Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd - [2014] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd [2014] NNTTA 32 (24 March 2014)

Application No: WO2012/1067
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

Barbara Sturt and Others on behalf of the Jaru Native Title Claimants (WC2012/003) (native title party)

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Baracus Pty Ltd
(grantee party)
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The State of Western Australia
(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Raelene Webb QC, President
Place:Perth
Date:24 March 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 77, 151, 237

Aboriginal Affairs Planning Authority Act 1972 (WA)
Aboriginal Heritage Act 1972 (WA), s 62
Mining Act 1978 (WA)
Acts Interpretation Act 1901 (Cth), s 36(2)

Cases:Albert Little & Ors on behalf of the Badimia/Western Australia/Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’)
Banjo Wurrunmurra & others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling & others [2008] NNTTA 127 (‘Wurrunmurra v Ling’)
Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins [2005] NNTTA 90 (‘Wurrunmurra v Wasse’)
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 (‘Cheinmora v Heron Resources’)
Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’)
Clara George & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL [2011] NNTTA 59 (‘George v Magnetic Resources NL’)
Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Chalice Gold Mines Ltd [2009] NNTTA 89 (‘Gordon v Chalice Gold Mines’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’)
Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 113 (‘Lungunan v Richmond’)
Freddie and Others v Western Australia (2007) 213 FLR 247; [2007] NNTTA 37 (‘Freddie v Western Australia’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Drew Griffin Money’)
Jaru Native Title Claimants/Western Australia/Golden Granite Pty Ltd/Krama Pty Ltd [2013] NNTTA 123 (‘Jaru v Golden Granite’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri v ASJ Resources’)
Kevin Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (‘Cosmos v Croydon Gold’)
Koongie-Elvire Native Title Claimants/Jaru Native Title Claimants/Western Australia/JML Resources Pty Ltd [2013] NNTTA 127 (‘Koongie-Elvire v JML Resources’)
Little v Oriole Resources Pty Ltd [2005] FCA 506 (‘Little v Oriole Resources’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources No 2’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Maitland Parker and Others/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Parker v Iron Duyfken’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 ('Parker v Western Australia No 1')
Parker v Western Australia and Others (2008) 167 FCR 340; [2008] FCAFC 23 ('Parker v Western Australia No 2')
Raymond Ashwin & Ors on behalf of the Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd [2013] NNTTA 44 (‘Ashwin v Kubwa Iron Ore Holdings’)
Re Cheinmora (1996) 129 FLR 223; [1996] NNTTA 75 (‘Re Cheinmora’)
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd [2003] NNTTA 62 (‘Boddington v Bacome Pty Ltd’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd [2007] NNTTA 82 (‘Barunga v FMG Resources’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Ward v Northern Territory (2002) 169 FLR 303; [2002] NNTTA 104 (‘Ward v Northern Territory’)
Ward v Western Australia (1996) 69 FCR 208 (‘Ward v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)
WF (deceased) & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘WF (deceased) v Kingx No 1’)
WF (deceased) & others on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2013] NNTTA 83 (‘WF (deceased) v Kingx No 2’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Freddie v Asia Investment Corporation’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the
native title party:                   Ms Danica Trewern and Ms Jackie Cole, Kimberley Land Council
Representatives of the
Government party:         Mr Griff Ranson and Mr Rod Wahl, State Solicitor’s Office
Mr Phillip Nell, Department of Mines and Petroleum

Representative of the
grantee party: Mr Matthew Clohessy, Emerald Tenement Services
REASONS FOR DETERMINATION

On 22 August 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4710 (‘the proposed licence’) to Baracus Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
According to the s29 notice, the proposed licence area is approximately 2.8 square kilometres in size and is located 79 kilometres south west of Halls Creek in Western Australia.
The s 29 notice states that if the proposed licence were to be granted, it would authorise the holder to explore for minerals for a term of five years from the date of grant. Any person who is a registered native title claimant in relation to any of the land or waters covered by the proposed licence within the period of four months after the notification day is a native title party who may, within that four month period, lodge an objection with the National Native Title Tribunal (‘the Tribunal’) against the inclusion of the expedited procedure statement in the s 29 notice (see s 32(3) of the Act). The notification date advised in the notice was 22 August 2012, with the four month period for objection closing on 22 December 2012. By the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth) the closing date for lodging an objection became 24 December 2012, the next working day.
The proposed licence area falls wholly within the area of the Jaru native title determination application (WAD45/2012; WC2012/003) (‘the Jaru claim’) which was filed with the Federal Court on 15 February 2012 and was registered from 16 March 2012. The Jaru claim covers an area of approximately 28,915 square kilometres.
On 25 September 2012, an objection against the inclusion of the expedited procedure statement was lodged by the registered native title claimant for the Jaru claim. The Jaru registered native title claimant is the native title party for the purposes of this inquiry.
The expedited procedure objection application was accepted by former President Neate on 12 October 2012 pursuant to s 77 of the Act and President Neate was appointed as the member for the purpose of determining, pursuant to s 32(4) of the Act, whether the grant of the proposed licence is an act attracting the expedited procedure.
Directions were made requiring parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. A preliminary conference held on 30 October 2012 was adjourned to 22 January 2013.
On 19 December 2012 the appointment of President Neate was revoked and Member Shurven was appointed as the member for the purpose of the application. At the adjourned preliminary conference on 22 January 2013, parties advised that they were attempting to reach an agreement in relation to this matter. By consent, the directions were vacated and the matter adjourned for a further four months to a status conference in order to allow time to progress negotiations. At the status conference held on 22 May 2013, the grantee party advised that the parties had not been able to reach agreement and requested that the matter proceed to an inquiry.
On 28 May 2013 Member Shurven issued further directions in preparation for holding an inquiry in this matter.The native title party and the grantee party filed materials in compliance with the directions. The Government party sought, and was granted, an extension of time for filing its statement of contentions. By 9 August 2013, all parties had provided their contentions and supporting documents. On 27 August 2013, due to Member Shurven’s absence on leave, I appointed myself as the member to inquire and to make the determination required by s 32(4) of the Act as to whether the grant of the proposed licence is an act attracting the expedited procedure.
At the listing hearing on 29 August 2013, all parties confirmed they had no further submissions to make and no objection to the matter proceeding to be determined on the papers. Having considered the material provided to the Tribunal, I am satisfied that it is appropriate to determine the matters on the papers according to s 151(2) of the Act.

