Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd

[2012] NNTTA 48

NATIONAL NATIVE TITLE TRIBUNAL

Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48 (8 May 2012)

Application No:        WO10/778, WO10/779

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders (WC98/68) (native title party)

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The State of Western Australia (Government party)

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Murchison Metals Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  8 May 2012

Catchwords:  Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – expedited procedure attracted / not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109, 151(2), 237

Mining Act 1978 (WA), ss 20(5), s 63 AA

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Evidence Act 1995 (Cth), ss 76, 79

Environmental Protection Act 1986 (WA)

Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea

Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (14 March 2012), Daniel O’Dea

Dasreef v Hawchar (2011) 277 ALR 611

Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 (14 May 2007), Hon C J Sumner

Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (27 May 2011), Hon C J Sumner

Jango v Northern Territory (No 4) [2004] FCA 1539

Jango v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318

Les Tullock and Others on behalf of Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2001] NNTTA 22 (24 February 2011), Hon C J Sumner

Little v Western Australia [2001] FCA 1706

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Neowarra v Western Australia [2003] FCA 1402

Rubibi Community v Western Australia (No 5) [2005] FCA 1025

Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory [2002] NNTTA 212 (27 September 2002), John Sosso

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Pollock v Wellington (1996) 15 WAR 1

Sampi v Western Australia [2005] FCA 777

Silver v Northern Territory of Australia (2002) 169 FLR 1, [2002] NNTTA 18 (1 February 2002), John Sosso

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Valerie Tambling, Tony Kenyon Luwanbi & Gabriel Hazelbane Gulngarring/NT Gold Pty Ltd & David J Langley/Northern Territory [2002] NNTTA 209 (23 September 2002), John Sosso

Walley v Western Australia (2002) 169 FLR 437

Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 (18 August 2010), Daniel O’Dea

Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (15 September 2010), Daniel O’Dea

Ward v Western Australia (1996) 69 FCR 208

Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239 (23 June 2000), Hon E M Franklyn QC

Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (28 July 1999), Hon E M Franklyn QC

WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (23 February 2012), Daniel O’Dea

Representative of the     Mr Malcolm O’Dell, Central Desert Native Title Services
native title party:            Ms Tessa Herrmann, Central Desert Native Title Services
Ms Irene Assumpter Akumu, Central Desert Native Title Services

Representatives of the     Mr Griff Ranson, State Solicitor’s Office
Government party:         Ms Alicia Warren, State Solicitor’s Office
  Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the     
grantee party:                 Mr Mark Campana, Murchison Metals Ltd

REASONS FOR DETERMINATION

1. On 24 February 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E69/2576 and E69/2606 (‘the proposed licences’, ‘tenement areas’) to Murchison Metals Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences comprise areas of:

   • E69/2576 – 216.4 square kilometres, 214 kilometres north east of Wiluna. It is 83.03 per cent within the determined area of the Birriliburu registered claim (WC98/68 – registered from 29 September 1998, part determined on 20 June 2008); and
   • E69/2606 – 111.36 square kilometres, 181 kilometres north east of Wiluna. It is 73.02 per cent within the determined area of the Birriliburu registered claim (WC98/68 – registered from 29 September 1998, part determined on 20 June 2008).

The proposed licences are partly overlapped by the Wiluna registered claim (WC99/24 – registered from 24 September 1999). 

1. On 15 June 2010, an expedited procedure objection application was lodged with the Tribunal by Andy Campbell and others on behalf of the Birriliburu native title holders (‘the native title party’) in relation to the proposed licences (designated by the Tribunal as WO10/778 in relation to E69/2576 and WO10/779 in relation to E69/2606).

2. On 30 June 2010, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry to determine whether or not the expedited procedure is attracted. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for the inquiry. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. At an adjourned status conference on 4 May 2011, after an extended period of negotiation, the grantee party advised that it was not willing to reach agreement with the native title party on certain matters and requested that the matter proceed to inquiry.  The native title party requested an extension to the dates for providing contentions and evidence and made a further request for extension on 30 June 2011, citing delays in gathering evidence due to sorry business.  The native title party’s requests were approved by Deputy President Sumner on 5 May 2011 and 7 July 2011 respectively.

4. The Government party lodged its evidence on 14 February 2011, followed by contentions in respect of each objection on 8 March 2011 (‘GVP 778’ and ‘GVP 779’).  The native title party lodged its evidence and contentions in respect of each objection on 22 August 2011 (‘NTP 778’ and ‘NTP 779’).  The grantee party did not lodge any contentions or evidence but indicated at a listing hearing on 15 September 2011 that it intends to rely on the Government party’s contentions.  

5. On 14 September 2011, the Government party made an application to the Tribunal to cross-examine the deponents of the affidavits lodged by the native title party.  The application was made on the basis that, in the view of the Government party, the objection was not a matter in which it was appropriate to proceed ‘on the papers’ (that is, without a hearing).  Following a Listing Hearing on 15 September 2011, further directions were made by Deputy President Sumner requiring parties to provide submissions in relation to the Government party’s application.

6. On 14 October 2011, I was appointed as the Member for the purposes of the conduct of the Inquiry.  On 19 October 2011, I approved a request by the native title party for an extension to the dates for filing submissions and set a date for a directions hearing to determine whether the matter should proceed to a hearing.  At the directions hearing on 22 November 2011, I determined that the native title party should have the opportunity to submit further evidence to address the concerns of the Government party and set directions accordingly.  On 5 December 2011, the native title party lodged the affidavit of Mr Frankie Wongawol and on 12 December 2011 the Government party advised the Tribunal that it wished to maintain its application that the matters be determined following a hearing.  A hearing date was tentatively set down for March 2012; however, on 23 January 2012 the Government party withdrew its application and advised the Tribunal that it did not object to the matter being decided on the papers.  At a subsequent listing hearing on 2 February 2012, directions were set down for parties to file further contentions.  The Government party filed contentions in response to the native title party’s contentions on 2 March 2012 (‘GVP Reply 778’ and ‘GVP Reply 779’) and the native title party filed further contentions on 12 March 2012 (‘NTP Reply 778’ and ‘NTP Reply 779’).

7. Section 151(2) of the Act provides that the Tribunal may determine an application on the papers unless it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In support of its application for the matter to be determined following a hearing, the Government party contended that the information contained in the affidavits lodged by the native title party is of such a level of generality that it would be unfair to the Government party if the Tribunal were to accept and act on the affidavits without permitting the Government party to question the deponents. The Government party has now abandoned its application. Nevertheless, it is my view that the matters raised in the affidavits are capable of being resolved without resort to a formal hearing and I do not consider that the Government party or the grantee party have suffered any prejudice as a result. Accordingly, I am satisfied that the objection can be adequately determined on the papers.

Legal principles

1. Section 237 of the Act provides:

237     Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

1. In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.

2. With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38] and [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18 (1 February 2002).

Evidence in Relation to the Proposed Act

1. Government party documentation establishes the underlying land tenure on the proposed licences as follows:

E69/2576

·Historical Lease 395/415 overlapping at 100 per cent;

·CALM Purchased Former Pastoral Lease (CLP/6, Earheedy P/l3114/445) overlapping at 17 per cent; and

·Two parcels of Vacant Crown Land overlapping at 83 per cent and 17 per cent.

E69/2606

·Two Historical Leases (395/415 and 395/435) overlapping at 2 per cent and 84.2 per cent respectively;

·CALM Purchased Former Pastoral Lease (CLP/6, Earheedy P/l3114/445) at 27 per cent; and

·Four parcels of Vacant Crown Land at 10.3 per cent, 16.6 per cent, 23.1 per cent and 50 per cent.

1. There are no Aboriginal communities identified within or in the vicinity of the tenement areas.

2. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party show that there are no Aboriginal sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the tenement areas. However, there are 9 registered sites and 4 ‘Other Heritage Places’ within a 20 kilometre radius of the proposed licences, including Imbin Rockhole (Site ID 2127 – registered, ceremonial, mythological, engraving, artefacts / scatter, water source, open access), which is roughly equidistant from the two tenements (that is to say, between 10 and 15 kilometres east of E69/2606 and west of E69/2576).

