Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another - [2016] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (26 April 2016)

Application No: WO2015/0005

IN THE MATTER of the Native Title Act1993 (Cth)

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

Billy Atkins and Others on behalf of Gingirana (WC2006/002) (native title party)

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Drillabit Pty Ltd (grantee party)

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The State of Western Australia (Government party)

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

Tribunal:  Ms H Shurven, Member
Place:  Perth
Date:  26 April 2016

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

Legislation:Native Title Act 1993 (Cth), ss 31, 109, 151(2), 162(2), 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA), s 51C(c)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Annie Milgin and Others on behalf of Nyikina Malgana v Dempsey Minerals Ltd and Another, [2015] NNTTA 19 (‘Miligin v Dempsey’)
Balanggarra Aboriginal Corporation Registered Native Title Body Corporate v Valperlon Bulk Commodities Pty Ltd and Another [2014] NNTTA 113 (‘Balanggarra Aboriginal Corporation v Valperlon’)
Violet Drury and Others on behalf of Nanda People/Western Australia/Bywood Holdings Pty Ltd [2002] NNTTA 171 (‘Drury v Bywood’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Ngarrawanji Native Title Claimants and Koongie-Elvire Native Title Claimants v Sammy Resources Pty Ltd and Another [2015] NNTTA 2 (‘Ngarrawanji Native Title Claimants v Sammy Resources’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another [2015] NNTTA 30 (‘Yurriyangem Taam v Baibao Resources’)

Representatives of the Mr Malcolm O’Dell, Central Desert Native Title Services Limited

native title party: Ms Gemma Wheeler-Carver, Central Desert Native Title Services Limited

Representatives of the Ms Sarah Power, State Solicitor’s Office

Government party Mr Michael McMahon, Department of Mines and Petroleum

Representative of the Greg Abbott, M & M Walter Consulting
grantee party: Jeff Woodman, M & M Walter Consulting

REASONS FOR DETERMINATION

This decision considers whether the State Government of Western Australia can grant exploration licence E52/3088 to Drillabit Pty Ltd without the normal requirement for negotiations with the Gingirana people. The licence is located 151 kilometres south of Newman in the Shire of Meekatharra and the entire 93 graticular blocks (approximately 260.40 square kilometres) of the licence is overlapped by the Gingirana registered native title claim. The public notice issued for the licence included a statement that indicated the State considers the negotiating parties need not negotiate in good faith with a view to obtaining the agreement of relevant native title parties to the grant of the licence, and that the expedited procedure should apply instead. Gingirana lodged an objection with the National Native Title Tribunal against the assertion of the expedited procedure on this licence.
My task is to determine whether the grant of the licence is an act attracting the expedited procedure (in which case the State can grant the licence to Drillabit without negotiations with Gingirana) or is not an act attracting the expedited procedure (meaning Drillabit, Gingirana and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence). My decision on this must rest on the criteria set out in s 237 of the Native Title Act ('the Act'). Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Gingirana;
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holders; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Accompanying Gingirana’s statement of contentions were the affidavits of Mr Slim Williams and Mr William Henry Kruse. Mr Williams states he is a traditional owner and wati, or lawman, for the country covered by the licence, a member of the native title claim group and an Applicant for Gingirana. Mr Kruse states he is a Senior Anthropologist and has worked with the Gingirana native title claimants in this capacity over a number of years. I accept the affidavits as provided by Gingirana and I accept both deponents have authority to speak in their stated capacity for the area of the licence.
I have considered the material provided to the Tribunal in relation to the expedited procedure objection application and I am satisfied it is appropriate to deal with these matters ‘on the papers’ (that is, without a formal hearing), pursuant to s 151(2) of the Act.
Gingirana’s contentions argue the grant of the licence, and the exercise by Drillabit of the rights afforded to it by that grant, are contrary to s 237(a) and 237(b) of the Act. That is to say, they argue the grant is likely to be the cause of interference with Gingirana’s community or social activities; and, it is likely to directly interfere with areas or sites of particular significance to Gingirana. As noted at [2], I must also inquire into whether the grant will be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. However, Gingirana does not argue this point. Based on the limited evidence before me on that issue, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Is the grant likely to interfere directly with the carrying on of Gingirana’s community or social activities?
i.What are the community or social activities of Gingirana?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Drillabit’s proposed activities?
iv.Is the grant of the licence likely to substantially and directly interfere with the community or social activities?
b)Will the grant interfere with areas or sites of particular significance to Gingirana?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.Is there a real risk of interference to areas or sites of particular significance?

a)Will the grant interfere directly with the carrying on of community or social activities of Gingirana?

