Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield - [2012] NNTTA 27

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27 (19 March 2012)

Application No: WO11/315

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

Banjo Wurrunmurra and Others on behalf of Bunuba (WC99/19) (native title party)

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The State of Western Australia (Government party)

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Francis Robert Salmon and Jamie Dean Duffield (grantee party)

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

Tribunal: Helen Shurven, Member

Place: Perth
Date: 19 March 2012

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – 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 – whether acts likely to cause major disturbance to land or waters – expedited procedure not attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 20(5), 58, 61, 63, 66
Environmental Protection Act 1986 (WA)
Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Oaths, Affirmations and Statutory Declarations Act 2005 (WA) ss 8, 9(6), 16(2)
Rights in Water and Irrigation Act 1914 (WA)
Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127
Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey [2010] NNTTA 89
Monadee and Others v Western Australia and Another (2003) 174 FLR 381; [2003] NNTTA 38
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Buchanan Exploration Pty Ltd/Northern Territory [2002] NNTTA 221
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd [2003] NNTTA 62
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239

Representative of the Mr Reece O’Brien and Ms Ania Maszkowski, Kimberley Land

native title party: Council

Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the
grantee party: Mr Jamie Duffield

REASONS FOR DETERMINATION

On 17 November 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2033 (‘the proposed licence’) to Francis Robert Salmon and Jamie Dean Duffield (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is situated in the shire of Derby-West Kimberley. It is 9.8 square kilometres in size and located 77 kilometres north of Fitzroy Crossing. The proposed licence is entirely within the registered native title claim of the Bunuba People (WC99/19- registered from 20/08/1999). No other registered native title claims or determinations overlap the proposed licence.
On 17 March 2011, an expedited procedure objection application was lodged with the Tribunal by Banjo Wurrunmurra and Others on behalf of Bunuba (‘the native title party’) in relation to E04/2033.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a 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.
Parties negotiated in relation to a draft heritage agreement for several months and directions were extended twice to enable negotiations to continue. At an adjourned status conference on 31 August 2011, the grantee party requested that the matter proceed to inquiry. The native title party requested a four week extension to directions, to allow time to gather evidence, which the other parties did not contest. Directions were amended so that Government party compliance was due on 17 October 2011; native title party compliance on 24 October 2011; grantee party compliance on 31 October 2011; and a listing hearing scheduled for 3 November 2011.
The Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 23 September 2011. The State Solicitors Office provided the Government party’s statement of contentions on 11 October 2011.
On 24 October 2011, the native title party requested a further six week extension to compliance directions, to allow the representative to collect evidence at a claim group meeting scheduled to occur in mid November 2011. This request was discussed at the listing hearing on 3 November 2011 and the other parties agreed to the native title party’s request. The request was granted with the result that native title party compliance was due on 5 December 2011; grantee party compliance on 12 December 2011 and a listing hearing scheduled for 15 December 2011.
The native title party provided a statement of contentions and supporting evidence including an affidavit of Mr Jimmy Andrews by facsimile on 5 December 2011. I note that Mr Reece O’Brien of the Kimberley Land Council has witnessed the document, which appears to be contrary to ss 8 and 9(6) of the Oaths, Affirmations and Statutory Declarations Act 2005 (WA) (‘Oaths Act’). Nevertheless, as the making of the affidavit substantially complies with the required procedure (see s 16(2) of the Oaths Act), and the Tribunal is not bound by technicalities (see s 109 of the Act), I find the evidence is not diminished by Mr O’Brien witnessing the document.
At the listing hearing on 15 December 2011, the grantee party representative indicated that they would not be submitting any contentions or evidence, but would rely on those of the Government party. The Government party advised that it would not, at this stage, agree to the matter proceeding to be determined ‘on the papers’ but would consider requesting an oral hearing.
In an email sent to the Tribunal on 20 January 2012, Mr Clyde Lannan of the DMP stated that ‘[a]fter some consideration the Government Party is now satisfied that this matter should proceed to an “on the papers” determination.’ He also requested that directions be made to allow the Government party to reply to the contentions and evidence of the native title party.
On 20 January 2012 I was appointed by the Hon CJ Sumner, Deputy President, as the Member for the purpose of conducting the inquiry.
On 25 January 2012 I made directions allowing the Government party to lodge a reply to the submission of any other party and also scheduling a directions hearing. The directions and a copy of the 20 January 2012 email from the Government party were circulated to parties on the same day.
On 13 February 2012, the Government party lodged with the Tribunal and circulated to other parties the Government Party’s Statement of Contentions in Response to the Contentions of the Native Title Party (‘Response’).
On 14 February 2012, I sought the views of parties on a proposed course of action in vacating the proposed directions hearing and proceeding to determine this matter on the papers. On the same day the Government party and native title party contacted the Tribunal and indicated they did not have any objection to the proposed course of action. As such, the inquiry is proceeding to be determined ‘on the papers’ as per s 151 of the Act and I am satisfied that it can be adequately determined in this way.

Legal principles

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.’
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

Issues arising under s 237(b) and s 237(c) were not canvassed in any detail in this current determination, given the findings in relation to s 237(a), therefore it is not necessary to set out the legal principles that apply to those subsections.