3. Government party Quick Appraisal documentation also establishes in respect of proposed licence:

   ·E69/2576 – one pending exploration licence overlapping at 5.7 per cent and five dead tenements, including one exploration licences granted in 1994 and surrendered in 1997 overlapping at 9 per cent, one exploration licence granted in 1997 and surrendered in 1998 overlapping at 12.2 per cent and one exploration licence granted in 2003 and surrendered in 2007 overlapping 100 per cent. One temporary reserve was granted in 1959 and cancelled in 1964, and another was granted in 1977 and cancelled in 1978; and

   ·E69/2606 – three dead tenements, including one exploration licence granted in 2006 and surrendered in 2009 overlapping at 94.4 per cent, one temporary reserve granted in 1959 and cancelled in 1964 and one temporary reserve granted in 1977 and cancelled in 1978.

4. The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4).

5. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard Condition 4 is also to be read with s 63AA of the Mining Act which requires approval by the DMP Environmental Officer of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with DIA and obtain advice from them that the proposed activities are acceptable.

6. In addition, the grant of the proposed licences will be subject to the following conditions:

   In respect to the area designated as CPL 6 in TENGRAPH the following conditions apply:

   5.Prior to any ground-disturbing activity, as defined by the Director, Environment, DMP the licensee preparing a detailed program for each phase of the proposed exploration for approval of the Director, Environment, DMP. The program to include:

   ·   maps and/or aerial photographs showing all proposed routes, construction and upgrading of tacks, camps, drill sites and any other disturbances;

   ·   the purpose, specifications and life of all proposed disturbances;

   ·   proposals which may disturb any declared rare or geographically restricted flora and fauna; and

   ·   techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances.

   6.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DMP. Such rehabilitation as is appropriate and my include

   ·   stockpiling and return of topsoil;

   ·   backfilling all holes, trenches and costeans;

   ·   ripping;

   contouring to the original landform;

   ·   revegetation with seed; and

   ·   capping and backfilling of all drill holes.

   7.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required..

7. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licences for their breach) will be imposed on the proposed licences:

   1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’

8. Government party contentions (at para 5(f)) indicate that a further condition will be placed on the grant of the proposed licences requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (RSHA) as follows:

   In respect of the area covered by the licence the Licensee, if so requested in writing by the Birriliburru, the applicants in Federal Court application no. WAD6284 of 1998 (WC98/68), such request being sent by pre-paid post to reach the Licensee’s address c/- Michael Giles, Tenement Administrator, PO Box 904, West Perth WA 6872 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Birriliburu the Central Desert Regional Standard Heritage Agreement.

Contentions and Evidence provided by the native title party

1. In its contentions the native title party states that its objection is in relation to ss 237(a) and 237(b) of the Act and that it ‘does not seek to pursue its objection in relation to sub-sections 237(c) of the NTA as originally identified in the Form 4 objection’ (at NTP 778 and NTP 779, para 1.4).

2. In support of its contentions the native title party has provided the affidavits of:

   ·Norman Thompson, sworn 10 August 2011;

   ·Timmy Wongawol, sworn 10 August 2011;

   ·Victor Ashwin, sworn 10 August 2011;

   ·Maurice Wongawol, sworn 10 August 2011;

   ·Lindsey George Langford, affirmed 19 August 2011;

   ·William Henry Kruse, affirmed 20 August 2011; and

   ·Frankie Wongawol, affirmed 1 December 2011.

Annexed to the affidavit of Mr Langford is a DVD-R containing a video recorded on site by Mr Langford with Mr Robert Wongawol in April and May 2010.

1. In the course of the inquiry, the native title party sought confidentiality orders pursuant to s 155 of the Act limiting the disclosure of the affidavits of Mr Thompson, Mr Timmy Wongawol, Mr Ashwin, Mr Maurice Wongawol, Mr Langford and Dr Kruse and the details contained therein. At a directions hearing on 22 November 2011, I made an order to that effect, which I subsequently extended to the affidavit of Mr Frankie Wongawol at the listing hearing on 2 February 2012. Consequently, the restricted affidavits will not be reproduced in this determination. However, the order stipulated that nothing in the order would prevent the Tribunal from appropriately explaining the reasons for its decision. In providing the reasons for this determination, I have found it necessary to refer from time to time to the contents of the affidavits. However, I acknowledge the native title party’s wish to limit the disclosure of culturally sensitive material and I discuss the contents of the affidavits only to the extent necessary to explain my decision.

2. Mr Thompson, Mr Timmy Wongawol, Mr Ashwin, Mr Maurice Wongawol and Mr Frankie Wongawol (to whom I refer collectively as the Birriliburu deponents) state that they are initiated men.  Mr Thompson and Mr Maurice Wongawol state that they are senior members of the community, while Mr Frankie Wongawol states that he is a wati (senior law man) and makes his affidavit ‘in the company and presence of 13 other wati’ (at para 1).  Mr Maurice Wongawol also states that his authority to speak about the area of the proposed licences is dependent on authorisation from Mr Thompson: ‘[h]e is the main one, but I can also look after country and talk’ (at para 3).  Mr Timmy Wongawol makes a statement to similar effect.  I accept that Mr Thompson, Mr Frankie Wongawol and Mr Ashwin have the authority to speak on behalf of the native title party.  I also accept that Mr Maurice Wongawol and Mr Timmy Wongawol have authority to speak on behalf of the native title party, subject to any statement made by them that does not conflict with the evidence of Mr Thompson.

3. At the request of the Government party, the native title party has also provided two maps of the area which the deponents referred to in their affidavits.  The first map, to which Mr Frankie Wongawol refers, is an A0-sized topographical map of the proposed licences.  The second map, to which Mr Thompson, Mr Timmy Wongawol, Mr Ashwin and Mr Maurice Wongawol referred, is an A3-sized topographical map of the proposed licences with the addition of an overlay of sites and jukurrpa (or dreaming stories) drawn from the cultural geography database maintained by Central Desert Native Title Services Ltd (‘Central Desert’).  The native title party specified that the maps are provided on the basis that they were used to assist the deponents to understand the location of the proposed licence and are not intended as evidence of the details contained in the maps.  I deal with this question later in this determination.

4. The Government party sought to put in issue the weight the Tribunal should attribute to the affidavits of Mr Langford and Dr Kruse.  Mr Langford states that that he is an anthropologist currently employed by Central Desert in the role of ‘Facilitator Land and Community.’  Mr Langford also states that he was previously employed by Central Desert as an anthropologist and project officer (at para 3).  Dr Kruse states that he is a qualified anthropologist and has conducted anthropological research for a number of organisations including Central Desert.  Dr Kruse also states that he has several years’ experience working with people of the Western Desert Cultural Bloc, including members of the native title party (at para 1).  In relation to the affidavit of Dr Kruse, the Government party contends (at GVP Reply 778, GVP Reply 779 para 29-30) that the evidence is ‘largely devoted to a theoretical discussion of the concept of jukurrpa,’ while the remainder of the affidavit concerns the importance of what is referred to as the ‘Imbin Area.’  The Government party submits that Dr Kruse’s evidence ‘is very general in nature and does not establish very much at all that is specific to the proposed tenement area’ and, in relation to the importance of Imbin Rockhole and nearby areas, ‘does not appear directly relevant’ because there is no evidence from Dr Kruse or the native title holders that the proposed licences are located within the Imbin Area.  In relation to E69/2576, it is submitted that Dr Kruse’s evidence ‘also does not appear to be relevant, or at least not directly so’ to the effect of the grant of the tenement because ‘there is no evidence from the native title holders that the wati kutjara jukurrpa traverses that area.’  Concerning the affidavit of Mr Langford, the Government party contends (at GVP Reply 778, GVP Reply 779 para 31-32) that the basis for Mr Langford’s opinions about the size and importance of the Imbin Area and the effect of preventing access to waterholes has not been disclosed.  While the Government party acknowledges that the rules of evidence do not apply in proceedings before the Tribunal, it contends that Mr Langford’s evidence is not supported by the evidence of the native title holders and should therefore carry little weight. 