Before examining the evidence in this particular matter, I note that I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant registered native title rights and interests may be summarised as the right to: access, remain in and to use the land for any purpose; access resources and to take for any purpose resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; protect resources and the habitat of living resources in that area.

What are the community or social activities of Gingirana?

Mr Williams states in his affidavit that the most important community activity carried out by the Gingirana claimants is looking after sites and special places. Mr Williams explains this is a cultural obligation that people have to do and is a community activity that people have always done. He states the Gingirana claimants look after sites and special places by making sure all people and companies who come anywhere onto Gingirana country, including in the licence, are told where they can and cannot go and that sometimes Gingirana people will go with them onto country to keep them away from sites and special places.
Mr Kruse’s affidavit explains the importance of this activity, stating that many members of the Gingirana claim group believe they have no choice in matters regarding the protection of culturally significant locations within their country. He states they are ‘obliged by their customary responsibilities as land owners...to look after Jukurrpa and the culturally significant locations of their area.’ He states that ‘they cannot choose to ignore their responsibilities in this regard.’
The affidavit evidence of Mr Williams and Mr Kruse describe various Jukurrpa relevant to the licence area. As a preface to his evidence relating specifically to this licence, Mr Kruse provided a broad explanation of the meaning and significance of Jukurrpa, which I cite here:
For the claimants and other Putijarra and Western Desert people the cultural basis under which they identify areas of cultural significance in the area of the Tenement is best described by the term “Jukurrpa”. Jukurrpa refers to a fundamental concept of Putijarra religion. The term “Jukurr”, or Jukurrpa, is used throughout Western Desert Aboriginal Languages and is typically translated into Australian English to mean ‘story’, ‘law’ and ‘the dreamtime’.
Jukurrpa describes the creative epoch and everything that has subsequently come into the world, including the physical landscape and societal rules. It is central to customary religious associations with geographic locations and their interconnectedness. Many Putijarra people believe that great supernatural beings gave shape to the previously featureless landscape. Jukurrpa refers to the actions of these mythic-beings which remain ever-present and which continue to have agency in the world. These beings also established and laid down a way of life for Putijarra to follow for all time, including men’s initiation rites, marriage rules, other ceremony and many other social codes.
The Gingirana native title claimants, like other Western Desert people, personify their ultimate ancestors as both human in form, and as aspects or features of the environment created by Jukurrpa. Jukurrpa heavily shapes the way the claimants see and understand their country and their rights and responsibilities in respect to it. This understanding of the landscape informs and affects post-European settlement land uses, such as pastoralism and mining as well as present-day residency patterns in towns and communities.
Putijarra people distinguish 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 for the Putijarra way of life. Areas and locations associated [with] the specific activities of mythic beings are typically deemed the most culturally significant by Putijarra people and their protection is considered paramount. This is the basis by which Putijarra people distinguish country which is generally spiritually significant – as Putijarra 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.
Both deponents identify areas within the licence which could be described as sites or special places that require protection by Gingirana, including gender restricted areas (see [44]-[45] for further details on these sites). Mr Williams states there are Gingirana people who ‘guide companies and other people, to stop them from going to the Jukurrpa places, make sure they stay away from the sites and places that the Tjukurrpa visits. We gotta be able to tell them to go around, go a different way. When we do surveys or something, we make sure we don’t take ladies or young men there, and when we get separated, then we can talk about it.’
I am satisfied that the Gingirana people undertake the community activity of protecting sites and special places across their claim area, including communicating with people entering their claim area about these sites and places, and on occasions accompanying these people to ensure the sites and places are identified and avoided. Based on the evidence before me, I am also satisfied there are sites and places within the licence that would trigger this sort of activity and that the activity is a manifestation of Gingirana’s claimed right to maintain and protect areas, places and objects of significance.
Mr Williams states that another community activity carried out by Gingirana is ‘looking after country’. Few specific details are provided in regards to the actual physical activities associated with this practice. Mr Williams states Gingirana claimants ‘look after Gingirana land the proper way’ which is important because it ‘shows respect for the land and makes sure visitors also look after land the proper way.’ He states ‘when a mining or exploration company wants to come into the Gingirana claim area the Gingirana claimants enter into an agreement with them that makes them look after the land in the way the Gingirana claimants do’, and that if they ‘are not allowed to talk to the company and reach agreement with them, then they will not be able to undertake the community activity required to look after land.’
The focus is essentially on physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the land (see Silver v Northern Territory at [61]-[62]). I do not doubt that the Gingirana people practice physical activities which form part of the overarching activity of ‘looking after country’. However, unless evidence about these physical activities is put forward, I am unable to make a finding on the likelihood of interference with them. As stated above, few specific details about the physical manifestation of this activity have been provided (except perhaps for the evidence concerning traditional burning, which I address below). Therefore, I do not find that the evidence regarding ‘looking after country’ is sufficient for me to find it is a community or social activity for the purposes of s237(a).
Mr Williams deposes that members of Gingirana carry out a number of other community and social activities within the licence area, providing the following statements:
·‘At the moment the country is pastoral lease country, but we are still allowed to go out do burning, because it is our country. When people go out on surveys they will do traditional burning...If an exploration company was out there, they’d be in the way of us doing that burning, it would be dangerous for them to be there’;