Evidence in relation to the proposed act

The Government party has provided documents including: a statement of contentions; tengraph plans with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement applications; copies of the proposed endorsements and conditions of grant and tengraph quick appraisals.
In relation to underlying tenure, Government party documentation establishes that the proposed licence is entirely overlapped by an Indigenous held pastoral lease K571500 (Leopold Downs). Several internet sources confirm that the Leopold Downs pastoral lease is held by the Bunuba people (for example, management.html and people.html). Government party documentation also establishes that the services on the proposed licence comprise four non-perennial major watercourses and ten non-perennial minor watercourses.
Government party documentation establishes that five dead tenements were previously granted which overlap the proposed licence. They were granted between 1973 and 2006 and died between 1974 and 2007. The dead tenements were predominantly exploration licences. Two of these dead tenements overlapped the proposed licence entirely; one overlapped by 94.7 per cent; and the other two tenements overlapped by less than six per cent. One of the tenements expired, three were surrendered, and one was cancelled.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licences and of certain exploration activities (Conditions 5-6).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) (‘EPA’) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) (‘EPR’), which provides for the protection of all native vegetation from damage unless prior permission is obtained.

The Government party contentions (at 5(d)) state that the Government party will place an additional condition on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba the applicants in Federal Court application no. WAD6133 of 1998 (WC99/19), such request being sent by pre-paid post to reach the Licensee’s address, c/- PO Box 232, Wickham WA 6720 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (eg the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHA) offered by the Kimberley Land Council.’

Evidence provided by the native title party

The evidence provided by the native title party comprises the affidavit of Mr Jimmy Andrews (Dilling) made in the following terms:
‘I, Jimmy Andrews, Tourist Operator, of Biridi Community, near Fitzroy Crossing in the State of Western Australia, affirm:
1.My name is Jimmy Andrews. My Aboriginal name is Dilling. I was born at Moola Boola and came to Brooking Station when I was 4 or 5 years old. My mother was Daisy Andrews, her aboriginal name was Munmurrd. She was a Walmajarri woman.
2.I am one of the senior people for the Bunuba Combined Native Title Determination Application (WC99/19).
3.I am a Bunuba man through my step-father who raised me up from the time I came to Bunuba country. I have been adopted by Bunuba people under the traditional Bunuba method of adoption called marurr. I am now recognised as a senior Bunuba person and am a Named Applicant in the new Bunuba No.2 native title claim.
4.My step-father’s name was Adam Andrews. His aboriginal name was Wigurly. He is my Bunuba father. He was born at Brooking Springs (Granudja). His father was also born at Granudja. Both Wigurly and his father worked on the station. I also worked on the station.
5.I know the area where James Dean Duffield and Francis Robert Salmon, “the grantee party”, have applied for Exploration Licence Number E04/2033, “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A” and “B”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
6.I live at Biridi community which is very close to the tenement area. People from that community go out that way all the time.
7.I go out to the tenement area at least once a year usually about this time. The last time I was out there was late last year. We take our family and other young people out there to visit country and tell and share the stories.
8.I have recently been out there with my brother Christian and my grandsons Emmanuel, Amos and Joshua. Another grandson Adam Bin Busu also comes out with us when we go to the tenement area.
9.We camp out there around Black Hill and Phillis Camp Yard. There are creeks right through the tenement area. We camp along those creeks and get our water from there. We also get water from soaks that we dig when we are out there.
10.We build our own fires when we camp on the tenement area. The best wood is Snappy Gum (galnug). We collect that wood right through the tenement area. Those valley areas are good for that tree.
11.There is good hunting in the tenement area and we only eat food we have hunted when we are out there. We are only allowed to take what we need at the time. If you take too much you will never get it again because the ‘little people’ won’t let you.
12.When we hunt in the tenement area we hunt for goanna (wawanyi), male hill kangaroo (walumba), bush turkey (galamuda) and black headed python (bunagu).
13.When we fish we catch black bream (gawi), crocodile (lalangala) and other fish. You can also catch long-necked turtles (winyagarup or jangaroo). Under our law I am not allowed to catch winyagarup because the old people did not give it to me.
14.Anything we catch must be shared with other people in the community under our law.
15.We still use traditional hunting techniques. This helps us teach the young people the old ways. Sometimes now when we hunt turkey and kangaroo we use guns but we try and teach our young people traditional way which is using the mudu or beating stick.
16.Sometimes we use plants and put them in the water which stuns the fish and brings them to the surface.
17.Going out to the tenement area is very important for my community as it helps teach young people and lets the old people share stories. It is a bit like a competition with each person trying to prove how much they know about country. It is the traditional way of transferring knowledge.
18.There are two important song lines that run through the tenement area. When we go out there we sing those songs with the young people. My old people taught me those songs. It is how we keep the law strong and how we keep community strong.
19.We collect bush tucker throughout the tenement area when we go out there. What we collect depends on the time of year.
20.During the wet we can get conkerberry (briali) which we eat the fruit from. It is very sweet. We also get bush plums (girndi), bush orange (gudida), gilay and bush yam (wangu).
21.We also get sugarbag during the dry season. It is like honey and you find it in the ground between rocks and also in trees. There is a lot of it in that valley area. We also get honey from the paperbark trees. You can peel the bark back and find honey.
22.I was taught about collecting bush tucker by my old people. I have walked across that country with my family all my life. When I was young we would ride horses through there which allowed me to learn a lot about that country.
23.We also use conkerberry for bush medicine. You can boil it up and make a type of ‘Vicks’ with it. You rub it on your chest and it helps with breathing when you have a cold. We also use it to smoke children to make their bones strong. It is also used in ceremony when we welcome people to country.
24.We also use Spinifex wax (barrala). That is used to rub on the soft part of the babies’ head and also helps get rid of headaches.
25.If exploration companies come out to the tenement area they might use up all of the water. In the past we have lost access to tracks because machinery blocks the way. We feel very uncomfortable when we go on to country and we find others already there without us knowing. Companies need to talk to us first so none of this can happen.
26.I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Bunuba people.
27.There are two song lines that run through the tenement area and the valley. The song lines are traditional ways of protecting country. We have to look after those song lines and keep them strong.
28.My father, Wigurly, was given the song line from the ‘little’ people. It is called Ellimbirri-Uungud because that is where it travels. The song line talks about the country and the places along the song line.
29.There is another song line that starts at Windjuwi and runs through Mt Rose to Tunnel Creek.
30.Under my traditional law I have responsibility to sing those songs. That is how we keep those song lines strong. That keeps the country strong. That keeps culture strong.
31.I sing these song lines when introducing tourists to the country. I am welcoming them to the country by singing the songs to them. I do this on the first night that they are at the tourist camp.
32.We sing those songs when we go out to the tenement area with our mob. We sing these songs to the young people so they will know them. It is important to sing these songs in the right places.
33.There are also important rock formations close to the tenement area. These are lines of white quartz. We have been told that when there is white quartz there are often other things that explorers are looking for. We do not want explorers going there without talking to us first.
34.If that place gets damaged I will be responsible under traditional law. That is why the companies must come and talk to us.
35.There are other special rock formations in the valley where the tenement area is. Companies need to talk to us to find out where these rocks are. We do not want them to destroy those rocks.
36.In the past companies have left without cleaning up after themselves. One of my mob once found a box of explosives left behind.
37.The best way to look after these places is to have an agreement with the company. This way we protect these places under our law and white law.
MAJOR DISTURBANCE TO LAND OR WATER
38.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
39.Under our law strangers need to ask permission to go on to our country. Even other aboriginal people who are not Bunuba need to ask if they can go on our country first. If strangers come onto the country and damage places they could get sick. Their truck might also ‘bugger’ up. We can also get sick because we have let the old people and the country down.
40.When strangers come on to country they need to sit down and talk to us first. They need to sign an agreement so that we all know the rules. If they want to come on to our country they should help out our community. That tenement area is Bunuba country.’

