – continuing strong opposition expressed at Aboriginal Affairs departmental meeting.[239]

219. Viewed collectively, these convey a clear, consistent, longstanding and explicable message of strong opposition to mining activities in the Lake Torrens vicinity, thus constituting relevant “proposals, opinions or wishes” of relevant native title parties. This consideration weighs significantly in favour of refusing the application.

The economic or other significance to Australia and the State: s 63T(1)(d)

220. This consideration is of very wide compass. The case for the applicants is that this project could result in a very large mine indeed. All the same the proposed act of drilling will of itself have little economic significance. It is the later acts of extracting minerals if it proved viable that would potentially have that effect. There is some economic benefit from the employment drilling will provide, the spin-off for local contractors and traders in the area, but that is all.
221. The significance of the current proposal on a State or National scale resides in the findings taken from the core samples obtained from recent drilling and whether the presence of valuable minerals is confirmed and what the likely quality and extent is. That is to say the potential significance is strategic. The wider potential for a larger mine further down the track is for that reason far more relevant when it comes to the public interest under s 63T(1)(e).
222. To appreciate the potential economic significance, one must consider the assessments of the significance of the “Lake Torrens gravity anomaly” itself. The applicants’ geophysicist considers it to be potentially "comparable in both amplitude and areal extent to Olympic Dam". If this proves to be the case following successful drilling, Straits assess the economic impacts as resulting in:
     • an average annual increase in gross State product of between $329-$452 m and $728-$1,015 m for between 17 and 37 years;
     • increases in gross State product between the 17 to 37 years of between $3.2 billion and $10.5 billion;
     • the generation across the life of the mine of between 1,496 and 4,880 full time jobs (an increase of between approximately 0.21% to 0.71% in the South Australian workforce).[240]
223. The general scale of these predicted economic benefits is not in dispute, on the premise of successful drilling. The core premise is where the differences of substance lie.
224. In addition Straits has by now spent nearly $5 m on the proposal, including in excess of $1.5 m on native title and land access issues. These sums will be sunk costs, should exploration fail to materialise. It has budgeted $4.5 m for the coming year to allow completion of the initial seven drill holes. The projected cost of each individual hole is therefore approximately $640,000. Should exploration extend to the maximum of 70 holes, the total expenditure is estimated at between $4.5 m and $45 m, although their counsel volunteered that Straits are unlikely to drill so many. The initial expenditure includes $2.5 m earmarked for immediate allocation to local contractors, service providers and consultants, and the employment of approximately 20 people in the first year, some of whom are already on the payroll.
225. At the outset the applicants emphasised the inquiry is confined to the proposed drilling program, and that it was irrelevant to take into account the fact that a large underground mine might eventuate.[241] The court was told that if mineral deposits are identified in the drilling stage and the mine proceeds, it will be a case of an underground mine below Lake Torrens, because of the sheer depth of the anomaly. Whilst it can be accepted the future prospects are largely irrelevant for the present, the prospect of mining hinges on the outcome of exploration, as Straits’ counsel conceded.[242] No doubt the spectre of large scale mining and the attendant infrastructure, partly fuels the concerns of the Kokatha. That is to be expected. The chances of successful mining is relevant in the sense that it informs the nature of the exploration in the first place, and colours the potential economic significance to the State, and it must follow, Nationally in the second.
226. There is no escaping that what is proposed is a project that will generate a few jobs, last more than likely for one or more years and involve expenditure of some $5 m more, or thereabouts. The figures put forward by the applicant mostly relate to economic benefits if the mine eventually goes ahead. These are relevant but would be vastly more so at the next stage, should they seek approvals to construct a mine. That would involve another Part 9B exercise of a far different order. The fact remains that as things stand the drilling operations will have very small economic significance for the State and virtually none Nationally, even bearing in mind that some mining may follow. The s 63T(1)(d) factor is thus of rather minor importance, but insofar as it is, it bears in favour of the proposal to explore.
227. A similar conclusion may be reached by another route. This involves an assessment of the chances of discovering metals worth mining. The applicants’ case is built around the evidence of Dr Morrison, detailed above. The highest output scenario is based on thirty years mining, the most likely on twenty years, with the lowest based on a ten year operation. These estimates in turn squarely depend on the rather large assumption contained in the Appendix 1 of his report that:

...further exploratory activity, including drilling, were to confirm the scale and nature of mineralisation which appears possible based on information available to date.

228. The respondent contends this is highly speculative, as well as unconfirmed by hard drilling returns to date. In fact a report of Mr Singer submitted by them, suggests the high scenario should be excluded as it does not appear to be commercially viable.[243] A responsive supplementary report from Dr Morrison,[244] revised the original estimates based on the assumptions referred to by him at paragraph 1.7, in terms of gross state product down from $679 m to $591 m (13%), average annual employment impact down from 3,240 jobs to 2,948 (9%). He acknowledged that estimating the profitability of each scenario was outside the scope of his brief.[245]
229. The submission for the Kokatha was that these predications wrongly assume “100% certainty” and in light of the real potential for the Lake Torrens anomaly to contain magnetite of no economic value at all, profitability and potential success is far from assured and in fact remains highly speculative at best.
230. In order to assess the true potential of this project it is necessary to examine the hard data as was presented to the court. The evidence of Mrs Jones was initially that the Lake Torrens anomaly was largely “undrilled”, that is to say as I understand it, largely untested.[246] There was extensive drilling on Lake Torrens and Andamooka Island in the past, not to mention the three holes sunk by BHP in January and February 2008, about which nothing is known and no results are produced.
231. Further details of the exploration involved in the past emerge from various papers before the court. The first is contained in a relinquishment report for the period 2 May 1965 to 16 June 1991, submitted by Western Mining Corporation to the Department of Primary Industries and Resources (SA):[247]