5. In support of its contention, the Government party relies on the Tribunal’s decision in WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’).  In Emergent, I considered the Tribunal’s comments in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (24 February 2011), Hon C J Sumner (‘Tarlpa’) about the role of anthropological evidence in Tribunal proceedings and went on to say the following (at [44]):

   Expert anthropological evidence may assist the Tribunal to contextualise or elucidate matters raised in the evidence of Aboriginal witnesses.  However, anthropological evidence should not be relied upon to supply information that does not appear in the primary evidence.  Anthropological evidence that relates to the nature and content of traditional laws and customs, being within the knowledge and expertise of anthropologists, may well be accepted on its own.  However, when it comes to the significance and location of particular sites the direct evidence of members of the native title party should be preferred to the evidence of anthropologists.  The probative value of anthropological evidence in these matters will depend on the extent to which it accords with the evidence of the traditional owners.  In the present matter, the evidence of the Wiluna deponents does not provide an adequate foundation on which to assess the evidence of Dr Kruse.  In the circumstances, I am not prepared to make a finding about the significance of the sites to which Dr Kruse refers, or the significance of the area in general, in the absence of corroborative evidence from members of the native title party.     

The native title party sought to challenge the Government party’s reliance on Emergent.  In its contentions, the native title party submits (at NTP Reply 778, para 2.17; NTP Reply 779, para 2.18) that the approach in Emergent is ‘overly technical or restrictive’ and should not be followed in future determinations.  The native title party submits that where evidence is both relevant and not prima facie unreliable or without foundation, it should be considered by the Tribunal.  The native title party contends that it is inappropriate not to consider expert evidence simply because it lacks an ‘adequate foundation’ in the evidence of members of the native title party.  In support of that submission, the native title party cites the High Court’s decision in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 (‘Dasreef’) concerning s 79 of the Evidence Act 1995 (Cth) and the Federal Court’s observations about the use of anthropological evidence in native title litigation in Neowarra v Western Australia (2003) 134 FCR 208 (‘Neowarra’).

1. Section 79 of the Evidence Act outlines an exception to the opinion rule in s 76, which provides that ‘[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’ Section 79(1) provides:

   If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to the evidence of an opinion of that person that is wholly or substantially based on that knowledge.

In Dasreef, the High Court identified two criteria that must be satisfied for evidence to be admissible under s 79(1):

The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”—at [32].

As the native title party has rightly pointed out, the High Court’s interpretation of s 79 and the obiter dicta of the majority in Dasreef suggests that the basis rule, being the ‘rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence’ (at [41]), does not form part of the Evidence Act.  The High Court did observe however that ‘[a] failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight’ (at [42]).  This suggests that opinion evidence will be excluded if the witness fails to show that an opinion is based on the witness’ specialised knowledge.

1. In Neowarra, Sundberg J considered the basis rule in relation to anthropological evidence in native title litigation.  Although Sundberg J noted that the Evidence Act does not incorporate the basis rule, his Honour stated (at [23]) that ‘an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge, which is in turn based on training, study or experience.’  While opinion evidence may not be excluded on the basis that the facts upon which the opinion is based have not been established by admissible evidence, Sundberg J nevertheless considered that it may affect the weight to be accorded to the opinion: Neowarra at [39]. His Honour’s approach was subsequently followed in Jango v Northern Territory (No 4) [2004] FCA 1539 (‘Jango’) and Sampi v Western Australia [2005] FCA 777 (‘Sampi’), which the native title party cited in support of its contentions.  In Jango, Sackville J stated (at [15]) that ‘it is sufficient to show that ... [the] opinion might rationally affect the assessment of the probability of the existence of facts in issue.’ However, Sackville J nevertheless found it appropriate to exclude parts of evidence given by an anthropologist about the significance of particular sites because it was based on information given to the anthropologist by Aboriginal persons the anthropologist interviewed for the purpose of the proceedings, many of whom gave evidence in the proceedings and were cross-examined. His Honour found (at [34]) that the evidence was not the product of ‘specialised knowledge based on [the anthropologist’s] training, study or experience’ but was, in fact, an ‘opinion based on his assessment of out-of-court statements made by the very people who gave evidence or who (unless they died or were ill) could have given evidence on precisely that question.’ In Sampi, French J (as he then was) explicitly stated that evidence derived from what an anthropologist has been told may be based upon hearsay and therefore based on facts not able to be proven by admissible evidence. Nonetheless, his Honour noted (at [802]) that there was ‘a sufficient quality of direct evidence from Aboriginal witnesses to enable an assessment to be made of opinions offered on the basis of that kind of material.’ His Honour acknowledged the ‘significant practical obstacles in requiring the proof of every item of factual material upon which opinions of this kind are based,’ but noted that ‘where such conclusions are offered they are assessed against the evidence which the Court has heard and the Court’s own finding indicated:’ Sampi at [803]. As these cases demonstrate, and as Deputy President Sumner observed in Tarlpa, the Federal Court has tended to given greater weight to the evidence of anthropologists where it accords with the evidence of Aboriginal witnesses: see also Neowarra v Western Australia [2003] FCA 1402 at [388]; Rubibi Community v Western Australia (No 5) [2005] FCA 1025 at [263]; Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150; at [291] to [292]. This is particularly relevant in the assessment of anthropological evidence regarding the location and significance of Aboriginal sites in the context of conducting the predictive assessment required by s 237(b).

2. The native title party’s contentions appear to suggest that the Tribunal in Emergent refused to consider Dr Kruse’s evidence.  If that is the suggestion, then it is not an accurate description of the Tribunal’s treatment of the evidence in that matter.  As [36] – [44] of Emergent demonstrate, the Tribunal gave detailed consideration to the evidence of Dr Kruse.  However, the Tribunal was not required to accept the evidence in circumstances where the witness failed to identify the basis for the opinions offered and there was no other evidence upon which the Tribunal could make an assessment of those opinions.  Nor did the Tribunal base its reasoning, as the native title party contends, on Pollock v Wellington (1996) 15 WAR 1. Rather, the Tribunal’s conclusions in Emergent were guided by the Tribunal’s discussion of Federal Court authority in Tarlpa.  The native title party appears to have placed a great deal of emphasis on the Tribunal’s statement that ‘anthropological evidence should not be relied upon to supply information that does not appear in the primary evidence’ (Emergent at [44]). With respect, the native title party (and to an extent, the Government party) have taken this observation out of context. In Emergent, I went on to note that anthropological evidence about the nature and content of traditional laws and customs, being within the knowledge and expertise of anthropologists, may well be accepted independently of evidence given by Aboriginal witnesses, at least where the latter does not contradict the former. The point I was seeking to make is that, in the context of the predictive assessment required by s 237(b), expert anthropological evidence about the existence, location and significance of Aboriginal sites may not be accorded significant weight in circumstances where the anthropological evidence is not supported by the evidence of traditional owners. This approach is consistent with Federal Court authority and previous decisions of the Tribunal: State of Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (28 July 1999), Hon E M Franklyn QC at [15]; Valerie Tambling & Ors/NT Gold Pty Ltd & Anor/Northing Territory [2002] NNTTA 209 (23 September 2002), John Sosso at [39]. More fundamentally, the approach is consistent with the requirements of s 237(b), which is directed to the significance of areas and sites in accordance with the traditions of the native title party. That is not to say that the Tribunal will not give appropriate weight to anthropological evidence where the expert has shown how the evidence is based on specialised knowledge derived from his or her training, study or experience. However, the probative value of such evidence may be limited where Aboriginal witnesses or potential witnesses are in a position to give evidence on such matters but fail to do so.