Mr Andrews is one of the senior people for the Bunuba Combined native title determination application, and as such I accept that he has authority to speak for the native title party in this matter.

Tribunal documents

The Tribunal Geospatial Services team produced a map on 19 January 2012 showing the proposed licence and the features of the area around it, including DIA sites, the registered native title claim area, conservation parks, Aboriginal communities, topography and tenure. After reviewing a number of previous objection determinations made by the Tribunal, I requested, and the Geospatial Services team subsequently produced, a second map, similar to the first but also showing the tenements which have been the subject of recent previous objection determinations, with an inset magnifying the proposed licence to better see the topography and where water lies on it. This second map was produced on 15 February 2012, and was circulated to all parties on 17 February 2012 with a request that any party wishing to make further submissions after viewing the map should notify the Tribunal by 21 February 2012. No party made contact with the Tribunal in relation to this request.

Community or social activities (s 237(a))

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 party (in the sense of there being a real risk of interference): see Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’) at [23]. 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 at [23]. The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
In its statement of contentions, the Government party says that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the native title party because there are no Aboriginal communities situated on the proposed licence. I note, however, that there are five Aboriginal communities within 25-45 kilometres or so of this tenement, and a further three Aboriginal communities within a further 30 kilometres or so away.
The Government party also relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63, concerning conditions deemed to affect exploration licences, and s 20(5) relating to exploration activity on pastoral leasehold areas. I note the Tribunal’s previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to a s 237 assessment (see for example Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibra [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life, and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:
‘The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.’
The native title party contentions state that the evidence produced by it shows a real chance that the future act will interfere directly with the carrying on of community and social activities of the native title party; being (at 16):

Belonging to the country within the proposed licence;
Living, camping and conducting community within the proposed licence;
Accessing and using the proposed licence for the purpose of educating young people in culture and tradition;
Hunting and fishing within the proposed licence, including the male hill kangaroo, goanna, bush turkey, black-headed python, black bream, crocodile and long-necked turtle;
Collecting bush tucker from within the proposed licence, including bush plums, conkerberry, bush orange and bush yam;
Collecting bush medicine from within the proposed licence including medicine for colds and coughs;
Collecting material from within the proposed licence for use in ceremony; and
Looking after sites of importance and significance within and in the immediate surrounds of the proposed licence.