6.5 Torrens SS77-01
Most of the Torrens grid was relinquished in 1986 and the geophysical features and programs were described by Paterson and Muir (1986). A small area, where drilling had been carried out, was retained at that time, but is included in the area covered by this report. A single trial C.S.A.M,T, survey line (“line 1.”) was completed in the area.
The Torrens area covers a broad gravity high and associated complex magnetic highs lying predominantly beneath Lake Torrens, east of Andamooka Island. Three drills holes sited on prominent magnetic and gravity features intersected a series of tuffitic volcanics and/or volcanognic sediments overlaying in TD-2 by quartz-magnetite iron formation. The basement depth varied between 414m in TD-1 to 552m in TD-3. The iron formation and the occurrence of bands and veins of magnetite in the volcanoclastic rocks are sufficient to explain the magnetic and gravity anomalies.
Although some anomalous Cu, Pb and Zn was encountered, the levels and intervals involved were not considered particularly unusual for the host rocks involved. The logistic and technical difficulties of exploration of Lake Torrens, in particular with electrical geophysical methods, the depth of cover and likely target sizes are all factors which downgraded the area.
....
7. SUMMARY AND CONCLUSIONS
Targeting in specific areas covered by this report focused mainly on deposits of the Olympic Dam Type and exploration methodology has been based on the geophysical signatures of that ore body. The dominant approach has been to test near-coincident gravity and magnetic highs.
...
Very minor mineralisation observed in some drillholes was not considered to indicate proximity to deposits comparable to those at Olympic Dam. These factors and considerations of geological environment, depth of cover and exploration effectiveness led to downgrading of the area covered by this report.

Next there are the reports of three drill holes by Western Mining, two on the lake and one on Andamooka Island, between 1977 and 1982 in the vicinity of the Lake Torrens Anomaly. These were specifically designed: [248]

...to identify coincident magnetic and gravity anomaly, define their position on the ground, and select drill targets based on intersecting the source of the gravity anomaly.

232. The results are summarised in the Declaration of Environmental Factors of October 2010:[249]

1.2 Background and Previous Exploration Activity
The potential for a significant orebody to occur within EL4296 is evidenced by:

• a large magnetic and gravity feature, similar in size, scale and order tot hat reported from the nearby Olympic Dam mine prior to its discovery;
• previous drilling by Western Mining Corporation (WMC – 1977-1982) has intersected hydrothermally altered basement lithologies and weak copper mineralisation at approximately 500m depth;
• basement lithologies of the Stuart Shelf which comprise a magnetite-haematite altered breccia system in the Torrens area, similar to the host lithologies of the Olympic Dam orebody; and
• the location of the strong coincident gravity and magnetic feature, i.e. in the vicinity of the Carapateena copper-gold mineralised breccia system identified by Teck-Cominco.

The Torrens area was originally drilled by Western Mining Corporation (WMC) between 1977 and 1982, with three holes (TD1, TD2 and TD3) centred on the strongest magnetic anomalies (Figure 2). Drill hold TD2 intersected a metasomatic magnetite-quartz-haematite-Kfeldspar minor fluorite carbonate altered and weakly brecciated sequence with chalcopyrite and pyrite veining, located from the base of cover at approximately 500 m depth to the bottom of the hole at 881 m. The hole was highly anomalous in Copper (Cu), with a maximum of 0.65% Cu and two significant zones of low grade copper with trace to weak uranium values. Holes TD1 and TD3 also intersected magnetite-haematitie-Kfeldspar altered and metasomatised volacono-sedimentary units.

233. Western Mining proceeded no further and in fact relinquished the tenement altogether no doubt because the results were unpromising. They present a picture of logistical and technical difficulties and rather minor mineralisation too uneconomic to extract. When questioned under cross examination as to what motivated Straits to proceed in the face of these negative returns, Mrs Jones answered in this way:[250]
     17. So are you saying that Western Mining in fact didn’t drill into the Lake Torrens gravity anomaly.
     1. They didn't target the gravity anomaly; they targeted the magnetics, and these two types of anomalies are often coincident or semi-coincident.
     17. Well, here, they are coincident, aren't they.
     1. They are very close to coincident; they are not completely one on top of the other, but they are close.
     17. Almost right on top of the other.
     1. Mm.
     17. Western Mining in drilling its magnetic anomaly would have necessarily have also drilled that gravity anomaly, wouldn't it.
     1. The gravity anomaly has a number of different areas. When we are talking about the gravity anomaly as a whole, that is what people generally refer to as the 'Torrens anomaly', but when you drill down into that Torrens anomaly, there are a number of areas that are particularly strong, compared to the surrounding areas, and when you have a look at where Western Mining drilled their holes, they certainly didn't complete their holes into the strongest areas of the gravity anomaly because they weren't targeting the strongest areas of the gravity anomaly, they were targeting the strongest areas of the magnetic anomaly.
     17. Is there a reason why a miner would want to target the strongest areas of the magnetic anomaly, rather than the strongest areas of the gravity anomaly in carrying out exploration drilling.
     1. It wouldn't be my choice, but I wasn't the geologist on the ground at the time.
     17. So you can't think of any conceivable reason as to why a miner would choose to target, first, the magnetic anomaly, rather than the gravity.
     1. If one didn't understand how the two anomalies interplayed and what might be likely to be generating that magnetic response or that gravity response, you could probably mistakenly think that the magnetic response would be the one to drill. There has been 30 years of research and discovery with regards to how all of these things interplay since then and certainly, the thinking now is that you wouldn't target the magnetic anomaly as the first choice now; you would target the gravity anomaly.
234. And again later:[251]
     17. Western Mining were looking for exactly what you are looking for, weren't they.
     1. I understand they were looking for copper, yes.
     17. But they also were of the view, weren't they, that there may be something in that anomaly that would be as good as their Olympic Dam mine.
     1. I can't speak to that, I don't know what WMC were thinking at the time.
     17. They drilled - was it three holes.
     1. Yes.
     17. And came up with some trace copper, I think, in their results, is that right.
     1. Yes, they did.
     17. But nothing sufficient for them to want to expand the drilling operations any further.
     1. At the time the WMC were operating in a very large area around the Roxby Downs area. They completed an awful lot of regional drilling by comparison to any other previous exploration company that had been up there, and it appears that they decided that the concentration of their work should be focused around Roxby Downs and not other areas.
     17. They decided, didn't they, to actually surrender the tenement that covered Andamooka Island in the eastern portion of Lake Torrens.
     1. That's my understanding, yes.
     17. Because they simply didn't believe it was commercially viable to continue exploring for a resource in those areas.
     1. I don't remember that comment being made anywhere.
     17. You have as an attachment or an exhibit to your second affidavit at MJD12 a document submitted by Western Mining to the Department of Primary Industries and Resources in South Australia in 1991 and it's a second partial relinquishment report for the period 2 May '75 to 16 June '91, and that is for the Stuart Shelf Project, and that would include, would it not, the Torrens anomaly.
     1. Yes, it does.
     17. If we go to p.4, we have a summary of what is in this report and in the second paragraph, it says 'The discovery of copper, uranium and gold mineralization at Olympic Dam initiated a period of relatively intense exploration on the Stuart Shelf. The area held under EL had no drill holes intersecting the basement rocks prior to the WMC program, and they say the initial approach based on the obvious Olympic Dam model was to identify coincident magnetic and gravity anomalies'. Now, isn't that what your company has done as well, that based on that Olympic Dam model that you have identified coincident magnetic and gravity anomalies.
     1. The coincident gravity and magnetic anomalies were identified on our project prior to us being involved, but yes, that is what we're targeting.
     17. It's obvious, isn't it, that Western Mining knew all about coincident magnetic and gravity anomalies; they were interested in both and, in particular, when they were coincident, as they are here.
     1. Mm-hmm.
     17. They go on to say 'Magnetic and gravity anomalies define their position on the ground and select drill targets based on intersecting the source of the gravity anomaly', and that is what you were discussing earlier today.
     1. That's right.
     17. But it's in the area where the two are coincident, the gravity plus the magnetic.
     1. Yes.
     17. And electrical techniques are used later in the program to refine the drill site selection process. It is pretty clear, isn't it, that even back then, Western Mining had a similar interest in that Torrens anomaly to what Straits does today, and were doing their best to explore the anomaly to see whether it was commercially viable.
     1. With the information that they had available at the time.
     17. And that information was such that they chose to drill right on Andamooka Island and to the east of Andamooka Island in the lake.
     1. Based on the magnetic anomalies at the time.
235. The fresh geophysical data relied upon, underlying Straits’ expectations of further drilling success, was that obtained from the drilling between October 2007 and February 2008:[252]