·‘People are worried about the exploration company scaring away the animals in this area... There’s marlu [kangaroo], emus, wild bush turkeys, goanna, out there in that Tenement’;
·‘We practice our law every year, when we have ceremonies and put our kids through the law... People follow that songline during business time, go to those places, visit that area. If an exploration company was out there when business was going on, especially if it was female, that wouldn’t be okay.’
The affidavit of Mr Kruse states that over the past ten years he has visited a number of locations in and around the licence area with Gingirana claimants, and at each visit he has observed the claimants undertaking a range of traditional activities. These witnessed activities are: burning country for traditional land management purposes; hunting goanna, bush turkey and kangaroo; cooking and distributing the meat from animals caught; collecting bush tucker; cleaning rock holes; generally teaching young people about country; imparting family history; learning about Jukurrpa and singing ceremonial songs for specific locations and areas associated with the licence.
The State’s contentions argue that Mr Williams’ affidavit provides no evidence of the Gingirana people currently hunting or collecting bush tucker in the area. It claims that the evidence regarding camping on the licence is vague and that details, such as the frequency of these activities, which community members are involved, and whether the activities could be conducted elsewhere, have not been provided.
The State refers to the affidavit of Mr Kruse and states that the activities of cooking and distributing meat from animals caught, and cleaning rockholes, which Mr Kruse attests to having observed, are not mentioned in Mr Williams’ affidavit. The State contends that additional information, such as the frequency of those activities, has not been provided by Mr Kruse and therefore should be given very little weight.
The Tribunal has described on numerous occasions the role of expert anthropological evidence in inquiries such as this, for example NgarrawanjiNative Title Claimants v Sammy Resources (at [32]). As outlined in that decision, the Tribunal is not bound by the rules of evidence and expert anthropological evidence can be probative, particularly when it is based on fieldwork and it accords with evidence from members of the native title party.
I believe that the evidence of Mr Kruse does accord with the activities described by Mr Williams, specifically the activities of looking after sites and special places, hunting, burning country, and practicing law. Although Mr Williams does not specifically mention cleaning rockholes or cooking and distributing meat from animals caught, I see these activities as being related to, or an extension of, the broader activities of hunting and looking after sites, both of which Mr Williams describes to some extent in his affidavit. Similarly, I would classify the activities of teaching young people about country, imparting family history, learning about Jukurrpa, and singing ceremonial songs, all of which are described by Mr Kruse, as being aspects of law business which Mr Williams refers to.
I do agree with the State’s contention that Mr Williams’ affidavit lacks some important details regarding these activities, such as the number of people involved, the frequency of the activities, and whether they can be, or are, conducted elsewhere. These points are not addressed in any greater detail in Mr Kruse’s affidavit.
In relation to the activity of traditional burning of country, the State argues that Mr Williams’ evidence appears to be based on the incorrect premise that Gingirana hold rights of exclusive possession. The State argues that Gingirana do not hold rights of exclusive possession and, therefore, they are not entitled to engage in traditional burning without consultation with other parties, including any holder of an exploration licence.
I see nothing in the evidence of Gingirana that is based on an assumed right of exclusive possession. Rather, the evidence of Mr Williams describes the way in which his community is able to conduct activities, such as burning country, relatively unconstrained despite the existence of pastoral leases over the area. The State has not provided any evidence to support their claim that, without holding a right of exclusive possession, Gingirana are not entitled to conduct burning without consulting others, including Drillabit. Regulation 5(1), item 8 of the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) describes the clearing of native vegetation ‘for cultural purposes of Aboriginal persons’ as a form of prescribed clearing under s 51C(c) of the Environmental Protection Act 1986 (WA), provided it is done by, or with the authority of, an Aboriginal person. For the purposes of this legislation, the definition of clearing includes ‘the burning of vegetation’ and the definition of an Aboriginal person is ‘a person who is a descendant of one or more of the Aboriginal peoples of Australia, who claims to be an Aboriginal person and who is accepted as such in the community in which he or she lives.’ In Western Desert Lands v Teck Australia, the Tribunal considered further legislation that may impact the carrying on of traditional burning, stating (at [81]-[83]):
[81] ...The Bush Fires Act 1954 (WA) (‘Bush Fires Act’) provides that a person must not set fire to bush during a restricted burning time unless that person has a permit in writing from a bush fire control officer or chief executive officer of the local government and complies with prescribed conditions, though the person issuing the permit may modify or dispense with these conditions and incorporate additional requirements and directions (ss 18(6), 18(7)). ‘Bush’ in this context is defined to include ‘bush, plants, stubble, scrub, and undergrowth of any kind whatsoever whether alive or dead’ (s 7). In the Shire of East Pilbara, the entire year is designated as a restricted burning time.
[82] The prescribed conditions impose certain requirements on the holder of a permit to give notice of its intention to burn bush and make arrangements for the management and control of the fire. Relevantly, the prescribed conditions require the permit holder to notify the chief executive officer or bush fire control officer of the local government; the owner or occupier of all adjoining land; a forest officer if the bush is located within three kilometres of forest land; and an authorised officer or employee of each ‘notifiable authority’ (Bush Fires Regulations 1954 (WA), reg 15B). An occupier of land is defined as ‘a person residing on the land or having charge or control of it’ and would therefore not include the holder of a mining tenement (see Adamson v Hayes [1973] HCA 6; (1973) 130 CLR 276 at 288-289; TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576 at [28]-[36]).
[83] I acknowledge that additional requirements or directions could be incorporated into the permit to minimise the risk to those undertaking mineral exploration, including by requiring notice to be given to any person holding a mining tenement in the relevant area.