In support of those contentions in relation to interference with community or social activities, in his affidavit, Mr Jimmy Andrews says (at 6) ‘I live at Biridi community which is very close to the tenement area.’ He says that he goes to the area of the proposed licence at least once a year and that the last time he was there was late 2011 (at 7). Mr Andrews says that (at 7) ‘[w]e [when read in conjunction with paragraphs 6 and 17, I assume to mean people of the Biridi community or members of the native title party] take our family and other young people out there to visit country and tell and share the stories’. He talks about camping around Black Hill and Phillis Camp Yard. The Tribunal Geospatial Services map shows Phillis Camp Yard to be located approximately eight kilometres south of the proposed licence and Black Hill to be about 13 kilometres to the west of it. Mr Andrews says that (at 9) ‘[t]here are creeks rights through the tenement area. We camp along those creeks and get our water from there. We also get water from soaks that we dig when we are out there’. Tribunal mapping confirms waterways around and throughout the proposed licence area, which DMP documentation suggests are non-perennial (that is, waterways which depend on the rainy seasons and which come and go accordingly).
The Biridu Aboriginal Community is one of the five communities within a 45 kilometre radius of this proposed licence. Mr Andrews says that people from that community ‘go out that way all the time’ (at 6). While this statement is vague as to the exact location, it shows that it is not only Mr Andrews but other members of the community that go out on or near the proposed licence. Mr Andrews states that he, his family and other young people go out there to a) visit country and b) tell and share stories (at 8), and he indicates that it is not only his family that attend on or near the proposed licence, but also other people from the local community (at 17). As it is important for the old people to share their stories; ‘[i]t is a bit like a competition with each person trying to prove how much they know about country. It is the traditional way of transferring knowledge.’
Mr Andrews indicates that members of the native title party camp along and get water from the creeks on the proposed licence (at 9). He says that they also get water from soaks that are dug at the time of camping and that they build fires from the wood collected through the area of the proposed licence (at 9-10). He outlines how the native title party cares for the area sustainably, by taking only what food they have hunted when they are there and, in relation to fishing, sharing any catch with people in the community. It appears that there is an abundance of wildlife for hunting and fish for catching. The evidence given by Mr Andrews shows the importance which is placed on the use of different hunting techniques, and teaching those techniques to the young people; including traditional ways using the Mudu (beating stick) and using plants in the water to stun fish when fishing.
Mr Andrews talks about collecting bush tucker on the proposed licence when the community visits, in particular:

During the wet season getting conkerberry (briali), bush plums (girndi), bush orange (gugida), gilay and bush yam (wangu) (at 20);
During the dry season getting sugarbag, which is like honey and found in the ground between rocks and in trees, and honey from paperbark trees (at 21);
Being taught about collecting bush tucker by the old people (at 22);
Using conkerberry for bush medicine – boiling it up and making something like ‘Vicks’, used by rubbing it on the chest for someone who has a cold, to smoke children to make their bones strong and in ceremony when welcoming people to country (at 23); and
Using Spinifex wax (barrala) to rub on the soft part of babies’ heads and also to help get rid of headaches (at 24).

In its Response, the Government party states that it accepts, based on Mr Andrews’ affidavit, that the community and social activities of hunting, fishing, visiting country and collecting traditional foods and products may be carried on by the native title party in the proposed licence area (at 39). It says that it also accepts that members of the native title party may sometimes camp in the vicinity of the proposed licence (at 39). The Government party says that Mr Andrews’ evidence on these activities is ‘slightly unhelpful because he seems to suggest that the Native Title Party’s regular camping places, Black Hill and Phillis Camp Yard, are within, or very close to, the tenement area when in fact they are some distance outside the proposed tenement area’ (at 40). The Government party says that this raises the question as to whether the hunting, fishing and gathering activities that Mr Andrews’ talks about, which seem to occur around the camping places, actually occur on the proposed licence (at 40). They say that it also raises a doubt as to whether Mr Andrews has been accurately advised as to the location of the proposed licence, or if so, whether he has understood that advice (at 40).
Mr Andrews attests that he knows the proposed licence area well, that he lived and worked in the area, and that he has been shown maps of the location of the proposed licence which are annexed to his affidavit. Given this, and the relatively close proximity (and easy commuting distance) of five Aboriginal communities, with a further three communities within approximately 80 kilometres of the proposed licence, I accept his assertions in relation to social and community activities being on or very near to the proposed licence.
Mr Andrews states that there are important rock formations close to the tenement area (at 33), which I assume could be related to DIA sites 13654 and 13656, which are within approximately five kilometres of the proposed tenement (to the east and the north west respectively). However, there is no way of confirming this and little information is given in relation to social and community activities relating to those rock formations. In my view, these statements go more towards an assessment of s 237(b) than in support of social and community activities.
In his affidavit (at 10) Mr Andrews talks about building fires when camping on the proposed licence and collecting Snappy Gum (galnug), which is the best kind of wood to use for fires. Mr Andrews says that there is good hunting in the proposed licence area and that when the community goes to the area of the proposed licence they hunt goanna (wawanyi), male hill kangaroo (walumba), bush turkey (galamunda) and black headed python (bunagu) (at 12). He also says that when they fish they catch black bream (gawi), crocodile (lalangala) and other fish. He says that you can also catch long necked turtles (winyagarup or jangaroo) but that under Bunuba law he is not allowed to catch them because the old people did not give that permission to him (at 13).
In relation to other community and social activities, Mr Andrews says that ‘[t]here are two important song lines that run through the tenement area. When we go out there we sing those songs with the young people. My old people taught me those songs. It is how we keep the law strong and how we keep the community strong’ (at 18). Mr Andrews has sworn that the song lines run through the tenement area, and I therefore accept that, however he has provided little information other than this in relation to the location of the song lines. He says that one song line is called Ellimbirri-Uungud because that is where it travels (at 28). I was unable to find any reference to this name on the Tribunal map or the Tribunal’s mapping database, so I am unable to conclude exactly where or to what extent this song line runs through the proposed licence. Mr Andrews identifies the other song line as starting at Windjuwi and running through Mount Rose to Tunnel Creek. The Tribunal map shows that Mount Rose is located east of the proposed licence and that Tunnel Creek is located south west of it. Any line joining Mount Rose and Tunnel Creek intersects with the proposed licence. As such, I can determine the approximate location of that songline and conclude it runs through the proposed licence.
The Government party says that ‘[i]f the general assertion that any ground disturbance will disturb these songlines were sufficient to disapply the expedited procedure, then it would be disapplied to the grant of almost all exploration tenure in the vast majority of Australia. In the Government Party’s submission that outcome would be incongruent with Parliament’s intention in drafting section 237 of the Act. The section was amended in 1998 expressly to avoid outcomes of this kind’ (at 65 (c)). The amendments replaced the phrase ‘community life’ with ‘carrying on of the community or social activities of the native title holders’.
In relation to the Government party’s argument, I agree that evidence of the mere existence of songlines is not enough to support a decision that the expedited procedure does not apply. However, where evidence is provided that the community actively follows and sings the songlines as part of a physical community or social activity, this may support an inference that it is likely that the activities of the grantee party will interfere with this and hence the expedited procedure should not apply. This activity cannot be viewed in isolation, it should be considered in the context of all of the evidence provided as to what and how often social and community activities are carried out on the proposed licence.
Mr Andrews mentions a number of times (for example, at 27 and 30) that singing the songlines keeps the country and the culture strong, and that there are two songlines that run through the proposed licence area and the valley. He again reinforces that it is not only he and his family that do this, but that ‘[w]e sing those songs when we go out to the tenement area with our mob … It is important to sing these songs in the right places’ (at 32).
In Moses v Silver and Others/Ashton Exploration Australia Pty Ltd/Northern Territory [2002] NNTTA 18, Silver v Northern Territory (2002) 169 FLR 1, the Tribunal found that spiritual activities are within the scope of s 237(a) when the activities are rooted in physical activities. In summary, Deputy President Sosso suggested that s 237(a) is focused on an examination of the external manifestation of community life in the form of activities. He found it is clear that some activities have a spiritual dimension and that the doing of an act could interfere directly with those activities. Section 237(a) would require material before the Tribunal that the future act is likely to have a direct physical interference with activities which in turn would impact on the spiritual dimension of those activities (at [56]), and there must be evidence that the doing of the act would substantially interfere with the community or social activities of the native title holders. It would not be enough if only isolated members of the community were upset about the proposed future act. Evidence can be adduced of the collective experiences of a geographically localised group of persons. In the current matter, Mr Andrews indicates it is not only he and his family who would be affected, but other communities who live, geographically, relatively close to the proposed licence.
In Walley, the Deputy President reinforced other Tribunal decisions which indicated that community or social activities which arise out of a community’s spiritual belief, such as the conduct of ceremonies, initiations, teaching children about spiritual aspects of Aboriginal law, traditions, customs or beliefs which are part of or related to a claimants native title and connection to land are covered by s 237(a). Emotional distress of some members of a claim group caused by the proposed future act is not covered by s 237(a) if it does not reflect on the manner in which community or social activities are carried out. To satisfy s 237(a), there must be evidence of the consequences of the native title party’s concerns in relation to the inability to fulfil obligations to look after country. In Walley, there was insufficient evidence to show that the spiritual concerns and their consequences would interfere in a substantial way with community or social activities. In the current matter, Mr Andrews has provided evidence which suggests the teaching of the ways of the native title party to younger members of the group, the traditional ways of transferring knowledge in the area of the proposed licence, and the singing of and looking after songlines are likely to be interfered with by the activities of the grantee party.
The Government party states that ‘the vast majority of community and social activities of the Native Title Party set out in the NTP Contentions are nothing more than unsubstantiated assertions which are not reflected in the evidence provided by the Native Title Party’ (at 41). They say that there is no evidence that members of the native title party (at 42):