Since granting, ground disturbing activities within the tenement (drilling as approved under Phase 1 Andamooka Island activities) were achieved for a five month window only (October 2007 to February 2008.) Following the commencement of drilling activities, Straits became aware of the recording of an Aboriginal Site (Recorded Site 6436-7237) over the entire lake area and including 500 m into the hinterland (to total area in excess of 6,400 km²). Drilling activities ceased on 25 February 2008 because of the Recorded Site which, following amendment in May 2008, covered the entire tenement area. Since that time, Straits has been in discussions with the Native Title claimant groups and various Government departments to regain access to the tenement and continue its PIRSA and DENR approved exploration activities.
.....
Drilling on TD4 commenced late 31 October 2007, and was completed on 3 December 2007 for 1198 m. Initial results were very encouraging with significant IOCG style alteration intersected, along with low grade copper mineralisation. TD4 was expected to lift by up to 20, but it had remained straight. Further investigation showed that it was possible that TD4 had skimmed down the southern edge of the target body, and it was decided to complete a wedge off of TD4 to the north to obtain a full cross section of the target body.
TD5 commenced on 3 December 2007 at 513 m down TD4. Drilling for TD5 was completed at 1183 m on 21 January 2008. Encouragingly again, consistent IOCG style mineralisation and alteration was reported from the hole.
Drill hole TD6 was commenced on 29 January 2008 and completed on 25 February 2008. Alteration reported from TD6 was not as strong or consistent as TD4/5, but was still of IOCG style.

236. Stripped to its essentials, all that has been revealed is that earlier results were hardly promising, whereas the recent results “were very encouraging”, without more. The raw data underpinning this conclusion is not self evident. No analysis of the core samples were referred to by Dr Hanneson, so that his opinion is of value only to the extent that the underlying facts on which it is have been proved: Paric v John Holland (Constructions) Pty Ltd.[253] It has not been possible for the respondent to analyse the worth of such predictions for the very reason that there is no such proof. That also means the court cannot make an informed assessment of worth of the “encouraging results”, because the evidence supporting that conclusion, is not available to it. It is accordingly near impossible to measure the potential National or State dimensions of this project, longer term. Hence the conclusion that the economic or other significance to South Australia or to the Nation, is presently rather slight.

The public interest in proceeding: s 63T(1)(e)

237. Here we are concerned with considerations wider than simply economic. It is clearly in the public interest to develop and exploit mineral resources given the policy of the Mining Act before the enactment of Part 9B and especially in the current economic climate. A viable, functioning and productive mining industry depends on exploration, so there is usually always a public interest in granting mining leases for exploration purposes. That is the case here.
238. It is equally in the public interest to “preserve” prospective native title in land, and to preserve the “status quo” pending resolution of the native title claim, to borrow expressions used by the High Court in Waanyi, quoted above. This conclusion is further reinforced by the right to negotiate process in general as well as that mandated by Part 9B itself, premised as they are on negotiations with respect to the future acts of mining.
239. The reference to Ministerial support and approvals, the Government’s plans for accelerating exploration and the money it has contributed, are relevant manifestations of public interest. Given the size of the Lake Torrens gravity anomaly – that is speaking quantitatively - there is clearly a not insubstantial public interest in testing and assessing the potential, even though quantitatively speaking, there is little to go on at present. As against that there is a substantial public interest in protecting the Kokatha culture and interests by preventing undue intrusions upon their capacity to practice in peace their law and ceremonies on a site most sacred to them. These two opposed aspirations are more or less even, but on balance lean marginally in favour of mining.