Legal principles

I have reviewed the legal principles applying to expedited procedure objection applications in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [14]-[21]. It is convenient, for the purposes of this inquiry, to set out that extract in full, as follows:
[14]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.

[15]In relation to s 237 generally, the applicable legal principles are set out by Deputy President Sumner in Walleyv Western Australia at [7] – [11] and are adopted for the purpose of this determination. In summary, they are as follows:
(a) in respect of all three limbs of s 237, the Tribunal is required to make a predictive assessment and look at what is likely to occur (Walley v Western Australia at [8], citing French J in Smith v Western Australia at [23]; endorsed by Nicholson J in Little v Western Australia at [68]-[72]);
(b)     the adoption of a predictive assessment approach means that evidence of a grantee party’s intentions, including as to protection of sites of particular significance, may be relevant but the weight to be given to such evidence will depend on the circumstances of the case. In the absence of evidence of the grantee party’s intentions, the question of likelihood must be assessed by reference to the applicable regulatory regime on the basis that the rights given will be exercised to the full (Walley v Western Australia at [9], referring, inter alia, to Western Australia v Smith at [35]; Silver v Northern Territory at [25]-[32] and [122]);
(c)      no party bears an onus of proof and the Tribunal is required to adopt the commonsense approach to the receipt of evidence explained by Carr J in Ward v Western Australia at 215-218 (Walley v Western Australia at [10]); and
(d)     unless there is evidence to the contrary, the Tribunal will act on the basis that the Government will exercise its powers, including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the law and the regulatory regime, including conditions imposed, which governs the exercise of rights under the grant (Walley v Western Australia at [11], referring to: Western Australia v Smith at [37]; Ward v Western Australia at 228 and 230; Little v Western Australia at [76]-[77]).
[16]In Silver v Northern Territory, Deputy President Sosso usefully summarised the history of s 237(a) at [49]-[62], with which Deputy President Sumner agreed in Walley v Western Australia at [13]-[21], and set out in Tullock v Western Australia at [64]. In summary, the approach is as follows:
(a)     the focus is on ‘community and social activities’ which are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the land (see also Deputy President Sumner’s explanation of this point in Tullockv Western Australia at [66]);
(b)     the term ‘community’ is contextual and ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence needs to be provided to identify the individuals as a community (Silverv Northern Territory at [59], drawing on comments from Deputy President Sumner in Re Cheinmora at 227 and Brennan J in Mabo v Queensland (No 2) at 61);
(c)      the term ‘social activities’ is focussed towards activities of the native title group, though it can encompass activities carried out by an individual or small group in certain circumstances, such as where the activity is relevant beyond the person involved (Silverv Northern Territory at [60]); and
(d)     the level of interference with community and social activities must be substantial rather than trivial (Silver v Northern Territory at [57]; see also Ashwinv Kubwa Iron Ore Holdings at [38] which outlines the need for specific evidence of the substantial impact).
[17]As Deputy President Sosso explained in Silver v Northern Territory (at [88]), s 237(b) focuses the inquiry towards areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title. The applicable principles discussed in Silver v Northern Territory (at [88]-[92], [101]-[102]) are as follows:
(a)     the area or site must be of special or more than ordinary significance to the native title holders (applying Carr J’s explanation in Cheinmora v Striker Resources at 34). In this regard I note it is well established that a site or area may be of particular significance without being recorded on the Government’s cultural heritage register (see Little v Lake Moore Gypsum at [67]);
(b)     if an area or site is of particular significance, it must be known and must able to be located and the nature of its significance explained to the Tribunal (referring to Western Australia v McHenry);
(c) even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;
(d)     generally the relevant area or site will be located within the proposed licence, in order for it to be directly affected by grant. It is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. Examples given in Silver v Northern Territory at [89] are ‘construction of roads, truck movements to and from the proposed licence etc’; and
(e)     there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the “real risk” approach).
[18]As explained in Parkerv Ammon at [35], whilst the Tribunal is entitled to have regard, and give considerable weight, to the Government party’s site protection regime (relevantly in this matter, the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’)), this does not mean that in all cases the protective regime will be adequate to make interference unlikely under s 237(b). This approach was approved by Siopis J in Parker v Western Australia No 1 at [18].
[19]The task of the Tribunal in relation to s 237(c) of the Act is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned: Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50].
[20]In Little v Oriole Resources No 2, the Full Court of the Federal Court considered the construction of s 237(c) of the Act at [41]-[57]. As explained at [41], the condition created by s 237(c) is different in form from those set out in ss 237(a) and (b) in that it requires consideration not only of the relevant future act but also of the effect of the rights created by it. This brings into play a two-step approach in circumstances where there are rights which are not created by the future act itself, but which come into existence as a consequence of things done under the act. For example, a particular future act may empower a person to make decisions or elections or to do things post grant, upon which certain rights subsequently come into existence (Little v Oriole Resources No 2 at [44]). In those circumstances, the Tribunal must undertake a predictive assessment in respect of the effect of rights created by the grant of the proposed licence, and also in respect of the effect of rights (if any) which may come into existence upon some post-grant contingency.
[21]Following Little v Oriole Resources No 2, the approach to s 237(c) is as follows:

(a) section 237(c) requires a consideration of the effect of the relevant future act and also consideration of the effect of any rights created by the future act (Little v Oriole Resources No 2 at [41]);
(b)     the assessment, in respect of both granted and contingent rights, is in relation to what is likely to be done, rather than what could be done (Little v Oriole Resources No 2 at [51]);
(c)     the term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (Little v Oriole Resources No 2 at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413); and
(d)     the Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area (Oriole Resources at [39] referring to Nicholson J in Little v Oriole Resources at [44]), the characteristics of the relevant land and waters, as well as the remedial regulatory regime in place (Freddie v Western Australia at [70]).

Government party contentions and evidence

The Tribunal received the following material from the Government party:
(a)Documents provided on 30 May 2013 as follows:
i.a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the tenement;
ii.a report and plan from the Department of Indigenous Affairs (now the Department of Aboriginal Affairs (‘DAA’)) Register;
iii.a copy of the tenement application received on 9 May 2012 and a draft Tenement Endorsement and Conditions Extract;
iv.draft instrument of licence with first schedule listing blocks included and land not included in the grant; and
v.a tengraph quick appraisal showing the land tenure, native title areas, historical mining tenements and services affected.
(b)Government Party’s Statement of Contentions in Response to the Contentions of the Native Title Party dated 9 August 2013 (‘Government contentions’).
The Tengraph Quick Appraisal establishes that the underlying tenure within the proposed licence area consists of: Crown Reserve 18124 (for the purpose of a Common) covering 35.1%; Crown Reserve 42534 (for the Use and Benefit of Aboriginal Inhabitants) covering 37%; and Vacant Crown Land 134 covering 27.9%.
Previous mining tenements granted over the area are as follows:
(a)four exploration licences, variously existing between 1984 and 2003 and covering between 25.7% and 100% of the proposed licence area
(b)three mining leases, variously in existence between 1992 and 1997, and covering between 9.5% and 64.2% of the proposed licence area; and
(c)four miscellaneous licences, all granted in 1980 and surrendered in 1984, and covering between 3.9% and 37% of the proposed licence area.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DAA, pursuant to the AHA, shows there are three registered sites within the proposed licence area, being:
(a)Bough Shelter Burial (Site ID 12434, skeletal material/burial, open access, no gender restrictions);
(b)Dockerel (sic) Burial (Site ID 12976, skeletal material/burial, open access, no gender restrictions); and
(c)Dockerell Camp (Site ID 12977, man-made structure, open access, no gender restrictions).
The Government party intends to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract. The grant will be subject to the four standard conditions imposed on the grant of all exploration licences in Western Australia, and an additional condition 5, viz:
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aboriginal Reserve 42534.
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:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The licensee [sic] attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependant vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependant vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas (Fitzroy River and Tributaries) the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11.Advice shall be sought from DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Area (Canning-Kimberley) the following endorsement applies:
12.The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.
The Government contentions refer to the intention of the grantee party to conduct initial exploration over the surface area by geological mapping and soil sampling and that early stage works will not require ground disturbing activities: see also [29] below. The Government party contends that there is no basis for a conclusion that the grantee party will not act in accordance with its stated intentions. I agree with that contention.
I note, however, that the grantee party only addresses its initial proposed exploration activities and ‘early stage work programs’, and does not provide any information as to what other exploration activities are likely to occur in accordance with the proposed licence for the whole of the life of the tenement. In my view, in the absence of evidence from the grantee party as to its intentions after the initial exploration and early stage work programs, I agree with the native title party that it is reasonable for the Tribunal to proceed on the basis that the grantee party may, at some time during the life of the tenement, fully exercise the rights conferred by the grant.
The Government contentions are further referred to under the consideration of each limb of s 237 of the Act.