Live on the proposed licence. There are no Aboriginal communities on the proposed licence. Mr Andrews gives evidence that he lives ‘very close to’ the proposed licence at Biridi community, but ‘[i]n fact, the Biridi community is located approximately 50km to the south-east of the proposed tenement’;
Conduct or collect material for use in law ceremonies on or near the proposed licence;
Look after burial places on or around the proposed licence or have ancestors or family who are buried in the vicinity; and
Look after sites of importance and significance on and around the proposed licence and protect rock paintings in the vicinity. The Government party says that while Mr Andrews refers to ‘important’ and ‘special’ rock formations in the area of the proposed licence his evidence does not suggest that he or others actively care for or maintain these sites or even visit them.

I accept that that the native title party has not provided evidence to support their contentions in relation to these points, although I note that the distance of the community can be regarded as being relatively close to the proposed licence in terms of commuting distance, and the proposed licence lies approximately in the centre of eight Aboriginal communities in the area.

The Government party says that it does not accept that some of the community or social activities in the native title party’s contentions are in fact activities to which s 237 (a) of the Act applies, in particular (at 43):

Belonging to country; because it is a belief or a state of mind and not an activity and there is no evidence of any additional physical activities manifested as a result of ‘belonging to country’; and
Being a custodian of traditional stories and knowledge; for the same reasons as set out above.

I accept that merely belonging to country and being a custodian of traditional stories and knowledge is insufficient to sustain a finding that the expedited procedure should not apply in relation to s 237(a).

The Government party says ‘to the extent that the evidence demonstrates that members of the Native Title Party carry out any community or social activities in the area of the proposed tenement’ there is not likely to be direct interference with those activities for the following reasons (at 47):

The Government party intends to impose an RSHA condition on the grant of the proposed licence;
The area has been the subject of prior mineral exploration and it is likely that this has already affected the extent to which community and social activities can be carried out, hence the proposed licence will have no greater effect;
The proposed licence is entirely covered by a pastoral lease which is likely to have extinguished at least any native title rights to control use of and access to the area, and activities will have been co-existent with the pastoral lease and other lawful activities for a significant period of time; and
The native title party only rarely visits the area, once a year (as per Mr Andrews’ affidavit), and hence the native title party and grantee party are unlikely to intersect, and it is not apparent that activities will be prevented or disrupted to any significant extent.