Other matters the ERD Court considers relevant: s63T(1)(f)

240. This section formalises a very wide residual discretion. Even so any remaining “matter” must be relevant to the s 63T process in a tangible or discernable way. Conversely it would be wrong to take into account extraneous, or unconnected considerations, or factors too hypothetical to carry any weight. The commitment of the applicants measured by risking substantial funds is one relevant consideration. Leaving an intriguing geological phenomenon an untested mystery, is another.
241. Other issues agitated under the rubric of this “catch-all” provision were the conduct of the parties, compliance with legal obligations, and the degree of due performance with agreements or undertakings as between them in the past. The applicants assert the Kokatha interests are sufficiently protected by current Supreme Court proceedings seeking judicial review of Ministerial approval, and the capacity to pursue rights and remedies under ss 9 & 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). These options are largely beside the point. To reason that such avenues of redress suffice, is to abdicate jurisdiction under Part 9B. The same comments apply equally to the plethora of other statutes said to control the activities of Straits.[254] There has been no evidence led of any action taken against Kelaray in spite of the breach of the Exploration Licence requiring it to comply with Part 9B.
242. The Kokatha complain that the applicants breached the law by drilling on this important site without their consent, and that their wishes were accorded precious little consideration. Counsel agitated a number of points, chief amongst them the opposition of other Western Desert people to the proposed drilling, Straits untrustworthiness and the lack of consideration for indigenous people.
243. Before returning to these complaints, there were several other points made by Mr Hughston and Mr Evans that can be first disposed of. They were critical of Straits for their direct approach to the Minister to obtain approval to “damage, disturb and interfere with” Aboriginal sites, objects and remains, instead of allowing the native title proceeding or the negotiation process to run its course. It can be accepted that this course might be seen by the Kokatha as effectively by-passing the cherished right to negotiate, and to pre-empt full native title determinations by the Federal Court. But if that is an option open to the applicants under the law, they are entitled to pursue it.
244. Secondly respondent’s counsel pointed to Straits hypercritical opposition to orders sought with respect to confidential gender restricted evidence, whilst at the same time insisting their own commercial records be treated with the “utmost confidentiality and secrecy”. Whatever the content of the private discussions between the parties was, so far as the court is concerned Straits co-operated, indeed consented to making appropriate orders. Its counsel was duly respectful in handling sensitive evidence. As a matter of record, the criticism cannot be accepted.
245. Thirdly they caste suspicion on the amount of money paid to Daniel Clifton under a specific agreement for site clearances, which was certainly above the norm - $1,000 per day instead of the “going rate” of $350. However this was clarified in the re-examination of Mr Calvin to the effect that an extra allowance was made for him as compensation for loss of earnings from his trucking business, which remained idle when site clearances involving him were underway.[255] This was not again pursued or contradicted by the respondent, so this criticism is not made good either.
246. Have clarified these issues it is now possible to return to the more substantial points made on behalf of the respondent. These distil essentially into four broad categories:

(1) drilling was always subject to Part 9B consent, which Straits never had,
(2) continued drilling after December 2007, despite the failure of site clearance and being fully aware of Kokatha disapproval,
(3) the failure to explain why drilling proceeded, and
(4) serious misstatements in the various Declarations of Environmental Factors.

It is now proposed to consider each of these in their turn.

Drilling consent never obtained?

247. The long history of negotiations and site clearances is set out in some detail earlier. It follows from that course of events that the applicants were on direct notice by no later than May 2004, of the Kokatha views as to mining on Lake Torrens. The course of events also shows that whilst at times they had a species of partial consents, they were not exhaustive of all native title interests and there were always qualifications.
248. The affidavit of Mr Calvin of 16 November 2010 creates a quite different impression. It is replete with references to unqualified site clearances by the three relevant claim groups. It conveys the distinct impression there was sufficient certainty to conduct the archaeological survey between 19 and 24 November 2007, which there clearly was not.[256] Thereafter it immediately proceeds to refer to the survey by Dr Draper conducted on 9 December 2007, and then asserts that “soon after the report ... came to Straits’ notice drilling activity ceased”.[257] This was patently not the case either. Straits were on notice of fierce opposition through Mr Phil Jones on 9 December and those responsible at Straits administration by 20 December. They were spoken to about the report by Mr Calvin before then. As drilling was not completed until 25 February 2008, that was not on any view of the facts “soon after” Straits was told the drill sites were not cleared.

Continued drilling after December 2007

249. The evidence from Mr Calvin and Mrs Jones is quoted earlier at some length because it conclusively shows that Straits either has not, or cannot furnish any explanation for its resolve to continue drilling for a further two months. It proceeded in the face of the recommendations of Mr Calvin to cease drilling immediately. Presumably as a man of indigenous descent, he was retained in the position of Community and Heritage manager for his experience in indigenous issues. And yet to all outward appearances, they ignored his advise on that very subject. The inference to be drawn is that it deliberately, or recklessly not caring of the implications, completed the planned drilling cycle to obtain the samples necessary to consider if it should drill still further. And as we have seen, Ms Ferguson left the distinct impression in her email to Draper, that drilling was not ongoing.
250. The court takes a dim view of these events and manner in which Straits’ case attempted to overstate the nature of the consents it had obtained. Straits was determined to proceed holding express knowledge of Kokatha opposition and in the face of reports commissioned by it, regarding the necessity of further negotiations with them. Bluntly stated there were no agreements satisfying Part 9B of the Mining Act.

Failure to explain why drilling continued

251. There is simply no satisfactory explanation for drilling proceeding after 9 December 2007, even though a senior geologist for Straits was on site. The correspondence with Draper thereafter effectively warrants no drilling will proceed until it had received and considered his report. Mrs Jones made an unbecoming attempt to transfer the burden of responsibility to Mr Davidson. Senior management were well aware of the situation by no later than 20 December and yet nothing was done. Mrs Jones also tried to explain the delay by the intervening holiday period, whereas the evidence shows she knew before 20 December.
252. Mr Calvin could not explain why the drilling proceeded, despite his recommendation that it should stop. It is simply inexplicable why those in charge were not called to explain what happened. It may be accepted that seeking legal advice was an appropriate option, but that was sought too late in the New Year and just why drilling was not halted in the meantime, remains hidden from view. It can also be accepted, as Mr Waters submitted in his closing address, that this inquiry is limited and that Mrs Jones and Mr Calvin were the most involved on the ground, so to speak. On the other hand it was certain that this very issue would be raised and emphasised by the Kokatha. Once again in this state of affairs the only inference open is that Straits had no explanation for the drilling, or if it did, it consciously chose not to reveal it.
253. Either way it is difficult to place any confidence in the capacity of the applicants to comply with legal requirements in the future, despite its plea of having “since 2008 followed the process”.[258] Their position is compounded by the failure to make Departmental enquiries in relation to the site. To allow these significant areas of mis-judgment to pass uncritically, would be to allow Straits to gain from its own indiscretions. The fact is that it was in the period of unauthorised drilling that it acquired the so called data justifying their decision to explore further.