The Tribunal has previously found that in areas where traditional burning is carried out there is a real risk of interference caused by exploration activities, for example Balanggarra Aboriginal Corporation v Valperlon and Western Desert Lands v Teck Australia. However, this will not always be the case and I must consider this issue based on the facts of the particular matter. In contrast to those previous matters, the evidence before me in this matter regarding traditional burning is very limited. In Balanggarra Aboriginal Corporation v Valperlon the native title party described the ranger program which conducted much of the burning, the times of the year when burning is conducted, and also the direct effect burning activities have on the native title holders’ ability to observe cultural obligations and carry on activities such as hunting and gathering. It is not sufficient for a party to simply state that a certain activity is conducted. Rather, specific details must be provided that enable me to establish the details of its conduct and, if appropriate, determine the likelihood of interference should the licence be granted.
Similarly, the evidence provided concerning hunting and the conduct of law business and ceremonies is lacking detail and specificity. Without this information, a satisfactory analysis of the likelihood of interference becomes difficult or even impossible. By implication, it may be assumed that because there are significant sites (and sites of particular significance) on the licence of a ceremonial nature (which is discussed further on in this decision), ceremonial activities may need to be specifically conducted on the licence area. However, while I am prepared to accept that these activities do take place on the licence, I can make no conclusive findings on the attendance or frequency of these activities, or whether these activities are in fact unique to this area.