I will deal with each of these points in turn.

The wording of the RSHA (as outlined at [25] of this determination) is somewhat ambiguous, as the Kimberley Land Council itself does not offer an RSHA. Nevertheless, if the wording means that the native title party can, if it chooses, offer any endorsed RSHA to the grantee party upon grant of the proposed licence, then it would enable the native title party to undertake site surveys prior to ground disturbing activity taking place on the proposed licence and offers some level of heritage protection. This would appear to go more to s 237(b) than s 237(a) and so offering an RSHA does not appear to be particularly relevant in relation to affecting the native title party’s social and community activities.
In relation to prior mineral exploration, little evidence has been presented in relation to the nature of those licences. It appears there have been three tenements which overlapped the proposed licence by 94 per cent or more between 1973 and 2007. The nature and extent of any activities undertaken on those previous tenements is not clear.
In relation to the pastoral lease, it is in fact an Indigenous held pastoral lease, Leopold Downs. In Kathleen Parry, Albert Myoung, Paddy Huddlestone and Marjorie Foster/Buchanan Exploration Pty Ltd/Northern Territory [2002] NNTTA 221 (‘Kathleen Parry’), the native title holders provided detailed evidence of current social and community activities that was unchallenged (at [49]-[58]). This included camping on or near the proposed licence; living at a community 50 kilometres from the proposed licence; and hunting and fishing on the proposed licence (such food which was shared with others in the community). That decision refers to earlier Tribunal decisions in Western Australia, which found that the grant of the future act would be likely to result in direct interference with community and social activities, and in those matters there was evidence of regular camping, travelling and hunting on the relevant land and waters, and the activities played an important part in the communities in question. In addition, that case referred to Smith and outlined that when assessing the possibility of direct interference, the Tribunal is entitled to have regard to constraints already imposed on community or social activities by third parties.
In the present matter, the native title party does not appear to be subject, on a daily basis, to the lawful activity of others. Similarly to Kathleen Parry, in the present matter there is no evidence from the grantee party about how it intends to carry out its exploration activities so as to minimise the risk of interfering with the native title holder’s activities. In Kathleen Parry, the Tribunal was satisfied that there was a real chance or risk that the grant of the proposed licence would result in direct interference with community or social activities.
Similarly, in Monadee and Others v Western Australia and Another (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee’), the proposed licence was primarily on an Indigenous held pastoral lease. That is also the case in the present matter (where the Indigenous held lease wholly overlaps the proposed tenement). In Monadee, the Tribunal found the usual risk assessment factors of the ongoing lawful activities of pastoralists prevailing over native title rights did not automatically occur, and evidence was led that the native title claimants had easy access to the pastoral lease to carry out traditional activities. The Tribunal inferred that the type of restrictions otherwise placed on native title holders traditional activities did not occur on this pastoral lease and that there was free access. On the basis of the uncontested affidavit evidence of community activities carried out regularly and by a significant number of native title holders (and no evidence of previous mining activities or the grantee’s intentions), the Tribunal held that the grant would be likely to have a substantial impact on community or social activities. As such, the grant of the prospecting licence in that matter was determined not to be an act attracting the expedited procedure.
In relation to Mr Andrews’ evidence in terms of his visits, the Government party interprets what he has said as saying his visits to the area are ‘rare … once a year’ whereas what he has said it that he goes out ‘at least once a year’ and that ‘[p]eople from that community go out that way all the time’ [emphasis added]. Given Mr Andrews’ evidence and the fact that there are a number of communities within 25-45 kilometres of the proposed tenement (as outlined earlier in this determination), I could not say it is clear cut that the native title party and grantee party are ‘unlikely’ to intercept or that ‘it is not apparent that the activities … will thereby be prevented or disrupted to any significant extent’ as suggested by the Government party.
In addition to the evidence already canvassed, Mr Andrews has raised a number of broad issues in his evidence which I will deal with below and assess in relation to the evidence provided by the Government party.

Social and community activities using water

As detailed above, Mr Andrews has given evidence about camping along and fishing in the rivers on the proposed licence.
The Tribunal Geospatial map created on 15 February 2012 has an inset which shows that there is a system of interconnected watercourses running through the proposed licence. Also, the quick appraisal document provided by DMP says that there are four major non-perennial watercourses and ten minor non-perennial watercourses on the proposed licence. The evidence establishes that there is, from time to time, a significant amount of water on or near the proposed licence. Mr Andrews states that he is concerned that companies undertaking exploration activities on the proposed licence ‘might use up all of the water’ (at 25).
In its Response, the Government party sets out s 66 of the Mining Act, which provides the rights conferred on the holder of an exploration licence, which includes authorising the holder of the licence to ((d)):
‘[T]ake and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situated in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’

This right to take and divert water appears to be quite wide. Neither the Government party nor the grantee party has provided any further information as to how exploration activities will impact on water on the proposed licence or how this will be not likely to affect the social and community activities of the native title party. There is no reference to specific sections of the Rights in Water and Irrigation Act 1914 (WA), nor is there any information about the nature and extent of the exploration to be done in the tenement.