Native title party contentions and evidence

The Statement of Contentions of the native title party (‘NTP contentions’) was received by the Tribunal on 21 July 2013, together with an affidavit of Ms Georgina Yeeda, affirmed on 13 June 2013 and an affidavit of Ms Danica Trewern, affirmed on 17 July 2013. Ms Yeeda lives on Lamboo Station, near Halls Creek, and is a member of the applicant for the Jaru claim. I accept Ms Yeeda has authority to provide evidence for the native title party. Ms Trewern is an employee of the Kimberley Land Council and a representative for the native title party.
Ms Yeeda used to live on the area of the proposed licence area at the ‘old Dockerell campsite’ some 18 years ago, and she still goes out to the area, as do other members of her community. Relevant to the s 237(a) criteria, her affidavit deposes to the activities which she, and others, undertake on the area, as follows:
(a)hunting for emu, goanna and bush turkey;
(b)fishing;
(c)collecting bush tucker;
(d)transferring cultural knowledge and stories; and
(e)going to the area throughout the year, except when the river comes up, to check for people ‘damaging this place or trespassing’ and to care for country.
Ms Trewern’s affidavit contains a description of communications with the representative for the grantee party concerning a ‘Draft HPA’ (which I take to be a draft Heritage Protection Agreement) provided to the grantee party in October 2012. The native title party relies upon this aspect of Ms Trewern’s evidence in support of its contention that the grantee party has not ‘made any serious offer to the NTP to participate in surveys or enter into a dialogue with NTP about identifying ways their activities could minimise interference to NTP community life’ (NTP contentions, paragraph 22).
Ms Trewern also attests to communications between the grantee party and ‘Balangarra’ in respect of three unspecified tenements, apparently unrelated to the present matter. The native title party relies upon this in support of the proposition that the grantee party’s behaviour ‘has caused the KLC to waste resources unnecessarily’, and is ‘not the behaviour of a party who wishes to communicate fully and transparently with the NTP’ (NTP contentions, paragraph 44). In relation to the s 237(b) criteria, the native title party relies upon this aspect of Ms Trewern’s evidence to contend that the grantee party has ‘given no indication of their intention to protect sites in any dialogue with the KLC’ (NTP contentions, paragraph 45). I find this aspect of Ms Trewern’s evidence to be of marginal relevance in the present inquiry, referring, as it does, to uncontextualised communications regarding apparently unrelated tenements.
Insofar as Ms Trewern’s affidavit also attests to the failure to agree a heritage protection protocol satisfactory to both parties, and it is contended that the grantee party has not ‘genuinely engaged’ with the native title party to reach a heritage protection agreement (NTP contentions, paragraph 43), I note the grantee party’s brief contentions indicate its willingness to enter into a Regional Standard Heritage Agreement (‘RSHA’), and its rejection of the agreement provided to it by the Kimberley Land Council. The native title party is aware of the grantee party’s position on this and refers to it specifically in support of its contention that neither the RSHA nor the AHA ‘goes anyway to protect the NTP from interference to their community social activities as encapsulated within s 237(a) limb’ (NTP contentions, paragraph 21, referring to Tullock v Western Australia at [55]).
The passage relied upon in Tullock v Western Australia does not stand for such a broad proposition, and should be confined to its context. The issue to be decided in that matter, following the native title party’s amendment of its contentions, was confined to s 237(a) and whether ‘the grant is likely to interfere directly with carrying on of the community activities associated with “looking after country” as identified in the evidence in this case’ (emphasis added). At [55], the Tribunal said that ‘the existence of a RSHA cannot be a complete answer to this question’. Nonetheless, it may have some relevance to the s 237(a) criteria (see Cherel v Faustus Nominees at [60]) even though ‘designed principally to deal with issues arising under s 237(b) of the Act’ (Tullock v Western Australia at [48]).
Relevant to the s 237(b) inquiry, Ms Yeeda refers in her affidavit to ‘some special burial sites on the exploration license area which...are registered’ as well as other burial places and ‘people who have passed away whose spirit is also in the exploration license area’ (at paragraph 23). There is a story of how a white man killed two Jaru men on the proposed licence area (at paragraph 24). Ms Yeeda also refers to the presence of the spirit of an old man named Bardie, who is Jack Rider’s father, on the proposed licence area as well as the presence of other spirits who protect those who are the right people for the country (at paragraphs 25 and 26). Ms Yeeda deposes that members of the native title party do not stay out on the proposed licence area at night as the spirit, Bardie, would be angry (at paragraph 25), and that when members of the native title party lived on the proposed licence area they did not go places that they know would upset him (at paragraph 27).An uncle of Ms Yeeda is keeping some clothes for another old man who has passed away, to take out to the proposed licence area as it was a special place for that old man (at paragraph 28).
In relation to the s 237(c) criteria, Ms Yeeda’s affidavit refers to concerns that there will be disturbance to burial sites of ancestors or their spiritual places (at paragraph 32). She also refers to requirement for ‘...anyone who is not Jaru to ask permission and direction before they can go out on our country so that they can be accepted by that country and we can protect our special places’ (at paragraph 33). The native title party has not made any contentions in relation to s 237(c).