“Misstatements” in Declarations of Environmental Factors?

254. Relevant excerpts from the subject documents are quoted extensively above. To a large extent the three versions are template documents, substantially repeating in precisely the same words, identical information each time. At their core, is the unmistakable representation to Government that there were no Aboriginal heritage issues of any concern that should trouble the Government. This was, as we have seen, far from the case. One is forced to contemplate what the Ministerial attitude might have been if the full extent of Kokatha opposition, the failed endeavours to obtain requisite Kokatha consent, and the extent of unauthorised exploration been faithfully reproduced in these documents. Unfortunately they were not. They were incomplete at best and decidedly misleading at worst. This too, is a serious matter.

Section 63T(1) – Conclusion – weighing of considerations

255. A considered analysis of the entire gamut of s 63T(1) factors, produce in sum, the following conclusions. The sustained effort to reduce environmental impact and plans for restoration favour approval: (ss(1)(a)(vi)). The economic significance of the project is not all that great either locally or Nationally, but it is a consideration favouring exploration: (ss(1)(d)). The public interest cuts both ways, but in the wash leans towards exploration, if only because the Lake Torrens anomaly remains a tantalising unmasked mystery: (ss 63T(e)). The assessment by Ministers of the Crown also weigh in that direction: s 63T(1)(b)(ii).
256. The nature of the considerations raised by ss 63T(1)(a)(i) and (iv)), count against approval. Those falling under ss 63T(1)(ii), (iii), (iv) and (v) are more weighty and when combined, tend to outweigh those favouring approval, because of the genuine longstanding and consistently voiced opposition to mining, founded on the undoubted prime importance of the land to the Kokatha and to a lesser extent the Western Desert Bloc people.
257. If that were not enough, the applicants’ breach of the exploration licence together with their violations of the rights and interests of the Kokatha, especially Straits unacceptable, unforgivable and unaccountable resolve to continue the drilling to further its own ends at the expense of other interests, tell heavily against it: s 63T(1)(f). Their case was not helped by a somewhat jaundiced presentation of the evidence and the affront inherent in the failure to explain why mining continued, compounded by the failure to make those in responsible executive positions accountable.

Miscellaneous Issues

258. The submission of the Adnyamathanha people for identical conditional determinations to those of the Kokatha does not arise given the conclusion just reached, it fails in any event for reasons related to the scheme of enforcement erected by the Mining Act. Once made, determinations under Part 9B must be lodged and registered by the mining register: s 63V(i). Thereafter determinations take effect “as if it were a contract between the proponent and the native title parties”: s 6cV(2), “enforceable by or against the original parties to the proceedings”: s 63V(3).
259. However as the Adnyamathanha are no longer claimants to the subject land, they do not qualify as “the communal, group of Aboriginal peoples in relation to the land”, as defined in s 4(1) of the Native Title (South Australia) Act, the definition of “native title” being referred by s 6(1) of the Mining Act to the Native Title Act (SA). They could not therefore enforce the determination of the court, so any attempt to insert “reciprocal rights” in the conditions of any Part 9B determination, would be ineffective. Whatever agreement they and the Kokatha might wish to reach in the Lake Torrens agreement as between them, is another matter. There are potential difficulties with such orders in any case given the prohibition on making “conjunctive or umbrella” determinations under s 63U of the Mining Act, but as this question was not raised during the hearing it cannot be taken any further.
260. When it comes to the proposed conditions of mining, the draft proposed by Straits is far too general and much too vague to be enforceable and workable. The regime would have to be tightened to specify time limits for notice to be given by the Kokatha for access to the land and to specify the outer limits thereof. The draft also fails to deal with “the notices to be given ... before the land is entered for the purposes of mining operations”, as demanded by s 63S(3)(a) of the Mining Act. It further fails to establish a regime giving the Kokatha the necessary seclusion to conduct ceremonies, such as abandoning the camp during that period of time for instance.
261. There is an overriding need for automatic forfeiture of the exploration lease in light of Straits and hence Kelaray’s breach of the licence terms requiring compliance with Part 9B, should they stray outside their proposals, or breach the undertakings given regarding the extent of the drilling in general and under or on Crombie Ridge in particular, given the poor track record so far. Further conditions for the dismantling and removal of the campsite on Lake Torrens between Target Zones 2 and 7 are additionally appropriate. Questions of restrictions on alcohol consumption on the campsite should also be agitated. Regrettably the Kokatha refused to engage in any debate as to conditions of mining, so it has not been possible to be any more specific than this.
262. There will be a direction that the restricted and confidential material be securely retained in the custody of the court for a period of two months from tomorrow. Thereafter all hard copies are to be returned to the respective parties producing them, by their solicitors. All electronic copies thereof are to be permanently deleted under the supervision of the court’s IT staff. The orders relating to disposal of such material by the parties remain intact. The parties are at liberty to apply at short notice as to these matters, as well as any further consequential matters including costs, as they may be advised.[259]

Orders

263. In the final analysis there is a geological anomaly below Lake Torrens is worthy of further investigation. It is marginally in the public interest to do so. The potential has been overstated, at least on the basis of the relatively scant material available to the court. The native title in the land of the traditional owners in preventing mining are significant and genuine. The extreme significance of the area to the Kokatha has not been sufficiently appreciated and their struggle to have their views considered, have not been accorded adequate recognition, to date. The fundamental shortcomings of the applicants in the field, the failure to secure adequate consents and the posture of avoiding scrutiny and accountability for precipitous decision making, tell heavily against the proposed mining operations going ahead.
264. On the application filed on 2 August 2010 for a determination authorising the mining operations referred to therein on the land comprised in Exploration Licence 4296, the court determines that these may not be conducted, pursuant to s 63S(2)(a) of the Mining Act 1971 (SA).
     