3. The Tribunal is not bound by rules of evidence and should adopt a commonsense and non-technical approach to the evidence: Ward v Western Australia (1996) 69 FCR 208 at 217-218; s 109 of the Act. However, it has been acknowledged for some time that ‘[t]he best evidence of such traditions is from a person or persons who have traditional knowledge and have the traditional authority to speak for the relevant area or site’: Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory [2002] NNTTA 212 (27 September 2002), John Sosso at [14]; cf Little v Western Australia [2001] FCA 1706. The Tribunal must accept and give suitable weight to anthropological evidence where it is relevant. However, it may not be appropriate in the context of conducting the predictive assessment required by s 237(b) to rely on anthropological evidence about the existence, location or significance of Aboriginal sites where the person or persons with the traditional knowledge and authority to speak on those matters have the opportunity to give evidence but fail to do so.

4. Dr Kruse’s evidence in the present matter principally relates to the wati kutjarra jukurrpa and the significance of Imbin Rockhole and adjacent areas.  To the extent that the evidence establishes that the wati kutjarra jukurrpa passes through E69/2606 (and perhaps through E69/2576), Dr Kruse’s evidence about its significance in the traditions of the native title party is relevant and I have given it appropriate weight.  As far as Dr Kruse’s evidence concerns the significance of Imbin Rockhole and adjacent areas, to the extent that the native title party contends, first, that the proposed licences fall within the broader area alleged to extend from Imbin Rockhole and, second, that there are sites within the proposed licence that are linked to Imbin Rockhole, the evidence is relevant and again I have given it appropriate weight.

5. In relation to the evidence of Mr Langford, the Government party contends that the basis for Mr Langford’s opinion is not disclosed and should therefore carry little weight.  The Government party points in particular to Mr Langford’s evidence regarding the Imbin Area and the effect of preventing access to waterholes.  The Government party has not suggested that I refuse to accept the evidence.  In any event, Mr Langford has sufficiently outlined the experience from which his specialised knowledge is derived and which forms the basis for his opinions.  Mr Langford states that he has been employed by Central Desert first as an anthropologist and subsequently as a land management coordinator and has spent ‘considerable time’ with members of the native title party and has assisted the native title party with land management activities in the area (at para 4-6).  Imbin Rockhole, the broader Imbin Area and the existence of waterholes on and in the vicinity of the proposed licences are matters which have been addressed in the affidavits of the Birriliburu deponents and there is an adequate foundation on which to make an assessment of Mr Langford’s opinions.  Accordingly, I accept Mr Langford’s evidence and have given it appropriate weight in these proceedings.

Contentions and Evidence provided by the Government party

1. In addition to the standard contentions and evidence it submits for all objection applications proceeding to an inquiry before the Tribunal, the Government party also lodged a statement of contentions in response to the contentions of the native title party in respect of each objection on 2 March 2012 (that is, GVP Reply 778 and GVP Reply 779).  The document rewrites and elaborates upon the original contentions provided by the Government party and includes a detailed appraisal and rebuttal of the evidence provided by the native title party.

1. As part of its standard contentions, the Government party submitted two statutory declarations signed on behalf of the grantee party stating that the grantee party offered to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party by executing an RSHA in respect of each of the proposed licences and sending them to Central Desert for execution by the native title party on 5 February 2010.

Community or Social Activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title parties (in the sense of there being a real risk of interference): see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith v WA’).  Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith v WA at 451 [26]. The assessment if also contextual taking account of other factors which may already have had an impact on the native title party’s community or social activities (such as mining or pastoral activity): Smith v WA at 451 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, ss 20(5) in relation to pastoral leasehold, the additional conditions and endorsements outlined above, and the fact that there are no Aboriginal communities situated on the proposed licences, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. The Government also contends that the grantee party’s willingness to enter into an RSHA with the native title party indicates its intention to consult with the native title party and avoid activities likely to interfere with the community or social activities of the native title party.

3. In relation to s 237(a), the native title party makes the following submissions:

   ·there is a community of native title holders in the area – NTP 778, para 3.10 / NTP 779, para 3.10;

   ·the area of the proposed licences forms part of the ‘Imbin Area’ – NTP 778, para 3.11(a), 3.13(a) / NTP 779, para 3.11(a), 3.13(a);

   ·the area of the proposed licences and the surrounding area was traditionally and continues to be an important area for hunting due to the presence of waterholes and proximity to a significant Martu law ground – NTP 778 para 3.11(b)-(d), 3.13(e)-(f) / NTP 779, para 3.11(b)-(c), ;

   ·an important source of ochre for the conduct of law business at a nearby law ground is located on E69/2576 and is a key component of law business, including in the initiation of Martu people – NTP 778, para 3.11(e), 3.13(c), 3.14(a)-(b);

   ·access or damage to the ochre source could adversely affect any future law business – NTP 778, para 3.12(a);

   ·damage or restriction of access to waterholes will interfere with the ability of native title holders to access water while in the area and interfere with the ability of native title holders to travel through the area and hunt – NTP 778, para 3.12(b)-(f), 3.14(c), 3.14(e)-(f) / NTP 779, para 3.12(a)-(e), 3.13(e)-(f), 3.14(d);

   ·Martu people traditionally travelled through the ‘Imbin area’ by following the path of the jukurr and waterholes, and native title holders continue to follow this route when travelling through the area – NTP 778, para 3.13(b) / NTP 779, para 3.13(b), (g);

   ·the ‘Imbin Area’ is a specific focus of caring for country and land management activities, including cleaning of waterholes, regulation of access by outsiders and inter-generational knowledge transfer – NTP 778, para 3.13(g)-(h) / NTP 779, para 3.13(h)-(i);

   ·damage to waterholes will result in a reduction in the number and species of animals, resulting in interference with the ability of native title holders to care for country through activities such as maintaining and promoting biodiversity – NTP 778, para 3.14(c)-(d) / NTP 779, para 3.14(a)-(b); and

   ·the right to negotiate is required so that meaningful consultation and negotiations between the Native Title Party and the Grantee party occurs to ensure that community and social activities are not likely to be interfered with – NTP 778, para 3.15 / NTP 779, para 3.15.

4. In its contentions in response, the Government party submits (at GVP Reply, para 51; GVP Reply 779 para 53) that the evidence of the social or community activities asserted by the native title party (such as hunting, travelling over the proposed licence area and in the case of E69/2576, gathering ochre) does not provide sufficient information to ascertain how often or where these activities occur (presumably, apart from the ochre site), what is involved, or the number or identity of participants.  Nevertheless, the Government party accepts that the asserted activities occur at least to some extent on or near the proposed licences.  The Government party states that it does not dispute that some ‘caring for country activities’ occur near the proposed licences but submits (at GVP Reply 778 and GVP Reply, 779, para 53) that there is limited direct evidence of what ‘caring for country activities’ are or when and where they occur.  Furthermore, the Government party submits that there is not sufficient direct or indirect evidence of ‘regulation of access of outsiders’ or ‘inter-generational knowledge transfer’ to support any finding about that these activities entail or whether they occur in the vicinity of the proposed licences.  The Government party does not dispute that law business has occurred at Imbin Rockhole.

5. Based on the evidence before me, I accept that members of the native title party hunt on and in the vicinity of the proposed licences.  Although it is not addressed in the native title party’s submissions, there is also some evidence of camping on the proposed licences and the surrounding area.  I also accept that members of the native title party gather ochre from E69/2576 and that the ochre is used for law business at Imbin Rockhole.  However, due to the limited nature of the evidence adduced by the native title party, I am unable to find that the native title party makes extensive use of the proposed licences for the purpose of carrying on these activities.