Grantee party contentions

The grantee party contentions were provided by way of a letter dated 29 July 2013 which briefly outlined its intentions in relation to the proposed licence area, as follows:
(a)initial exploration is to be conducted over the surface area by geological mapping and soils sampling;
(b)access to exploration targets on the proposed licence area will be by existing tracks;
(c)the grantee party is aware of requirements prior to accessing the area covered by Crown Reserve 42534, reserved for the ‘Use and Benefit of Aboriginal Inhabitants’;
(d)all required rehabilitation would be listed in the conditions attached to the grant of the exploration licence;
(e)early stage work programs will not require ground-disturbing activities;
(f)the grantee party is ‘fully aware’ of the requirements of tenement holders under the AHA, and in particular to its obligations regarding the protection of Aboriginal sites under Part 4 of the AHA;
(g)the grantee party has undertaken a search of the proposed licence area through the DAA (formerly DIA) Aboriginal Heritage Enquiry System;
(h)the grantee party is willing to enter into a Regional Standard Heritage Agreement with the native title party, but does not accept the agreement provided by the Kimberley Land Council; and
(i)the grantee party is agreeable to undertaking a heritage survey if required in order to ensure that Aboriginal sites are not disturbed.

Tribunal documents

The Tribunal Geospatial Services team produced a map on 6 September 2013 showing the area covered by the proposed licence, DIA sites, tenure and topography. This map was circulated to parties on 23 September 2013. Parties were requested to provide any comments or objections to the Tribunal’s use of the map by 27 September 2013. No party made contact with the Tribunal in relation to this request.

Interference with community or social activities – s 237(a)

The relevant Aboriginal community for the purposes of s 237(a) is the Jaru people on whose behalf the Jaru claim is made, noting that there is no evidence of any localised, residential community within or close to the proposed licence area whose community or social activities may be likely to be interfered with.
The native title party relies upon Ms Yeeda’s affidavit in support of its contention that the proposed licence area is used for a range of different community activities which are engaged in throughout the year (NTP contentions, paragraph 16). Paragraph [22] above summarises that evidence.
The native title party contends that the proposed licence area is a particularly important place which may have ‘unique qualities compared with the rest of the native title area’, referring to WF (deceased) v Kingx No 1 at [39] (NTP contentions, paragraph 17). In that matter the area said to have ‘unique qualities’ contained a permanent camp for Martu people visited by members of the claim group about twice a month (at [36]), and a ‘sacred men’s area where ceremonial activities were performed before hunting (at [37]: see also WF (deceased) v Kingx No 2 at [56]; George v Magnetic Resources NL at [30]-[32], [36]).
In the context of s 237(a), I accept that the area of the proposed licence is important to the native title party because of its history, in particular that members of the native title party used to live on the area, and it is a familiar area where cultural knowledge can be transferred to younger members of the native title party. I accept that it is also a ‘good hunting’ area. However, I do not consider that these characteristics give the proposed licence area the quality of ‘uniqueness’ as compared with the claim area generally which would diminish the ‘probative value of a comparative analysis of how big the claim area is compared with the size of the [proposed licence area]’(cf NTP contentions, paragraph 17). In this respect I note that the claim in total is 28,915 square kilometres, and the proposed licence area is 2.8 square kilometres.