---

[1] Australian Dictionary of Biography Vol 1, 1966 p 363-364
[2] Confidential report Dr Willis 18 November 2010, para 59
[3] Hereafter the Mining Act
[4] Affidavit of J H Dnistrianski dated 2 August 2009, Exhibits “JHD 7 & 8” [16]
[5] Affidavit of M D Jones dated 13 August 2010, [5,6], T165.30-166.11
[6] Hereafter ERD Court

[7] See Kable v Director of Public Prosecutions for New South Wales [1996] HCA 24; (1996) 189 CLR 51, State of South Australia v Totani [2010] 85 ALJR 19, Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, Perry "The High Court at the Cross-roads" in Stone and Williams Eds, Federation Press (2000) p 148
[8] Previously Exploration Licences 3195 and 2533
[9] Affidavit of J H Distrianski dated 13 August 2010 “Exhibit JHD 1”
[10] Affidavit of Mrs Jones 16 November 2010 [15]
[11] Final written submissions [2.5]
[12] Kokatha final submission [15]
[13] Affidavit of O W Linde dated 20 August 2010, Exhibit “OWL 1” [2]
[14] Affidavit of O W Linde dated 20 August 2010, Exhibit “OWL 3” [8]
[15] Exhibit R 3
[16] Affidavit of O W Linde dated 20 August 2010 [3]
[17] Affidavit of R G Eckermann dated 18 November 2010, [2]–[5]
[18] Affidavit of M D Jones dated 30 November 2006, Exhibit “MDJ 22”
[19] The origin of the name “Kokatha” is referred to in the evidence of Andrew Starkey RT58.29-.39
[20] Affidavit of M D Jones dated 16 November 2010, [18]
[21] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 9” [5]; Exhibit “PWC 10” [7]
[22] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 13” [10]
[23] Hereafter the ALC
[24] Affidavit of P W Calvin dated 16 November 2010, [18]
[25] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 19” [19]
[26] Affidavit of R G Eckermann dated 18 November 2010, [11]
[27] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ” [23]–[24]
[28] Affidavit of M D Jones dated 16 November 2010, [25]
[29] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 9”; Exhibit “PWC 10” [5], [7]
[30] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 13” [19], [34]
[31] Affidavit of M D Jones dated 16 November 2010, [20]
[32] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 23” [24]
[33] Affidavit of M D Jones dated 16 November 2010, [20]
[34] Affidavit of R G Eckermann dated 18 November 2010, [13]
[35] Affidavit of R G Eckermann dated 18 November 2010, Exhibit “RGE 1” [17]
[36] Affidavit of R G Eckermann dated 18 November 2010, Exhibit “RGE 2” [18]
[37] Written submission dated 30 November 2010 [6]
[38] Affidavit of J H Dnistrianski dated 13 August 2010, Exhibit “JHD 11” [7]
[39] [2001] FCA 1106; (2001) 123 FCR 62 at [258]
[40] Affidavit of O W Linde dated 28 August 2010, Exhibit “OWL 6” [20]
[41] Affidavit of P W Calvin dated 13 August 2010, [10]–[11]
[42] Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 2” [9]
[43] Affidavit of O W Linde dated 20 August 2010, [28]–[29]

[44] Affidavit of J H Dnistrianski dated 13 August 2010, Exhibit “JHD 13” [19]–[22]; Affidavit of O W Linde dated 20 August 2010, [34]–[35]
[45] Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 4” [11], [14]

[46] Affidavit of J H Dnistrianski dated 13 August 2010, Exhibit “JHD 13” [39], Affidavit of O W Linde dated 20 August 2010, [51]
[47] Affidavit of O W Linde dated 20 August 2010, [53].
[48] Exhibit A7.
[49] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 8”
[50] Written submission filed 30 November 2010
[51] The equivalent directive in s 36(1) of the Native Title Act (Cth) is “as soon as practicable”
[52] [1998] HCA 28; (1998) 194 CLR 355

[53] The court earlier ruled that it was not obliged to sit with a native title Commissioner see Straits Exploration (Australia) Pty Ltd & Anor v The Kokatha Uwankara Native Title Claimants & Anor [2010] SAERDC 55
[54] Section 81 Native Title Act 1993 (Cth)
[55] Affidavit of M D Jones dated 13 August 2010 [18]
[56] T177.26-.34
[57] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 7”, [9]
[58] Exhibit A5
[59] Exhibit R6
[60] Exhibit R6, p 3
[61] Exhibit A9, 4 November 2010
[62] Exhibit A10
[63] De Rose & Ors (No 2) v South Australia (2002) 133 FLR 325 at [42]

[64] The references are collated in the applicants’ final written submission at footnotes 152, 177, 178, 217-218, 223, 224, 226 and expansively in paras 170-189 & 210-257 of the respondent’s final submission

[65] RT33.36-36.41 (24/11/10), RT76.26-82.2 (25/11/10), RT3.20-32 (26/11/10). The references “RT” contain passages of restricted evidence to which suppression orders continue to apply
[66] RT123.20-124.10 25 November 2010
[67] [1992] HCA 58; (1992) 175 CLR 479 at 488-489
[68] [2003] FCA 666 at [334]

[69] Yarmirr v Commonwealth of Australia [2001] HCA 56; (2001) 208 CLR 1 at [84], De Rose v South Australia (2002) FCA 1342 at [342-343]
[70] T175.6-.19
[71] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 7” [9]
[72] Affidavit of M D Jones dated 16 November 2010, Exhibits “MDJ 17 & 18”
[73] Affidavit of P W Calvin dated 16 November 2010 [5]
[74] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 9”
[75] Affidavit of M D Jones dated 16 November 2010, Exhibits “MDJ 17” and “18” respectively
[76] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 10”
[77] Affidavit of M D Jones dated 15 November 2010, Exhibit “MDJ 2” p 263 (appendix 6)
[78] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 13” [10]
[79] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 14”, p 4
[80] Affidavit of Mr Calvin dated 16 November 2010, Exhibit “PWC 15” [10]
[81] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 18” pp 18 & 20
[82] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 18” p 21
[83] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 18” p 22