6. In relation to travel through the proposed licences and the Imbin Area in general, the native title party relies for the most part on the evidence of Mr Langford.  There are a number of difficulties with the native title party’s evidence on this point.  Mr Langford states (at para 15) that Martu people ‘prefer to follow the culturally appropriate route along the songlines, following the waterholes.’  However, the evidence of the native title holders, including that of Mr Thompson, suggests that the wati kutjarra jukurrpa only traverses E69/2606.  Mr Frankie Wongawol states that the jukurrpa also passes through E69/2576, but he is the only one of five native title holders who gave evidence in this matter to do so.  The A3 map submitted by the native title party introduced a further complication, as it shows that the wati kutjarra travels through the general area but does not pass through either of the proposed licences.  Although the issue was not addressed in formal submissions, the native title party explained in a directions hearing that the line on the map representing the path of the jukurrpa is merely an extrapolation made by an anthropologist based on the location of sites that are considered to be connected with the songline and do not correspond to the actual path taken by the jukurrpa.  Neither the Government party nor grantee party sought to contest that submission and I accept it.  However, as the evidence establishes that Mr Thompson is the main person to speak for the country, I am inclined to conclude that the jukurrpa only passes through E69/2606.  Accordingly, while I accept that native title holders following the traditional route travel over E69/2606, I am unable to find that, by following the traditional route, native title holders will cross through E69/2576.

7. There is some evidence, principally from Mr Langford, but also from Mr Maurice Wongawol and Mr Thompson, that caring for country and land management activities are carried out on or near the proposed licences. According to Mr Langford, these activities are associated with the Imbin Area, which is distinct from Imbin Rockhole in that it is said to encompass the broader area surrounding the site. As the dimensions of the Imbin Area and its significance have been the subject of controversy in this matter, particularly in relation to s 237(b), I deal with this question a later point. For the time being, it will suffice to assume that the activities referred to by Mr Langford take place on what he understands to be the Imbin Area (namely, an area which includes the proposed licences and the area between them) without reaching a conclusion on the size and significance of the area. I also note that Mr Frankie Wongawol describes ‘Imbin’ as being ‘around two days [sic] walk (maybe 60 kilometres) from the rockhole’ (at para 6), though it is unclear whether he is referring to a radius around the rockhole, the diameter of the Imbin Area or a specific direction travelled.

8. Mr Langford states (at para 18) that the Imbin Area has become a ‘specific focus of caring for country activities’ with the removal of past restrictions on access, in part as a result of the State’s acquisition of the former pastoral lease.  Mr Langford states (at para 20) that formal trips are made to the area five times a year, in addition to regular usage in the course of regular community and social activities, and describes a visit in June 2011 in which he assisted native title holders with burning country.  Mr Langford also states (at para 19) that he has been informed by Martu people that native title holders travel through the area to clean and maintain waterholes, though he does not state whether he has participated in or assisted with this activity.  The evidence of the native title holders in this matter is somewhat limited in relation to these activities.  Mr Maurice Wongawol (at para 13) states that ‘we go out there working to look after the country,’ but does not explain how frequently these visits occur, the number or identity of the participants, or to what extent these activities are conducted on the proposed licences.  Mr Norman Thompson refers to the importance of waterholes in the area, but does not refer to any of the caring for country activities associated with these sites.  Although the native title party’s evidence has not been of great assistance in resolving this issue, I am prepared to find that caring for country activities (such as maintaining waterholes and burning) are carried out in the area surrounding the proposed licences and are likely to have taken place (and continue to take place) on the proposed licences.  Nevertheless, the evidence does not establish that the proposed licences have been used extensively for the purpose of carrying on these activities.

9. Under the category of caring for country activities, Mr Langford also states that the native title holders carry out activities aimed at regulating access to the Imbin Area and passing on knowledge about country. With respect to the latter activities, Mr Langford states (at para 24) that the Imbin Area has in his experience ‘proved vital for intergenerational transfer of knowledge between Martu people.’ However, Mr Langford does not describe what the ‘intergenerational transfer of knowledge’ involves and how frequently such activities are carried on in and around the proposed licences. The video annexed to Mr Langford’s affidavit shows Mr Robert Wongawol explaining the importance of passing on knowledge of the law; however, Mr Wongawol does not describe the activities actually carried out by the native title party. None of the other native title holders give evidence about these activities. In the circumstances, I am unable find that such activities occur on the proposed licences in a meaningful way. As far as Mr Langford’s evidence regarding the regulation of access in concerned, I accept that activities aimed at enforcing the native title party’s right to exclusive possession such as erecting signs fall within the concept of ‘social and community activities.’ However, s 237(a) cannot support a finding that the grant of the proposed licences is likely to interfere directly with the native title party’s ability to regulate access unless the proposed exploration activity is likely to interfere with the activities it carries on to achieve that objective. Mr Langford’s evidence indicates that activities of this nature (such as the erection of signs and the establishment of camps and water sources for tourists) have been carried out in the Imbin Area. However, there is no evidence to suggest that these activities have taken place on the proposed licences, though it is reasonable to suppose that the native title party may carry on such activities in the future, particularly in relation to the sites discussed below.

10. The next issue to be determined is whether the grant of the proposed licences is likely to result in direct interference with these activities. The Government party contends (at GVP Reply 778 and GVP Reply 779, para 54(a)) that hunting and exploration are ‘by their nature, inherently capable of coexistence,’ and submits that ‘[a]lthough from time to time the Grantee Party and the Native Title Party may come across one another in the course of their activities in the proposed tenement area, it is not apparent that the activities of the Native Title Party will thereby be prevented or disrupted to any significance extent.’ The Government party makes the similar submission regarding the asserted restrictions on access to waterholes and consequential interference with travel through the proposed licences. Specifically, the Government party submits (at GVP Reply 778 and GVP Reply 779, para 54(b)) that ‘the small risk that native title holders may wish to travel across the precise place where the Grantee Party may be present on any given day (i.e. that access to that spot is physically barred because there is a vehicle or a person occupying it) is not substantial enough to constitute interference in the section 237(a) NTA sense.’ In its contentions in response, the native title party submits that, when considering the likely impact of exploration activities on the community or social activities of the native title party, the Tribunal should take into account the fact that, as the grantee party has not provided any contentions in this matter, the extent of the proposed activities is not known and could therefore be significant. The native title party also disputes the Government party’s submission that any interference caused by the proposed exploration activity would be the same as, or no more significant than, the previous and continuing use of the area, referring to Mr Langford’s evidence that access to and use of the Imbin Area by native title holders has increased since the cessation of pastoral activities in the area. I note however that the proposed licences (and by extension, the broader Imbin Area) have been subject to recent exploration activity as noted at [15] above.

11. The size of the Birriliburu determination area (66,709.81 square kilometres) suggests that it is less likely that the grant of the proposed licences will interfere with the native title party’s community or social activities.  However, the evidence establishes that the Imbin Area is an important area for hunting, given its proximity to Imbin Rockhole and the distribution of waterholes throughout the area, and is a ‘specific focus’ for caring for country activities carried on by native title holders.  Nevertheless, the evidence also indicates that the Imbin Area encompasses a reasonably broad area.  None of the evidence suggests that hunting is specifically connected with any area within the proposed licences.  Nor am I satisfied that the exploration activity on the proposed licences will lead to a reduction in the number of animals in the area and thereby result in direct interference with hunting or caring for country.  Although there is no evidence of the type of activity the grantee party intends to carry out on the proposed licences and I must therefore assume that the grantee party will fully exercise its rights under the Mining Act (Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239 (23 June 2000), Hon E M Franklyn QC at [34]-[35] (‘WA v Smith’), I do not consider that interference with hunting will be substantial, particularly as there is little evidence of the frequency with which the proposed licences are enjoyed for this purpose.  I accept that the native title holders visit the proposed licences from time to time for the purpose of maintaining waterholes and collecting ochre, but given the typically intermittent nature of exploration activity, I am not satisfied that the activities of the grantee party will interfere with the native title party’s access to waterholes or the ochre site in a substantial or more than trivial way.  Nor will the grantee party’s activities substantially interfere with the erection of signs and other activities aimed at regulating access to the area.  Similarly, while I accept that the activities of the grantee party may interfere with travel through the proposed licences in accordance with tradition and custom by obstructing the path or by preventing access to waterholes at particular times, the evidence provided by the native title party does not provide a sufficient basis on which to assess the degree of interference that might be caused to native title holders travelling through the area using the traditional route described by Mr Langford.  In any event, I do not consider that such interference is likely to be substantial.  