The Government party accepts that the community or social activities of hunting, fishing, collecting bush tucker and transferring cultural knowledge and stories are carried out on the proposed licence area, but contends that there is no evidence as to how often those community and social activities are carried on by the native title party in the area (Government contentions, paragraphs 57 and 58).
The Government party contends that there is not likely to be direct interference with those activities for the following reasons (Government contentions, paragraph 60):
(a)the grantee party has indicated its willingness to enter into an RSHA type of agreement with the native title party, indicating a willingness to consult with the native title party and avoid activities likely to interfere with the activities of the native title party;
(b)the proposed licence area has been subject to prior mineral exploration and possibly mining activity (see paragraph [14] above), which are likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area;
(c)there are no Aboriginal communities within the proposed licence area;
(d)the low-scale activities of geological mapping and soil sampling planned by the grantee party do not appear likely to have any real disruptive effect upon fishing, hunting, collecting bush tucker, transferring knowledge and telling stories in the proposed licence area;
(e)hunting, fishing and collecting bush tucker and mineral exploration activity are, by their nature, inherently capable of coexistence;
(f)it is difficult to envisage how mineral exploration activity could cause substantive interference with the ability of the native title party to access the proposed licence area; and
(g)given the limited nature of the rights held by an exploration licensee, there is little prospect of access being prevented in any substantial way, even if those rights were exercised in full.
Although Ms Yeeda’s affidavit does not provide any particularly detailed information about the extent and frequency of the use of the proposed licence, there does appear to be some level of frequency in visits by members of the native title party to the proposed licence area to carry out certain activities. Ms Yeeda attests that, apart from when the river is up, she visits the proposed licence area from January to December to check on the land and make sure there is no trespass or damage to special sites. She also states that ‘[t]he exploration license area is an important place and we actively care for the country there’ (at 19).
On the evidence in this matter I would accept that ‘looking after country’ is also a community activity carried out on the proposed licence area: cf Yindjibarndi Aboriginal Corporation v FMG Pilbara at [74], where the evidence did not make apparent any physical activity associated with ‘looking after’ and managing country and sites.
The proposed licence area is relatively small, being only 1 graticular block (2.8 square kilometres). Further, 37% of the proposed licence area is overlapped by Reserve 42534, which is held by the Aboriginal Lands Trust for the Use and Benefit of Aboriginal Inhabitants. According to condition 5 of the proposed licence, the grantee party can only access this area with the permission of the Minister for Mines and Petroleum (see paragraph [16] above). This effectively decreases the area available to the grantee party to access unless Ministerial approval is obtained, as outlined in paragraphs [40] to [45] below.
It is apparent that proposed condition 5 stems from ss 24(7A) – (7C) of the Mining Act 1978 (WA) where:
(a)the written consent of the relevant minister (currently the Minister for Mining and Petroleum) is necessary before exploration can commence over Reserve land covered by Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA); and
(b)before consent is given the Minister for Mining and Petroleum must consult with and obtain a recommendation from the Minister for Aboriginal Affairs.
Although neither the Government party nor the native title party make any express contentions in respect of the regulatory regime applying to Reserve 42534, the protections afforded to that area by the operation of the Aboriginal Affairs Planning Authority Act1972 (WA) and the Mining Act1978 (WA) are relevant to my consideration.
Previous Tribunal findings have been that the regulatory regime applicable to Aboriginal Reserve Land is such that an exploration licence is unlikely to cause the interference or disturbance referred to in s 237 of the Act: see Cheinmora v Heron Resources and cases cited therein at [21]); see also Barunga v FMG Resources at [19].
In Gordon v Chalice Gold Mines at [35], the Tribunal explained:
Access to the Reserve area by the grantee party is only approved by the Minister for State Development [then the relevant Minister] once the Minister for Indigenous Affairs is satisfied that an adequate agreement has been entered into between the grantee party and relevant Aboriginal community. Where the relevant Aboriginal community is a native title party which has objected to the expedited procedure, it can safely be assumed that access is not likely to be granted for exploration unless the matters in s 237 are dealt with to the satisfaction of the objector.
In practical terms, this means that unless the grantee party reaches an agreement with the native title party it will not be able to gain access to that part of the proposed licence area covered by Reserve 42534. The native title party obliquely refers to this in paragraph 22 of the NTP contentions, stating that ‘[t]he need for the Grantee to develop some sort of engagement with the NTP is extenuated by the fact that 37% of the Area is on CR 42534, Aboriginal Lands Trust Reserve’. However, in my view, it does not follow that a failure to ‘engage’ in respect of that area will result in the ‘collision’ of community or social activities and the exercise or rights under the proposed licence, as predicted by the native title party.
To the contrary, proceeding on the assumption that access is not likely to be granted for exploration on Aboriginal Reserve land unless issues of concern have been satisfactorily dealt with, and appropriate conditions imposed, the result is that none of the three limbs of s 237 are likely to be offended in relation to that part of the proposed licence area that is overlapped by Reserve 42534 because of the regulatory regime applying: see paragraph [42] above.
While the native title party’s ability to carry on community and social activities is likely to be unhampered where there is overlap between Reserve 42534 and the proposed licence area, the corollary is that the potential for interference may be enlarged on the remainder of the proposed licence area, due to the smaller area upon which exploration can take place without an agreement for access with the native title party.
However, it is not apparent from the evidence where, on the proposed licence area, the community and social activities of the native title party are carried out, or whether there are any special features which necessitate certain activities occurring at certain places, whether within Reserve 42534 or elsewhere.
As the Tribunal has previously found, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Freddie v Asia Investment Corporation at [13], and more recently, Lungunan v Richmond at [29]). The evidence in this case is not sufficiently specific and is too general to permit of a conclusion that there will be interference of the kind contemplated by s 237(a) (cf Barunga v FMG Resources at [26]; Wurrunmurra v Wasse at [20]).
This conclusion is reinforced by several other relevant factors. The Tribunal’s assessment under s 237(a) of whether there is a likelihood that the grant of the proposed licence will have an impact on social or community activities is ‘in relation to the land and waters concerned’, in short, the proposed licence area. As explained in Boddington v Bacome Pty Ltd at [42], it is relevant to the Tribunal’s task to consider whether the social or community activities take place over a wider region, and whether the proposed licence area comprises only a small proportion of that region.
Here, the proposed licence area is approximately 2.8 square kilometres in size. Of that area, slightly less than 1.8 square kilometres is not subject to the protective regulatory regime described in paragraphs [39] to [44] above. By way of contrast, the area of the Jaru claim is approximately 28,915 square kilometres. Further, when the evidence provided in this inquiry is considered in light of the evidence provided on behalf of the Jaru claimants in other expedited procedure objection inquiries for areas nearby (for example, Koongie-Elvire v JML Resources and Jaru v Golden Granite), particularly by reference to Ms Yeeda’s evidence in the latter inquiry, summarised in Jaru v Golden Granite at [26], it is apparent that the land and waters of the proposed licence area is but a small part of a much wider area regularly accessed by the Jaru people when carrying out community or social activities.
Taking all these factors into account, I am unable to conclude that the grant of the proposed licence is likely to interfere directly with the carrying on of the community and social activities of the persons who are the holders of native title in relation to the proposed licence area, as contemplated by s 237(a) of the Act.