Are there any other interests which have already interfered with these activities?

I must take into account other lawful activities which are likely to have already impacted on the community or social activities of Gingirana. Evidence provided by the Department of Mines and Petroleum shows that the exploration licence is almost entirely overlapped by pastoral leases (Marymia at 59.4% and Kumarina at 39.8%). Other tenure includes a small parcel of vacant crown land (0.7%), crown reserve covering Rabbit Proof Fence No. 1 (0.1%), and road reserve (less than 0.1%).
The licence has been subject to a number of previous exploration licences, active between 1991 and 2014 and overlapping the licence between 0.9 to 75.3 per cent. The State contend that prior mineral exploration over the licence is likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area.
The State points to these various interests over the land, noting that Gingirana’s communal and social activities have been subject to, or co-existent with, these lawful activities for some time. The State contentions assert that hunting and mineral exploration are ‘by their nature, inherently capable of coexistence’. Evidence provided by the State shows there are a number of minor roads and tracks within the licence and Drillabit have indicated their intention to use these established pastoral tracks in pursuing their exploration activities.
Gingirana’s contentions in reply state that the historical grant of exploration tenure over the licence does not necessarily mean exploration activities have occurred and the State should not conflate the two. Gingirana argue that no evidence has been provided of any prior mineral exploration actually occurring, something which would be within the State’s knowledge due to its capacity as a regulator. I note Mr Williams’ comment that, when he has been out to the licence area, he does not ‘remember seeing any old mines out there, but there is some old capped drill holes, but only in some places, not many.’
Gingirana contend that both Drillabit and the State have failed to detail the basis on which the activities permitted by a pastoral lease can be compared to those authorised by an exploration licence in considering interference. Further, it argues that the mere existence of a pastoral lease over a given area does not constitute evidence of interference by pastoral activities in that area. Again I note that the affidavit evidence of Mr Williams provides some insight on this point. For example, he states that the area is pastoral lease ‘but we are still allowed to go out do burning, because it is our country.’
In considering the impact of past and present underlying tenure, I accept there is likely to have been some interference with Gingirana’s community and social activities. However, the evidence suggests this interference has not been substantial and there appears to have been few constraints on Gingirana’s activities to date.

What are Drillabit’s proposed activities?

The statement of contentions provided by Drillabit states that the proposed work on the licence will be staged, and each phase will depend on the outcome and interpretations of the preceding phase. However, likely exploration activities may include:
a)Collation of regional datasets
b)Collation of previous exploration work
c)Airborne geophysics
d)Stream sediment sampling
e)Soil sampling
f)Geological mapping and rock chip sampling
g)Aircore drilling
h)Reverse circulation drilling
i)Diamond drilling
The licence, if granted, will authorise Drillabit to rights as set out in s 66 of the Mining Act 1978 (WA) and reg 20 of the Mining Regulations 1981 (WA). Subject to the various conditions placed on the grant, these rights include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes. These rights will be granted for a period of five years with options for renewal.
Gingirana’s contentions in reply note Drillabit’s general description of the project, intended activities, proposed exploration work programme and other details regarding its intentions are not supported by evidence and are broad. Gingirana points to the relevant law and principles regarding evidence in expedited procedure matters, as outlined in Miligin v Dempsey (at [31] to [34]). It argues that Drillabit’s contentions are unsupported by evidence and, therefore, the Tribunal should have no regard to them and should assume that the rights afforded to Drillabit under the Mining Act will be exercised to the full.
While there is no evidence before me which might lead to the conclusion that Drillabit will not act in accordance with its stated intentions, those stated intentions are broadly expressed, and so are of little assistance to me in terms of considering likely interference. Accordingly, I make this determination on the assumption that, should the licence be granted, Drillabit may exercise the full suite of rights afforded to it under the Mining Act.