12. I accept that certain kinds of interference with the ochre site may result in direct interference with the gathering of ochre and consequently with the carrying on of law business at Imbin Rockhole; however, this issue is inextricable from the question of whether there is a real risk of interference with sites of particular significance and is dealt with below.

Sites of Particular Significance (s 237(b))

1. In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [14], the Register kept under the AHA shows there are no registered sites within the proposed licences, but this does not mean there may be sites or areas of particular significance to the native title party over the tenement areas or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the AHA and ss 20(5) and 63 of the Mining Act, and the grantee party’s willingness to enter into an RSHA with the native title party, to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether the protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

1. In relation to s 237(b), the native title party makes the following submissions:

   ·The proposed licences contain sites of particular importance – at NTP 778 and 779, para 4.24;

   ·The nature and number of sites and areas of particular significance within and around the proposed licences reduces the utility of an endorsement on the grant of the proposed licence drawing the grantee party’s attention to the AHA and it is incorrect to assume that interference would be unlikely – at NTP 778 and NTP 779, para 4.27;

   ·The proposed condition requiring the grantee party to offer the RSHA does not mean that it is unlikely that the proposed licences will interfere with sites or areas of particular significance – at NTP 778 and NTP 779, para 4.28; and

   ·The right to negotiation is required so that meaningful consultation and negotiation between the native title party and the grantee party occurs to ensure that sites or areas of particular significance are not likely to be interfere with – at NTP 778 and NTP 779, para 4.29.

2. With respect to E69/2606, Mr Thompson, Mr Maurice Wongawol, Mr Timmy Wongawol and Mr Frankie Wongawol state that there is a site to the north of E69/2606 called Mount Oolongathoo which is considered ngulu or dangerous.  Mr Thompson also states that access to Mt Oolongathoo is restricted to initiated men and the site ‘has stories that go out west’ (at para 7).  Mr Maurice Wongawol refers to caves in the hills surrounding Mt Oolongatho that are also ngulu, but states that he cannot talk about them (at para 7).  Mr Frankie Wongawol also states (at para 8) that the site is connected with a jukurrpa that runs northward from the hills, although none of the other Birriliburu deponents refer to the jukurrpa.  Mr Langford deposes (at para 27) that he has been informed by senior Martu elders that there is a range coming across the northern part of the proposed licences, parts of which are considered ngulu for women and uninitiated men, though he does not identify the elders with whom he spoke.

3. With respect to E69/2576, Mr Timmy Wongawol refers to an ‘important place for ochre’ (at para 8). He deposes that ‘on the map it is near Nungenoo Pool.’ Mr Thompson states that there is a big pool on the tenement which is a special place used for collecting ochre which is very important for law business. He indicates his reluctance to discuss the issue because it is secret (at para 11-12). Mr Maurice Wongawol says there is ‘an important place for ochre on the tenement which is used for law business’ (at para 9). Mr Frankie Wongawol states that ‘there is a place in this tenement with water, like a pool. There is ochre here which is used in men’s ceremonies and law business’ (at para 16). He states it is a very special place for men only. He further deposes that the wati kutjarra jukurrpa continues through this proposed tenement area from east to west but that only wati can tell where it travels (at para 13). The affidavit of Mr Ashwin makes no specific reference to E69/2576 or ochre and is therefore of no assistance in relation to this proposed tenement. Neither Dr Kruse nor Mr Langford makes reference to the ochre site. On the basis of the evidence of Messrs Timmy, Frankie and Maurice Wongawol and Mr Thompson I can conclude that there is an important ochre site on E69/2576. However, its location is uncertain. Mr Timmy Wongawol says it is ‘near’ Nungenoo Pool. Mr Frankie Wongawol says the ochre site is the pool, but does not identify it as Nungenoo Pool or near it. Mr Thompson says the ochre site is a ‘big pool’ but again does not relate it to Nungenoo Pool or any other specific location within the proposed tenement area. Mr Maurice Wongawol makes no reference to a pool, only that there is an important ochre site on the proposed tenement. The maps provided by the Government party and the native title party only note one feature within the area of the proposed tenement, which is Nungenoo Pool. The evidence of Mr Timmy Wongawol might allow the reasonable inference that the ochre site is near Nungenoo Pool, however neither Mr Thompson to whom Mr Timmy Wongawol specifically defers nor the other senior men (Messrs Frankie and Maurice Wongawol) refer to Nungenoo Pool. There may be other ‘big pools’ in the area but I have no evidence to that effect. All the evidence suggests that whatever its location, the site is the source of the ochre which is obtained for the conduct of law business at the ceremonial grounds at Imbin Rockhole. Importantly, the evidence does not allow me to say exactly where it is. I cannot safely conclude that it is Nungenoo Pool because the only deponent who refers to Nungenoo Pool says it is ‘near’ (not at) it. The others refer to a big pool but make no mention of Nungenoo Pool. For the purposes of this inquiry I conclude that there is an ochre site at or near Nungenoo Pool. Whether the evidence supports a finding that it is a site of particular significance pursuant to s 237(b) is discussed below.

4. The native title party also asserts that the proposed licences are located in a site rich area.  In support of that contention, the native title party makes the following submissions:

   ·The proposed licences are part of the Imbin Area – at NTP 779, para 4.25 (a);

   ·The proposed licences are located near a law ground which is connected to the Wati Kutjara – at NTP 778, para 4.25(a)-(b) / NTP 779, para 4.25(d);

   ·The law ground was used by Martu from other areas, not just by the native title holders, and therefore has regional significance – at NTP 778, para 4.25(d) / NTP 779, para 4.25(e);

   ·The Wati Kutjarra travels across the Imbin Area, imbuing the Imbin Area with particular significance – at NTP 778, para 4.25(c) / NTP 779, para 4.25(b);

   ·There is rock art in the Imbin Area associated with the Wati Kutjara – at NTP 778, para 4.25(e) / NTP 779, para 4.25(c);

   ·Parts of the Imbin Area are ngulu (secret, forbidden) for women and access to those areas needs to be controlled to prevent interference – at NTP 778, para 4.25(f) / at NTP 779, para 4.25(f);

   ·There are a number of sites and areas in the Imbin Area to which access is strictly regulated or controlled.  Access to these sites and areas required a properly constituted group of people – at NTP 778, para 4.25(g) / NTP 779, para 4.25(g); and

   ·The cultural landscape of the Imbin Area, which includes the proposed licences, has significance due to the existence of a traditional access route, based on waterholes and jukurr, which is still used by the native title holders today – at NTP 778, para 4.25(h) / NTP 779, para 4.25(h).

5. The Government party rejects the native title party’s assertion that the area is site rich and contends that the term ‘site rich’ is not a defined term or identifiable legal test which arises out of previous Tribunal decisions. The Government party further submits (at GVP Reply 778 and GVP Reply 779, para 72) that merely asserting an area is site rich is ‘of no forensic value’ and should not ‘circumvent the need to establish by evidence that section 237(b) does or does not apply.’

6. I recently addressed the Tribunal’s use of the term ‘site rich’ in Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd (2012) NNTTA 24 (14 March 2012) (‘Geotech International’) and made the following observations (at [43]):

   There can be no suggestion that the existence of a significant number of sites which do not individually have the requisite level of particular or special significance to the native title party according to its traditions can become an additional ‘cumulative’ category of sites of particular significance which might be conveyed by the term site rich. In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance [sic], in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely. On that point, I accept the Government party’s contention that the use of the term ‘site rich’ is of no value to the Tribunal in the exercise of its predictive assessment.