In relation to the grantee party evidence, they have relied on the Government party contentions. The Government party contentions have not provided any details regarding the proposed method of exploration of the area or the program of work proposed to be carried out in the area. I note that such information is required by s 58 of the Mining Act in making an application for an exploration licence and such information would have been of assistance in this matter.
As per s 61 of the Mining Act, an exploration licence remains in force for a period of five years and that term may be extended by a further five years, and then further in two year blocks. In relation to s 66 of the Mining Act, the exploration licence also allows the grantee party to enter and re-enter the land ‘with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land.’ Such may include ‘digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, or under the land’, and also allowing the grantee party ‘to excavate, extract or remove … earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit’, which at this time is 1000 tonnes. It also allows the grantee party ‘to take and divert … from any natural spring, lake, pool, or stream situate in or flowing through such land … and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land’ (as discussed above). This is subject to the Rights inWater and Irrigation Act 1914 (WA) and to the conditions imposed.
In its Response, the Government party acknowledges Mr Andrews’ concern about the depletion or exhaustion of water resources. The Government party says that this concern, along with others raised by Mr Andrews, is speculative (at 65(b)). They say that ‘[t]here is no evidence that the Grantee Party is going to conduct activities which will have those effects and the activities of previous grantee parties is not a predictor of what this particular Grantee Party will, or will not do. The endorsements and conditions which the Government Party proposes to place on the proposed tenement ... are intended to prevent most of Mr Andrews’ concerns arising.’
The relevant endorsements and conditions have already been set out above. In summary they are (as outlined at 14 of the Government party’s Response):

An endorsement drawing the licensee’s attention to the AHA and Regulations;
An endorsement drawing the licensee’s attention to the EPA and the EPR;
A condition requiring that any surface holes drilled for the purpose of exploration be capped, filled or otherwise made safe immediately after completion;
A condition requiring complete environmental rehabilitation of any ground disturbance within 6 months of excavation;
A condition requiring complete removal of rubbish and other materials left on the tenement prior to or at the termination of the exploration program; and
A condition prohibiting the use of any drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans without prior written approval.

None of these endorsements or conditions appear to specifically deal with the issue of interference with water on the proposed licence.

Based on Mr Andrews’ identification of the regular camping spots ‘around’ Black Hill and Phillis Camp, his statement that ‘[t]here are creeks right through the tenement area’, the fact that there are five communities in the surrounding area, and that the native title party camp along and get water from creeks on the proposed licence, I accept that community and social activities which depend on the presence of water occur on and close to the proposed licence.
As outlined in Western Australia v Smith and Others (2000) 163 FLR 32, in the absence of evidence to the contrary, the Tribunal will assume that the grantee party will not act in breach of the relevant law, regulations or conditions imposed and that those empowered by any statute or regulations to exercise the direction would do so properly within the boundaries of that discretion, and that the presumption of regularity prevails in absence of evidence to the contrary. I accept this. Nevertheless, as outlined above, even acting within the boundaries of relevant law, the grant of an exploration licence enables the grantee party to do a significant number and type of activities on the proposed licence area.
Without giving evidence as to the nature and extent of those activities, whether they will be staggered over time or how they will be conducted, it is difficult to say that they would not be likely to directly interfere with the social and community activities as outlined by Mr Andrews.

Other concerns raised by Mr Andrews

Mr Andrews raises concerns about losing access to tracks due to machinery blocking the way and feeling uncomfortable about others going out on country without the group knowing (at 25). He is also concerned about the grantee party leaving behind material, including dangerous material (at 36). The Government party offers the information in relation to these concerns as in relation to the water issue: that the proposed conditions will prevent these issues from arising. I do not believe that the proposed conditions will prevent the grantee party from blocking tracks with machinery or from the native title party feeling uncomfortable – none of the conditions specifically deal with these issues. Nevertheless, as outlined above, I do accept the Government party’s Response that ‘[t]here is no evidence that the Grantee Party is going to conduct activities which will have those effects and the activities of previous grantee parties is not a predictor of what this particular Grantee Party will, or will not, do’ (at 65(b)). I accept that the behaviour of the current grantee party cannot be predicted according to what a previous grantee party has done, or that the current grantee party has not followed their obligations previously. However, I note, as I have previously in this determination, that the grantee party has not provided any submissions or evidence to indicate what they intend to do on the proposed licence: I have little information about their attitude towards their obligations or regarding their intentions for interacting with the native title party.

Previous exploration activities and tenement applications overlapping the proposed licence

As outlined above, the Government party has said that there is not likely to be interference with community or social activities of the native title party because the proposed licence has been subject to prior mineral exploration and these activities would have already affected such activities. The quick appraisal document provided by the DMP shows that there are two dead exploration tenements, granted post native title, which overlapped the proposed licence to a significant extent:

E04/1046, overlapped by 97.4 per cent, granted 1 July 1996 and surrendered 27 August 1997; and
E04/1419, overlapped by 100 per cent, granted 19 May 2006 and surrendered 15 May 2007.

As such, it appears limited exploration activity and no mining activity has occurred in this area.