Sites of particular significance – s 237(b)

The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with its traditions. The precondition in the inquiry is the identification of relevant areas or sites of significance.
As noted at paragraph [15] above, there are two DAA Registered Sites within the proposed licence area, and another which overlaps it to a significant extent, but this does not mean there may not be other sites, or areas of particular significance to the native title party, within the proposed licence area or in its vicinity. The Register does not purport to be a conclusive record of all Aboriginal sites in Western Australia (Parker v Ammon at [68]).
The native title party’s evidence directed at s 237(b) of the Act is outlined at paragraph [27] above (see also [24]), and the grantee party’s intended activities are outlined at [29] above in its contentions.
In relation to s 237(b), the native title party states that the proposed licence is located in an area which is ‘site rich’. The native title party contends the term ‘site rich’ can be applied to the proposed licence area, relying upon an extract from the Register of Aboriginal Sites from DAA indicating the presence of three registered sites within, or overlapping, the proposed licence area, said to cover ‘more than 30% of the tenement area’. From the map prepared by Geospatial Services I note that Site 12434 (Bough Shelter Burial Site) falls entirely within Reserve 42534; over half of Site 12976 (Dockerel (sic) Burial Site) and a smaller part of Site 12977 (Dockerell Camp) are also within the Reserve. Part of the registered Dockerell Camp site area extends beyond the proposed licence area into Crown Reserve 18124 (Common).
The term ‘site rich’ is not a defined term in the Act. As explained in Lockyer v Mineralogy at [19], ‘site rich’ has been used as a ‘short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters’: see also Ward v Northern Territory at [82].
In my view it would be incorrect to assume that simply because registered sites cover a significant portion of the proposed licence area the Tribunal will make a finding that the area is, or contains a site or sites, of particular significance in accordance with the traditions of the native title party. It remains a question of fact in each case to be determined by the evidence, and particularly that of a person or persons from the claim group with authority and requisite knowledge to explain the spiritual significance of an area or site, in accordance with tradition: see Lockyer v Mineralogy at [20].
I disagree with the native title party’s assertion (at NTP contentions, paragraph 41) that, where a proposed licence area is shown to be ‘site rich’, there is a presumption that interference is likely so that ‘it is incumbent upon the Grantee to lead some evidence to provide a basis upon which the NNTT might be assured that interference, intentional or otherwise is not likely’. The relevant presumption, applied in numerous determinations of the Tribunal, is that the grantee party will comply with the regulatory regime, and not act in breach of the statute law, regulations or conditions imposed upon them when exercising rights under the proposed licence: see, for example, Silver v Northern Territory at [24]; Murray v Drew Griffin Money at [56]. Of course, the presumption may be negated by evidence to the contrary, but I am satisfied that there is no such evidence in this matter.
As pointed out in Murray v Drew Griffin Money at [57], there are numerous cases where, despite the acceptance of a presumption of regularity that the Government party and grantee party will comply with the AHA, the Tribunal has found, based on the evidence, that there is likely to be interference with sites of particular significance. In those matters it is often the case that the area is demonstrably ‘rich’ in sites. However, it remains appropriate for the Tribunal to first, presume or assume in the absence of evidence to the contrary that the Government and grantee parties will act lawfully; and second, if there is no evidence to rebut this presumption, to assess on the particular facts (including that there are numerous sites in the area) whether there is likely to be interference with areas or sites of particular significance. To be clear, the number of sites is a relevant, but not determinative, factor in the Tribunal’s consideration.
As already noted at [53] above, there may be areas or sites of significance under the terms of s 237(b) of the Act which do not fall within the definition of ‘site’ under the AHA. However, whether there are areas or sites of particular significance remains to be determined on the evidence in the particular inquiry.
The native title party contends that places where members of the native title party (or, more accurately their ancestors) are buried are ‘significant sites’, relying on Ms Yeeda’s evidence. Ms Yeeda refers to registered burial sites on the proposed licence area, one of which is entirely within Reserve 42543, and protected under the regime applicable to Aboriginal Reserves; over half of the other registered burial site (as shown on the map prepared by Geospatial Services) is also within the Reserve: see paragraph [55] above. Ms Yeeda also refers to other burial places within the proposed licence area, but does not identify the location of these places, including whether they are within, or outside of, Reserve 42534.
It is separately contended that there are places of spiritual significance, relying on Ms Yeeda’s evidence (at paragraph 26) about the presence of the spirit of Bardie (Jack Rider’s father) and ‘other spirits out in this area’ who protect members of the native title party. It appears from the evidence that these spirits have a presence generally in the area. Beyond that, I am unable to discern any places of significance connected with these spirits, not the least any places of particular significance. Whether there is a link between the burial sites and the spirit of Bardie and others is unclear from the evidence, but the native title party’s contentions do not themselves draw that link.
In Jaru v Golden Granite, the Tribunal (at [46]) considered that the burial sites of two deceased members of a family who were ‘most connected’ to the area ‘stood out’ from other burial sites in the area and were places of particular significance. In that matter, it was relevant that the country around the proposed licence area was a special place for Uncle Eddie Yarloot and his brother and uncle who had passed away (Annexure B, Affidavit of Georgina Yeeda, paragraph 18).
In the present inquiry, paragraph 28 of Ms Yeeda’s affidavit refers, in almost identical terms, to 'Uncle Eddie Yarloot ... keeping clothes for another old man who has passed away’ referring to the proposed licence area as being a ‘special place’ for the old man. No connection is drawn between the old man who has passed away, and any of the families identified in paragraph 12 of Ms Yeeda’s affidavit as being connected to the proposed licence area.
Upon close and careful analysis of the evidence, I am unable to find a basis for concluding that the burial sites described in this matter are sites of particular significance. The burial sites which are said to be within the proposed licence area do not ‘stand out’ from the general background of other sites and the country as a whole and, in my view, have not been shown to be of special or more than ordinary significance to the native title holders.
Even if the evidence had disclosed relevant areas or sites of particular significance, I note that the grantee party will be conducting exploration, rather than mining activities, on the land. I accept that exploration activities are of their nature relatively low impact, but for the purposes of s 237(b) even slight interference of a physical nature may be unacceptable. I accept that some burial sites may be particularly vulnerable to physical disturbance or damage. However, there must be something in the material before the Tribunal which enables it to draw a conclusion that there is a real chance or risk of interference with the area or site, including burial sites.
It is contended by the native title party that ‘[m]ere presence at some areas may cause direct interference’ (NTP contentions, paragraph 46). No evidence is referred to for that proposition, and I am unable to find any basis for it in the material provided.
The native title party also contends that the grantee party’s efforts to engage with the native title party are material in considering the risk of interference with sites of particular significance in the proposed licence area (NTP contentions, paragraph 42). As already discussed at paragraph [25] above, the native title party alleges that the grantee party has not genuinely engaged with it to reach a heritage protection agreement, relying on the affidavit of Ms Trewern (NTP Contentions, paragraph 43).
The primary concern of the native title party in this respect appears to be the prospect that the grantee party will not conduct heritage surveys prior to ‘going out on country’. I have already noted the willingness of the grantee party to enter into a RSHA; in addition it has indicated its willingness to undertake a ‘heritage survey if required to ensure that Aboriginal sites are not disturbed’ (paragraph [29] above).
In Wurrunmurra v Ling the grantee party indicated its commitment to carry out heritage surveys at later stages of exploration, but not in respect of earlier stages where it intended to rely upon locating Aboriginal sites by ‘visual means’ before notifying the native title party for assessment prior to ground disturbance (at [52]-[53]). In those circumstances, the Tribunal found that ‘normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the identified area and sites of particular significance’ (at [54]). I am not faced with the same circumstances in this case.