As I made clear in that determination, the focus of the inquiry in relation to s 237(b) is whether the evidence establishes, first, the existence of sites of particular significance and, second, that the act poses a real risk of interference with those sites. The Tribunal’s use of the term ‘site rich’ in previous determinations reflects an evidentiary conclusion about the existence of sites or areas of particular significance and the likelihood of interference.

1. In this respect, the native title party’s submissions would be more properly directed to the question of whether the Imbin Area constitutes an area of particular significance. Indeed, in making its submissions about the site rich character of the area, the native title party emphasises the significance of the Imbin Area and its connection with the Wati Kutjara. It is necessary therefore to determine whether the evidence establishes that the Imbin Area is an area of particular significance within the meaning of s 237(b). Mr Thompson, Mr Maurice Wongawol, and Mr Timmy Wongawol all refer to Imbin, ‘that Imbin place’ or ‘that Yimbin place,’ but appear to refer to the rockhole rather than the larger area on which the native title party’s submissions are based. All three give evidence to the effect that the proposed licences are ‘near a really special place,’ but do not give a clear indication of whether the proposed licences fall within a broader area of significance. Similarly, Mr Ashwin states that the proposed licences are ‘a bit away from that law ground, they are still too close’ (at para 7). As discussed above, Mr Frankie Wongawol specifically states that the proposed licences fall within a broad area known as ‘Imbin,’ which he describes as being ‘around two days [sic] walk (maybe 60 kilometres) from the rockhole.’  Although Mr Wongawol is the only native title holder to specifically refer to this broader Imbin Area, to the extent that his evidence is not inconsistent with the evidence of the other native title holders, some weight should be given to the fact his affidavit was made in the presence of other initiated men.  It is possible to infer on that basis that his evidence regarding the Imbin Area was given with their approval and consent. 

2. Mr Langford deposes that in his experience ‘Martu people use the word “Imbin” to describe not only Imbin Rockhole, but a much wider area’ and goes on to state that ‘it is my understanding that the Imbin Area includes the area of tenement applications E69/2026 [sic] and E69/2576...and the area in between the Tenements, including Imbin Rockhole’ (at para 8).  The Government party contends that the basis for Mr Langford’s opinion on this issue has not been disclosed and that his opinion is not supported by the evidence of the native title holders and should therefore be accorded little weight.  In reply, the native title party state that Mr Langford’s experience working with the native title holders as an anthropologist and land management coordinator qualify him to give evidence about the area surrounding Imbin Rockhole.  I accept that Mr Langford’s training and experience provide a basis for his evidence about the size of the Imbin Area.  However, Mr Langford’s evidence is of considerably less assistance to the Tribunal in relation to the significance of the Imbin Area in the traditions of the native title party.  In particular, Mr Langford’s evidence does not assist the Tribunal to determine whether a distinction can be drawn between Imbin Rockhole (and the area immediately surrounding the site) and the broader ‘Imbin Area.’  The point is underscored by Mr Langford’s evidence that the ‘Imbin Area’ is sometimes referred to as ‘Earaheedy,’ which suggests a degree of slippage between the traditional conception of ‘Imbin’ and the former pastoral lease.  The video evidence annexed to Mr Langford’s affidavit, which shows Mr Robert Wongawol describing the dimensions of the Imbin Area does not contribute much in this regard, except to suggest that ‘Imbin’ encompasses an area stretching to Glenayle station in the north, Cargenie station in the east and Wongawol station to the south, and more or less corresponds to the area known as Sydney Head.

3. The significance of the broader Imbin Area is addressed in the affidavit of Dr Kruse.  Dr Kruse deposes that he has visited Imbin Rockhole several times with senior Martu people, who explained to him that Imbin Rockhole is ‘a place of great cultural importance because of the Jukurrpa associated with it’ (at para 22).  Dr Kruse further deposes that he was told that the Imbin Area has significance ‘because it was a key meeting and camping place for Martu people in the mid twentieth century as they moved in from the desert to Wiluna or nearby pastoral properties’ (at para 20).  Dr Kruse also states that the native title holders explained to him that Martu people were able to ‘converge and meet’ at Imbin Rockhole by following Jukurrpa stories, such as the Wati Kutjarra to guide them to Imbin (at para 21).  Dr Kruse also gives evidence about a visit to Imbin Rockhole on 1 November 2004, where key Martu elders explained to him that the Wati Kutjarra is associated with Imbin, that the jukurr travelled from Wiluna through Imbin Rockhole and further east, and that consequently the area around and including Imbin Rockhole is of particular significance.  Dr Kruse does not state whether the area referred to corresponds to the Imbin Area as understood by Mr Frankie Wongawol, Mr Robert Wongawol and Mr Langford. 

4. In this respect, Dr Kruse’s evidence is similar to evidence he gave in Emergent.  In particular, Dr Kruse seeks to make the same distinction between the significance of country understood as generally formed in the creative epoch by mythic beings, and areas and locations associated with the specific activities of mythic beings and the significance of their actions on the Martu way of life.  As in Emergent, he deposes that to the fact that areas and locations associated with the specific activities of mythic beings are typically deemed the most culturally significant by Martu people and their protection is considered paramount. He states (at para 10) that ‘[t]his is the basis by which Martu people distinguish country which is generally spiritually significance – as Martu religion is intrinsically linked to land and country – from specific culturally significant areas requiring protection from activities that are perceived to cause damage or harm.’ 

5. In Emergent, I took the following view of Dr Kruse’s evidence:

   It would seem to me to be reasonable on the basis of this classification to come to the conclusion that the areas the subject of the unspecified dreaming tracks within the proposed tenement area are areas which might be deemed to be generally significant, whereas, arguably, the sites, particularly the Tarlka site, and Mt Bartle and Mt Russell, could be regarded, being manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore of particular significance to the Martu people.  If such a distinction were not drawn, it would be, on the argument of Dr Kruse, necessary to characterise all Martu land, including the land which is covered by the current application, as of particular significance to the Martu people.  

6. I consider it appropriate to adopt that analysis in the present inquiry.  The evidence establishes that Imbin Rockhole is a site of particular significance according to the traditions of the native title holders.  However, the evidence does not support a finding that the Imbin Area has the same status.  Mr Frankie Wongawol’s evidence clearly indicates that there is a broader area of significance which the native title holders refer to as Imbin.  The evidence of Mr Langford, including his discussion with Mr Robert Wongawol, supports this conclusion.  However, the evidence of the other Birriliburu deponents suggests that their principal concern is the proximity of the proposed licences to Imbin Rockhole rather than interference with the Imbin Area as such.  It is clear that the wati kutjarra travels through the Imbin Area.  As I noted in Geotech International, dreaming tracks may be regarded as sites of particular significance but that will depend on the evidence presented in any particular case (see Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 (14 May 2007), Hon C J Sumner at [44]-[47]). However, on the basis of the evidence presented in this matter and for the reasons stated above, I do not accept the native title party’s contention that the wati kutjarra ‘imbu[es] the area with particular significance.’ The evidence about the existence of ngulu sites within the Imbin Area demonstrates the importance of the distinction drawn by Dr Kruse.  Mr Ashwin states that there are areas around Imbin Rockhole that are ngulu and that women have to be careful in those areas.  The native title party submits that access to these areas needs to be controlled to prevent interference.  I do not consider that the native title party has provided sufficient evidence about the nature or location of these areas to support a finding about their significance, and I accept the Government party’s submission that not all ngulu sites are necessarily sites of particular significance.  However, the fact that there may be places within the Imbin Area that are considered more significant or in need of greater protection that others suggests that a line needs to be drawn between specific sites and areas and the broader Imbin Area in which they are situated.  In the circumstances, I do not consider that the evidence establishes that the broader Imbin Area is an area of particular significance according to the traditions of the native title party. 