Is the grant of the licence likely to substantially and directly interfere with the community or social activities of Gingirana?

I must consider the activities currently being undertaken on the licence by Gingirana which I have found to be relevant to s 237(a), and weigh these against the activities Drillabit is likely to undertake if the licence is granted.
Mr Williams puts forward the activity of looking after sites and special places as the most important community activity undertaken by the Gingirana native title claimants. He contends that this involves communicating with people or companies about where they can and cannot go, sometimes accompanying and guiding them, and ensuring the gender restrictions over sites and places are not breached.
The State rely on the Tribunal’s findings in Tullock v Bushwin to support their contention that the activities associated with looking after country and looking after sites will not be directly interfered with by the grant of the licence. In Tullock v Bushwin, Deputy President Sumner, quoting Deputy President Franklyn in Drury v Bywood, noted:
...there is a ‘distinction [to be drawn] between the [community] activity as such, and the physical aspects of carrying it on’, i.e. s 237(a) is concerned with the likelihood of direct interference with ‘the physical conduct of the activity’ in question if the future act is done.’
DP Sumner then considered the likelihood of this type of interference with the associated physical aspects of ‘looking after country’ described by the native title party, being community discussions, meeting, negotiating and (if possible) reaching agreement with the grantee party. He stated that:
...it is stretching the intention of s 237(a) too far to conclude that the grant of the exploration licence and the conduct of the exploration activities proposed by the grantee party...will directly interfere with the carrying on of the activities relied upon in this matter.
Lastly, DP Sumner stated:
The Government party has submitted that, if the native title party’s contentions are accepted then a native title party would have a virtual veto over whether the expedited procedure would ever be attracted to exploration activity. I agree with this submission. The sort of community or social activities associated with looking after country identified by the native title party in this matter are, from the Tribunal’s own knowledge, likely to be common to all native title holders. Contentions which are likely to have the result that the expedited procedure would almost never be attracted do not, in my view, accord with Parliament’s intentions in the 1998 amendments.
I agree with the State’s argument in the present inquiry that, should Gingirana’s argument succeed on this point, it would amount to a virtual veto over the expedited procedure being attracted and this would not appear to be the intent of s 237(a). The evidence does not support a finding that Gingirana communicating with people (including Drillabit) about sites and special places to be avoided and, on occasions, accompanying them onto the land to ensure these sites and special places are avoided, is likely to be directly interfered with by the likely exploration activities. Therefore, based on the evidence provided, I find that the community activity of looking after sites and special places is not likely to be directly interfered with for the purposes of s 237(a)
Mr Williams has provided limited evidence regarding hunting, traditional burning and the conduct of law business in the licence area, and this is supported by the evidence of Mr Kruse. What is not clear from the evidence is the frequency of visits or the number of community members involved. It is also unclear whether these activities are unique or restricted to the licence area. The Gingirana claim area is just over 12,100 square kilometres in size and the area of the licence is approximately 260 square kilometres. While I acknowledge Gingirana have provided evidence they carry out the above mentioned activities on the licence, they have provided little evidence to indicate the activities could not be carried out elsewhere within their claim area.
In the circumstances, I must assume in the absence of evidence from Gingirana to demonstrate otherwise, the particulars of the community or social activities taking place within the licence area are such that the activities of Drillabit are unlikely to directly or substantially interfere.

b) Will the grant interfere with areas or sites of particular significance to Gingirana?