[84] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 19”, report dated October 2009, pp39-40. The reference “KPC” are to the Kokatha People’s Council, and the “ALCAC” is to the Andamooka Land Council Aboriginal Corporation.
[85] Affidavit of P W Calvin dated 16 November 2010, Exhibits “PWC 20” & “PWC 21”, p 4
[86] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 17”
[87] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 10”
[88] Affidavit of M D Jones dated 30 November 2010 [7]
[89] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 16”
[90] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 11”
[91] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 12”
[92] T179.12-17, T250.3-.25
[93] Affidavit of M D Jones dated 16 November 2010, Exhibits “MDJ 7” p 9 and “MDJ 11” [20]
[94] Affidavit of M D Jones dated 30 November 2010, Exhibit “MDB 20”
[95] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 23” pp 10, 12, 14 and 15
[96] At para 1.11
[97] T179.23-.24
[98] T179.37 & T181.11-.31
[99] T263.36-.37
[100] Affidavit of M D Jones dated 30 November 2010, Exhibit “MDJ 21”
[101] T183.30-184.11
[102] T186.15-188.34
[103] T190.30-.34
[104] T251.25-253.3
[105] T242.6-.13
[106] Affidavit of M D Jones dated 30 November 2010, Exhibit “MDJ 20”
[107] T179.18-180.27
[108] T249.5-.12
[109] T251.36-252.4
[110] T253.1-.3
[111] T249.17-.19
[112] T250.29-251.17
[113] T240.21-241.33
[114] T164.6-165.11, T1266.32-168.9 (Mrs Jones), T254.3-265.11 (Mr Calvin)
[115] T193.1-196.27
[116] Exhibit “JHD1”
[117] Affidavit of M D Jones dated 12 August 2010, Exhibit “MDJ 14”, p 21-22
[118] Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 2” p 23-24
[119] Affidavit of M D Jones dated 15 November 2010, Exhibit “MDJ 7” p 29-30

[120] Determination under s 43(1) of the Native Title Act 1993 (Cth) by Special Ministers of State, 18 October 1995
[121] (2002) 116 FCR 390
[122] (2002) 125 FCR 89
[123] (1991-1992) 175 CLR 1
[124] Acts Interpretation Act 1915 (SA) s 19(2)(a)
[125] Affidavit of J H Dristrianski dated 2 August 2010, Exhibits “JHD 4 and 5”

[126] Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 at 81, Western Australia v Thomas (1996) 133 FLR 124 at 165-166
[127] (1996) 133 FLR 124 at 165
[128] [2009] NNTTA 49; (2009) 232 FLR 169 at [37]
[129] (1996) 133 FLR 124 at 165-166
[130] [2010] FCA 690
[131] (2007) 164 FCR 355
[132] Applicant’s preliminary outline paragraph 2.1(b)
[133] Commonwealth v Clifton [2009] NNTTA 49; (2009) 232 FLR 169 at [15]
[134] Commonwealth v Clifton [2009] NNTTA 49; (2009) 232 FLR 169 at [25]
[135] [2007] FCAFC 190; (2007) 164 FCR 355 at [37]
[136] [1998] NNTTA 2 at [20]
[137] (1996) 185 CLR 595
[138] (1995) 61 FCR 1
[139] At CLR 616

[140] At CLR 622-623
[141] [2007] FCAFC 190; (2007) 164 FCR 355 at [50-51]
[142] [2001] FCA 414; (2001) 108 FCR 453 at [60]
[143] The Registration Test Decision of 18 June 2009 was tendered as Exhibit A8

[144] Written submission 12 November 2010 paragraphs 30, 33 & 34. The reference to Thomas is Western Australia v Thomas on behalf of Waljen People (1996) 133 FLR 124, quoted earlier
[145] [2009] NNTTA 49; (2009) 232 FLR 169 at [64]
[146] Above at 166-176
[147] [2008] NNTTA 38; (2008) 218 FLR 387 at [57] & [72]
[148] [2009] NNTTA 49; (2009) 232 FLR 169 at [162]
[149] Affidavit of J H Dnistrianski dated 2 August 2010 Exhibit “JHD 3” [13]

[150] Affidavit of J H Dnistrianski dated 2 August 2010, Exhibit “JHD 3”, “Application Information and Extract from the Register of Native Title Claims” at p 2
[151] (2003) 134 FCR 16; [2003] FCAFC 283 at [25]
[152] (2005) 145 FCR 442; [2005] FCAFC 135 at [136]- [140]
[153] [2010] FCAFC 26 at [121]- [125]
[154] [2002] HCA 28; (2002) 213 CLR 1 at [89]
[155] (2007) 243 ALR 72 at [71] & [127]
[156] Affidavit of H L Dnistrianski dated 17 November 2010, Exhibit “JHD 25” [4]
[157] Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 3” [11]

[158] Effective from 31 October 1975, and refer to Koowarja v Bjelke-Petersen & Ors [1982] HCA 27; (1981-1982) 153 CLR 168, Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 437 (the Native Title Case)
[159] Submission of the First and Second Applicants [5.37]
[160] [2002] HCA 28; (2002) 213 CLR 1 (footnotes omitted), Gleeson CJ, Gaudron, Gummow and Hayne JJ
[161] [2002] HCA 28; (2002) 213 CLR 1 per Gleeson CJ, Gaudron, Gummow and Hayne JJ
[162] See s 68C, 68D & 68E National Parks and Wildlife Act 1972 (SA) for instance
[163] Affidavit of J H Dnistrianski dated 23 November 2010, Exhibit “JHD 28”
[164] Affidavit J H Dnistrianski dated 23 October 2010, Exhibit “JHD 28” [6]
[165] Affidavit of P W Calvin dated 16 November 2010, “Exhibit “PWC 15” [14]
[166] RT41.34-42.12, 24-11-2010
[167] [2002] FCA 1342 at [219] & [515]
[168] De Rose v South Australia [2002] FCA 1342 at [541]
[169] De Rose v South Australia (2003) 133 FCR 325, [2003] FCAFC 286 at [151]- [152]