7. As s 237(b) is concerned with the significance of sites and areas within the traditions of the native title party, the assertion that the Imbin Area has ‘regional significance’ is not relevant to the inquiry. Similarly, the evidence that members of the native title party and other Martu groups travel through the area following the jukurrpa and waterholes does not necessarily demonstrate that the area is particularly significant, and in any case is better directed to s 237(a).

8. Nevertheless, while the evidence does not establish that the Imbin Area has particularly significance according to the traditions of the native title party, I am satisfied that the evidence supports a finding that Mt Oolongathoo is a site of particular significance.  Each of the Birriliburu deponents identifies Mt Oolongathoo as a dangerous or secret site and is reluctant to discuss it openly.  Mr Frankie Wongawol states that the site is associated with another jukurrpa travelling northwards through the proposed licences, and although he is the only member of the native title party to identify the mythological basis for the site’s significance, he states that he does so in the presence of 13 other initiated men.  Mr Wongawol’s evidence on this point is not inconsistent with the evidence of the other Birriliburu deponents and I am prepared to accept it on that basis.  However, I am not satisfied on the evidence before me that the caves surrounding Mt Oolongathoo deposed to by Mr Maurice Wongawol are particularly significant.  While I accept that the caves may be associated with Mt Oolongathoo, there is insufficient evidence about their individual significance to support a finding of that kind. 

1. In relation to the ochre site on E69/2576, I am also prepared to find that it is a site of particular significance to the native title party.  The evidence establishes that it is the source of ochre which is vital to the conduct of ceremonial activity at the Imbin Rockhole ceremonial ground.  I do not come to this finding without a significance degree of hesitation associated with the uncertainty of the exact location of the site within the proposed tenement area.  It is incumbent upon the native title party in proceedings of this nature to provide clear evidence of the location and importance of a site if they are to establish the particularity of its significance in accordance with their traditional law and custom.  The Tribunal has often found that it cannot find that a site is of particular significance because the evidence adduced was of insufficient specificity including in relation to its exact location (see Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 (18 August 2010), Daniel O’Dea at [42]-[43]). However, where the evidence is otherwise compelling and comprehensive a finding as to the particular significance can be made notwithstanding a lack of precise identification of location by the native title party (see Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (15 September 2010), Daniel O’Dea at [41]-[43]). As I concluded at [52] above, the ochre site is at or near Nungenoo Pool.

2. I note the conditions the Government party will impose on the grant of the proposed licences and the grantee party’s execution of a RSHA in relation to the proposed licences, which will prevent it from undertaking ground-disturbing activities without the conduct of heritage surveys involving native title holders.  I also note the condition referred to in the Government party’s contentions at para 5(f) which would require the grantee party to renew the offer to enter into such an agreement with the native title party within 90 days of the grant of the proposed licences. 

3. In its submissions, the native title party contends that the RSHA permits ‘Non-Ground Disturbing Activity,’ including the use of hand tools for sampling purposes and the establishment of tent or caravan camps not involving heavy vehicles or water bores, that it considers capable of interfering with sites or areas of particular significance. In particular, the native title party argues (at NTP 778 and NTP 779, para 4.27(b)) that rock chip sampling would constitute interference with sites within the proposed licences and the surrounding areas. It is arguable that activities such as rock chip sampling would in certain situations result in interference of the kind contemplated by s 237(b). However, it is clear that such activities, notwithstanding the provisions of the RSHA, are also subject to the AHA and consequently any unauthorised interference would constitute an offence.

4. The native title party made a number of contentions based on the assertion that unauthorised entry onto the proposed licences and adjacent areas would result in interference within the meaning of s 237(b). Several of these submissions were made on the basis of the pervasive spirituality of the country surrounding the proposed licences, while others were directed to the need to regulate access to specific places within the Imbin Area. In particular, the native title party argued that unauthorised access may result in interference where access to and information about specific places is restricted to people of a certain gender or status. The native title party contends that, in these circumstances, the RSHA will not prevent interference and questions the utility of an endorsement drawing the grantee party’s attention to the AHA. I have already dealt with the question of the significance of the broader Imbin Area, and I do not accept the native title party’s contention that the fabric of the country on, and immediately adjacent to, the proposed licences is such that unauthorised entry will result in the kind of interference contemplated by s 237(b). However, I do accept that access to restricted areas without consultation with the native title party may result in interference. This is particularly relevant for Mt Oolongathoo, access to which is restricted to initiated men.

5. The Government party has provided evidence in the form of two statutory declarations signed on behalf of the grantee party indicating its willingness to enter into an RSHA with the native title party in respect of the proposed licences.  The grantee party however has not provided any contentions or evidence relevant to its intentions.  In the absence of evidence to the contrary, I must assume that the grantee party will fully exercise its rights under the Mining Act (see WA v Smith at 51 [34]-[35]).

6. The Government party submits that to the extent that Mt Oolongathoo and the ochre site are sites of particular significance, the grantee party is aware of the existence of those sites (if for no other reason that they have been the subject of evidence produced in this inquiry) and of its legal obligations in respect of those sites.  The Tribunal is entitled, in the absence of evidence to the contrary, to rely on a presumption of regularity that the grantee party will not act contrary to law: see Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffith Money [2011] NNTTA 91. No evidence has been produced in this inquiry to suggest that the grantee party will not comply with the regulatory regime. I accept that the grantee party has been put on notice about the existence of Mt Oolongathoo and the ochre site and will observe all relevant laws and regulations in relation to those sites.

7. In relation to Mt Oolongathoo, it is clear from the evidence of the Birriliburu deponents that access to the site is restricted to initiated men, and Mr Langford gives anecdotal support to the conclusion that at least parts of the area are considered ngulu for women and uninitiated men.  In reaching this finding, considerable weight has been given to the fact that Mr Wongawol made his affidavit in the presence of other initiated men.  I note that Mr Wongawol only filed his affidavit in response to the Government party’s assertion that the evidence of the native title party was insufficiently specific.  After the filing of his affidavit, the Government party withdrew its application for an on-country hearing.  In the circumstances, I find that Mt Oolongathoo is a gender-restricted site.

8. In light of these restrictions on access to Mt Oolongathoo, compliance with relevant laws and regulations may not be sufficient to prevent interference to that site.  It will be difficult for the grantee party to avoid interference with the site without consulting the native title party.  In the absence of evidence about the grantee party’s intentions, I cannot find that the protective regime will eliminate what is a real risk of interference with Mt Oolongathoo.  Therefore, after careful consideration of the evidence, I find that there is a real risk of interference with sites of particular significance within E69/2606.

9. Although the native title party has sought to assert that the ochre site is secret, the evidence is less conclusive than that the native title party has provided in relation to Mt Oolongathoo.  While Mr Thompson deposes that the site is secret, only Mr Frankie Wongawol deposes that the site is restricted to men only.  Notwithstanding the lack of specific information about the ochre site’s location I am of the view that the risk of interference to the ochre site, particularly from so-called ‘non-ground disturbing activities,’ is significantly less than that posed to Mt Oolongathoo given the conditions to be imposed by the Government party on the proposed licence and the terms of the RSHA.  The grantee party is on very clear notice that there is a site of particular significance to the native title party in the vicinity of Nungenoo Pool and must take prudent steps to avoid interference with it.  Consequently, I find that it is not likely that there will be interference with sites of particular significance within E69/2576.

Major Disturbance to Land and Waters (s 237(c))

1. The native title party has not adduced any evidence or made any contention in relation to s 237(c) and has ‘amended’ its objection to remove any reference to that section of the Act. The only material before me in relation to this matter is the Government party’s contentions and the evidence submitted in support of those contentions and I am satisfied on that basis that the grant of the proposed licences are unlikely to result in disturbance of the kind contemplated by s 237(c).

Determination

1. The determination of the Tribunal is that:

   ·the grant of Exploration Licence E69/2576 to Murchison Metals Ltd is an act attracting the expedited procedure; and

   ·the grant of Exploration Licence E69/2606 to Murchison Metals Ltd is not an act attracting the expedited procedure

Daniel O’Dea
Member
8 May 2012