Section 237(b) of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular - that is, more than ordinary - significance to Gingirana, in accordance with their traditions, within the licence. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites. I am aware the sites referred to in the evidence are sensitive in nature, so provide broad comment about them, rather than detailed specifics.

What areas or sites are identified?

In his affidavit, Mr Williams states there are sites significant to men located in the area ‘near Beyondie Bluff, and those hills nearby’ and these sites cannot be visited by women. He says this area ‘isn’t just the bluff itself, but also the area around the bluff.’ Tribunal mapping shows Beyondie Bluff to be on the licence, located slightly west of the licence’s centre. Mr Williams explains there is a story about it but it is confidential and he cannot talk about it in front of women, children or men who haven’t been through the law.
The affidavit of Mr Kruse describes Beyondie Bluff as a Gingirana site associated with an important Jukurrpa story. He also describes a series of hills located at the centre of the licence which he states are associated with another important Jukurrpa (Mr Kruse provides the names of both these stories, however, as Mr Williams has refrained from doing so I will not reproduce the names in this decision). It is unclear if this series of hills are the same hills that Mr Williams refers to, although it would seem probable. Mr Kruse states that this Jukurrpa is a major story which links Western Desert Aboriginal groups through ceremony and that this and the Jukurrpa associated with Beyondie Bluff, are restricted to knowledge by wati, or initiated men.
The affidavits of Mr Williams and Mr Kruse also provide detailed information about the location of each Jukurrpa, the direction each one travels across and through the licence, and the sites which have been made by the Jukurrpa. I do not repeat those directions in detail, due to their stated sensitivity. These two Jukurrpa are related to male ceremonies and significance. One of the sites related to one of these Jukurrpa is stated to be in the south east of the licence (and is named Warlkubila). Another is to the east of the licence (and is named Bald Hill).
In addition, Mr Kruse outlines two law ground locations, which the licence lies between.

Are any of these areas or sites of particular significance?

I must decide whether any of the sites or areas identified in the contentions and evidence are of particular significance to Gingirana in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
The State argues there is insufficient evidence in this matter to show there are any sites of particular significance and points to the Tribunal’s findings in Yurriyangem Taam v Baibao Resources to support this conclusion. It states it is not sufficient for a native title party to claim there are sites and areas of significance that traverse most of the licence area without providing any evidence with regards to those sites. The State argues that if this evidence is of a sensitive or confidential nature then the native title party could have applied for a non disclosure order.
It is always preferable for parties to provide detailed evidence to support their contentions. In recognition of the sensitive nature of the evidence which can be submitted in these matters, the Act allows me to direct that certain evidence should not be disclosed except in such a manner, and to such persons, as I specify (see s 155 of the Act). The Act also directs that I must operate in a fair and economical way, not bound by technicality (see s 109), and I must outline the reasons and findings of fact upon which my decisions are based (see s 162(2) of the Act). The evidence in this matter is relatively brief, and Mr Williams has stated there is certain further information he is not prepared to provide due to its sensitive nature. However, I find there is sufficient evidence for me to carry out the above functions in considering the existence of sites of significance in this inquiry.
I am satisfied that the Beyondie Bluff area and the surrounding hills are sites of particular significance. Although the evidence Mr Williams has provided about these sites is relatively brief, it is corroborated by the evidence of Mr Kruse. The evidence also clearly shows the sites are located within the licence, and explains the sites significance as distinct from the more general significance of Gingirana country as a whole.
I find that the two Jukurrpa stories Mr Williams describes as travelling through the tenement are not sites of particular significance for the purpose of 237(b). I appreciate that these stories likely hold great importance to Gingirana people, however, they appear to relate broadly to an area much larger than just the licence. There is insufficient evidence to identify a specific site or area associated with these stories that stands out in some way and distinguishes itself as particularly significant on this licence, apart from Beyondie Bluff and the surrounding hills.
The Bald Hill men’s site referred to by Mr Williams correlates with one of the two “law grounds” described in Mr Kruse’s affidavit. However, the evidence clearly indicates Bald Hill is positioned outside of the licence. The Act does not prevent consideration of areas or sites outside of the licence, however, there must be a clear nexus between those sites and the proposed activities of the grantee party (Silver v Northern Territory at [35]). While there is some evidence of the connectedness of various areas inside the licence, with areas outside the licence, by virtue of the direction the two Jukurrpa travel, that evidence is limited in terms of creating a nexus. A similar analysis can be applied to the two old law grounds between which the licence sits, which are both outside the licence. Based on the evidence provided, I cannot infer such a nexus exists.
The site identified by Mr Kruse as Warlkubila appears to be located within the licence, however, limited further details have been provided and it does not appear to correspond with any sites referred to by Mr Williams, although Mr Williams does broadly refer to a Jukurrpa related site of importance in the same area of the licence. However, without further detail, I find that it is not a site of particular significance for the purposes of 237(b).