[170] Preamble to the Native Title Act (Cth), Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [63], Kanak v National Native Title Tribunal & Ors (1995) 61 FCR 103 at 124
[171] [1992] HCA 23; (1991-1992) 175 CLR 1 at 109 per Deane and Gaudron JJ, and at 58 per Brennan J
[172] (2002) 214 CLR 422
[173] [2002] HCA 58; (2002) 214 CLR 422 at [45]
[174] [1999] HCA 53; (1999) 201 CLR 351 at [37]
[175] [1982] HCA 69; (1983) 158 CLR 327 at 358
[176] [1999] HCA 53; (1999) 201 CLR 351 per Gleeson CJ, Gaudron, Kirby and Hayne JJ (footnote omitted)
[177] [2003] FCAFC 286; (2003) 133 FCR 325 at [31-32], [41-43], [278-280]
[178] Confidential Statement 18 November 2010 [22], [50]

[179] RT35.2-36.41, RT62.13-64.14 , 24 November 2010; RT76.26-8.47 25, RT116.5-.25, November 2010, RT22.15-.25, 26 November 2010
[180] T36.42-383, 24 November 2010
[181] T36.42-37.3.2, 24 November 2010.
[182] RT62.13-64.14, 24 November 2010; RT79.46-80.4, 25 November 2010
[183] [2002] HCA 28; (2002) 213 CLR 1 at [14]
[184] Affidavit of M D Jones dated 16 November 2010, Exhibit “MDJ 7” p 17; T199.15-.17
[185] Submission of Mr Waters, T381.23-.35
[186] Refer respondent’s final written submissions [170-189], [247] and the transcript references therein

[187] RT50.36-51.13; RT58.29-60.6; 63.19-.41, 24 November 2010, Restricted statement Andrew Starkey [12], [13], [22] and [48], restricted statement of Robert Starkey [22], [23]

[188] RT4.19-5.29, T12.9-.30, RT34.2-36.41, RT63.34-64.14, 24 November 2010; RT21.26-22.6, 26 November 2010, restricted statement Michael Starkey [24-25]

[189] RT54.4-55.6, 24 November 2010; T82.4-.40, T88.35-89.24, 25 November 2010, restricted statement Robert Starkey [22-23], restricted statement Michael Starkey [13], [24], [25], [30] & [38]
[190] T120.27-122.16
[191] RT11.36-13.1, RT21.39-28.10 24 November 2010
[192] Restricted report of Dr Willis [32], [51-54], RT113.17-116.44, T137.9-139.17, 25 November 2010
[193] RT 112.14-114.28, T138.2-139.11, 25 November 2010

[194] In contrast to the evidence in Linda Champion on behalf of the Central West Goldfields People Western Australia Internickel Australia Pty Ltd [2005] NNTTA6 at
[195] [2002] FCA 1342

[196] (2005) 145 FCR 290

[197] [2003] FCAFC 286; (2003) 133 FCR 325 at [67]
[198] Refer para 6.9 of the applicant’s final written submissions
[199] T32.20-.42
[200] T38.29-39.34, T5.30-7.27, 26 November 2010
[201] Submission of Mr Hughston SC T493.4-494.4
[202] Final Written submission para 6.9(f), p 26
[203] Wednesday 8 December 2010, Exhibit A11
[204] T14.12-.26, 26 November 2010
[205] T14.27-15.12, 26 November 20010
[206] Exhibit R12
[207] Exhibit R13

[208] RT114.24-115.14, RT138.42-139.25, 25 November 2010
[209] T96.26-97.6, 25 November 2010
[210] T97.8-.17, 25 November 2010
[211] 4 & 5 Will IV, c 95
[212] [2002] FCA 1342 at [239]
[213] (1996) 142 ALR 21 at 34-35
[214] (1996) 133 FLR 124 at 173
[215] [1996] NNTTA 31; (1996) 132 FLR 73 at 80
[216] [2008] NNTTA 38; (2008) 218 FLR 387 at [57] & [72]
[217] [2009] NNTTA 49; (2009) 232 FLR 169 at [154] & [161-163]
[218] (2009) 232 FLR 169; [2009] NNTTA 49 (27 May 2009)
[219] Above at [70] & [81] respectively
[220] Above at [122] & [148] respectively
[221] Above at [153], [172], [183-184] & [188] respectively
[222] Above at [201]
[223] (1982) 47 LGRA 38, Cripps J
[224] Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 6”

[225] Affidavit of M D Jones dated 15 November 2010, Exhibit “MDJ 7” p 502 (Recital B) and p 520 Item 2

[226] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 9”; Affidavit of M D Jones dated 13 August 2010, Exhibit “MDJ 2” appendix 6
[227] Affidavit of R G Eckermann dated 18 November 2010 [8]
[228] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 9”

[229] Unrestricted stated of Robert Starkey [31] & [42]
[230] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 13” [10]
[231] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 15”
[232] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 18”
[233] Affidavit of P W Calvin dated 15 November 2010, Exhibit “PWC 19”
[234] Affidavit of P W Calvin dated 11 November 2010, Exhibit “PWC 20” & “PWC 21”
[235] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 16”
[236] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 23”
[237] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 23”
[238] Affidavit of Mr R G Eckermann dated 18 November 2010, Exhibit “RGE 1”
[239] Affidavot of M D Jones dated 13 August 2010, Exhibit “MDJ 2”
[240] Applicants’ final written submission [13.3(d)]
[241] T79.19-80.26
[242] T9.36-38
[243] Exhibit R14
[244] Exhibit A10a
[245] At [3.2]
[246] T168.23-169.13
[247] Exhibit “MDJ-12” to the affidavit of Mrs Jones’ of 16 November 2010, p31
[248] Exhibit “MDJ-12” affidavit of Mrs Jones 15 November 2010, p4)
[249] Affidavit of M D Jones dated 15 November 2010, Exhibit “MDJ 7”, p8
[250] T170.1-171.6
[251] T171.31-174.3

[252] Affidavit of M D Jones dated 15 November 2010, Exhibit “MDJ 7”, pp 8-9. The letters “IOCG” therein refer to iron oxide, copper and gold
[253] (1985 S9 ALJR 844 at 846
[254] Detailed in applicants’ final written submission [6.15]
[255] T267.1-.25
[256] Affidavit of P W Calvin dated 16 November 2010, Exhibit “PWC 22” [22] & [23]
[257] Above at [24]
[258] T575.16-.17
[259] As to costs note s 29 ERD Court Act, s 16B Native Title Act 1994 (SA)