The 15 February 2012 map created by the Tribunal’s Geospatial Services shows that the proposed licence is in the western portion of E04/1737, a proposed licence which was much larger than the proposed licence in the current matter, and which was the subject of an objection to expedited procedure determination (WO08/1016) in Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey, [2010] NNTTA 89 (‘Banjo Wurrunmura’). That inquiry also involved Mr Jamie Duffield, the grantee party in this matter, as well as a number of other individuals who comprised the grantee party. The Tribunal found that the grant of the licence was not an act attracting the expedited procedure because there was a real risk of interference with sites of particular significance. In the present matter, there is little evidence in relation to sites of significance or sites of particular significance. Mr Andrews has focussed his evidence on community and social activities of the community. In Banjo Wurrunmura, the evidence in relation to WO08/1016 of the determination focussed predominantly on interference with sites of particular significance. I accept that different members of the native title party will provide a different focus on relevant evidence, depending on their position in the native title party, and their life experiences in relation to the native title party and the proposed licence area. I have not attempted to relate the locations and evidence in relation to sites in Banjo Wurrunmura (WO08/1016) to the current matter as the licences are of quite different sizes.
In relation to social and community activities in Banjo Wurrunmura (WO08/1016), the Tribunal determined that the evidence established that exploration activity had occurred in the area and surrounds and while it was possible that this had interfered with the native title party’s community and social activities, there was no evidence to suggest that this had occurred to any appreciable extent. Evidence was given by Mr Kevin Oscar, who confirmed that members of the native title party still enjoyed access to the area of the proposed licence to hunt, fish and collect bush tucker and bush medicines (at [26]). The Tribunal said that the evidence provided was not specific as to the number of people involved or the frequency of the activities (at [26]). The Tribunal said that there are ‘established Aboriginal communities within or in the near vicinity of the proposed licenses [the determination also dealt with another proposed licence] which might help support an inference that the community or social activities are of an intensive nature’ (at [27]). The Tribunal noted that Mr Oscar deposed to living in Fitzroy Crossing, some 90 kilometres south east of the proposed licences, and visited the area about once a month (at [27]). The Tribunal stated that ‘[t]here is no suggestion that ceremonies continue to be conducted on a contemporary basis and therefore I cannot find that community or social activities over the ceremonial grounds are likely to be interfered with’ (at [29]). Mr Oscar’s limited evidence in relation to social and community activities can be distinguished with that provided in the present matter by Mr Andrews. Mr Andrews lives in a community relatively close to the proposed tenement, and has provided evidence in relation to contemporary social and community activities, as outlined earlier in this determination, and also below.

Aboriginal communities

The Tribunal map shows that there are five Aboriginal communities in close proximity to the proposed licence:

Munmarul, located approximately 37.5 kilometres to the north east;
Wamali, located approximately 22.5 kilometres to the south;
Galamanda, located approximately 25 kilometres to the south;
Biridu, located approximately 45 kilometres to the south east; and

Imintji, located approximately 37 kilometres to the north east of the proposed licence.

As outlined earlier in this determination, Mr Andrews lives at Biridu community.

There are a further three Aboriginal communities in a wider radius of the proposed licence- up to approximately 80 kilometres from it: Windjingayre (north west); Jimbalakudunj (south west) and Paradise Station (south west).

The number of Aboriginal communities in the area suggests that community and social activities in the area of the proposed licence are likely to be of an intensive nature.

Sites surrounding the proposed licence

While there are no DIA recorded sites located on the proposed licence, there are a number of sites in the area surrounding it. Tribunal mapping shows the density and location of such sites. In several previous decisions, the Tribunal has found that the area including and surrounding the proposed licence is site rich. In the determination dealing with Banjo Wurrunmura (WO08/1016), Member Neville MacPherson stated (at [50]):
‘My findings in relation to s 237(b) are consistent with the findings made by Deputy President Sumner in other objection inquiries involving the native title party (Banjo Wurrunmurra WO04/136 and WO04/137; Banjo Wurrunmurra WO05/756; Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd, NNTT WO07/67 and WO07/68, [2008] NNTTA 157 (21 November 2008); Banjo Wurrunmurra WO07/1013 and Banjo Wurrunmurra WO08/639). The evidence in this matter, and cases referenced above, demonstrate that the area of Fitzroy Crossing itself, and areas to the north and east of it, and extending to the north-west for over 100 kilometres, are areas where there are a considerable number of areas and sites of particular significance to the native title party.’
The number of sites surrounding the proposed licence indicates that it was an area of high Indigenous activity and supports an inference that it is still visited and considered a significant area.

Weighing up the factors

The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is granted. The area of the proposed licence overlaps the area of the native title party’s claim to the extent of 9.8 square kilometres; it is a relatively small tenement. The area of the native title party’s claim is approximately 5,771 square kilometres, much larger than the proposed licence, making it less likely that exploration will impact on community and social activities, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd [2003] NNTTA 62 at [43]-[44]).
In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. However, in Monadee, with similar evidence to the current matter, a prospecting licence was determined not to be an act attracting the expedited procedure. In the current matter, there is no indication of the type of activity the grantee party intends to carry out, over what time, and to what extent, and there is evidence of contemporary social and community activities carried out by the native title party on or near the vicinity of the proposed tenement.
The native title party has provided evidence that the community and social activities of hunting, fishing, camping, teaching young people and following and looking after songlines occur on or near the proposed licence on a regular basis. The native title party is also expressly concerned about water on the proposed licence being interfered with. It appears that the native title party relies on this water for community and social activities such as fishing and camping. The grantee party has provided only limited information, through the Government party submissions, as to their intentions for exploration activities and their attitude towards the native title party and their community and social activities. Taking all of these factors into account, I am of the opinion that the granting of the proposed licence in this matter is likely to interfere directly with the carrying on of the community or social activities of the native title holders.

Sites of particular significance (s 237(b)) / Major disturbance to land and waters (s 237(c))

As the evidence relating to s 237(a) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/2033, it is not necessary to consider whether there is a real risk of interference with sites of particular significance to the native title party in the proposed licence area, or whether major disturbance to land and waters is likely to occur.

Determination

The determination of the Tribunal is that the grant of exploration licence E04/2033 to Francis Robert Salmon and Jamie Dean Duffield is not an act attracting the expedited procedure.

Helen Shurven
Member

19 March 2012