Is there a real risk of interference to areas or sites of particular significance?

Gingirana contest that interference with sites is likely due to the fact that they may not be readily identifiable to Drillabit and they are restricted to wati. It argues that, notwithstanding the best of intentions, inadvertent interference is distinctly possible if Drillabit enters the area without guidance from Gingirana.
As noted earlier in this decision, Drilliabit provided submissions which broadly describe the activities they intend to undertake on the licence. However, there are few specific details about these activities and nothing to indicate where on the licence these activities will take place. As a result I assume they will exercise the full rights entitled under the grant (see [32]-[35]).
Drillabit have stated their intention to comply with the Aboriginal Heritage Act 1972 (WA) and have noted their offer to enter into a Regional Standard Heritage Agreement (RSHA) with Gingirana. The State’s contentions advise that a condition will be placed on the grant requiring Drillabit to execute an RSHA in favour of Gingirana, if requested not more than ninety days after the grant of the licence. Drillabit have provided a copy of the company policy with regards to Aboriginal sites, and their contentions state the company has never been prosecuted in relation to breaches of the Aboriginal Heritage Act.

Drillabit’s contentions state they have offered to enter into a RSHA with Gingirana ‘that ensures a heritage survey is undertaken prior to undertaking any exploration activity’. In fact, RSHA’s do not generally require a heritage survey to be undertaken prior to ‘any’ exploration activity – rather, the requirements are conditional, or distinguish between different types of activity. For example, exceptions are provided for ‘low impact activities’, which are generally regarded to be non ground disturbing activities. Depending on the RSHA which is adopted, that can include rock chip sampling, or traversing land on foot or in light vehicles, using existing tracks ‘where possible’. I note that as well as rock chip sampling and soil sampling on systematic grids, one of Drillabit’s activities may be Aircore drilling, which requires ‘a limited amount of clearing for the small drill rig to manoeuvre through the scrub’.
There is nothing before me from either the State or Drillabit which directly addresses how potential interference with gender restricted sites will be avoided. As mentioned above, Beyondie Bluff and the surrounding hills are located in the centre of the licence increasing the likelihood of interference from any exploration activity, albeit such interference may occur inadvertently, and may arise from activities which are characterised as ‘low impact’ by an RSHA.
Both deponents for Gingirana have attested to the particular significance of this area to traditional law and custom. Mr Williams has argued that consultation with Drillabit is required to avoid interference with sites and special places in the licence area, particularly gender restricted sites. Beyondie Bluff is specifically described as a gender restricted site, and its importance is outlined in some detail, together with the surrounding hills. Due to the nature and particular significance of these areas, I find the regulatory regime including the proposed RSHA relied upon by the State is unlikely to be sufficient to avoid interference. Based on a weighing of the evidence provided, I find that without the normal negotiations allowed for under s 31 of the Act, there is a real risk of interference to those areas of particular significance to Gingirana.

Conclusion

The community or social activities carried on within the licence have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Sites and areas of particular significance exist on the licence, and I am satisfied the grant of the licence is likely to interfere with these areas. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E52/3088 to Drillabit Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
26 April 2016