In the present matter, albeit that the grantee party has provided only limited contentions, it has expressed its willingness to engage with the native title party to conduct heritage surveys to avoid interference with sites, and to sign a RSHA, although the agreement proposed by the native title party is not acceptable to it.
While I do have some concerns about the apparent lack of response by the grantee party to the ‘Draft HPA’ provided to it by the native title party, as detailed in Ms Trewern’s affidavit at paragraphs 1 to 8, it does not give me cause to doubt the willingness of the grantee party to engage with the native title party in respect of heritage surveys where required in respect of its exploration activities. Nor is that ‘concern’ sufficient to displace the presumption that the grantee party will comply with the regulatory regime, and not act in breach of the statute law, regulations or conditions imposed upon them when exercising rights under the proposed licence: see paragraph [59] above.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see, for example, Parkerv Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Cherelv Faustus Nominees (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
The grantee party is on notice about the existence of two burial sites currently on the DAA Register (and which are outlined at paragraph [15] above) and the evidence given in this matter has put the grantee party on notice about the possible existence of other burial sites within the proposed licence area that are also protected under the AHA. I am satisfied that the regulatory regime will be sufficient to prevent interference with these sites, noting that the grantee party will not be able to rely on the defence in s 62 of the AHA that it did not know or could not reasonably be expected to have known of the existence of an Aboriginal site on these areas.
Here, even if (contrary to my conclusion) there are burial sites which are sites or areas of particular significance, the regulatory regime under the AHA, and the regime applicable to Reserve 42534, together with the expressed intentions of the grantee party to undertake heritage surveys when required to avoid interference with sites, leads me to conclude that the grant of the proposed licence is not likely to interfere with areas and sites of significance to the Jaru people, in any event.

Major disturbance to land and waters (s 237(c))

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Littlev Oriole Resources No 2 at [41]-[57]).
The native title party’s evidence in relation to s 237(c) is outlined at paragraph [28] above, and the grantee party’s intended activities are outlined at paragraph [29] above.
The native title party has made no contentions in relation to s 237(c). Insofar as Ms Yeeda’s evidence suggests that the native title party have a particular process which they prefer to go through when strangers enter their country, I do not consider the fact of strangers entering country without going through that process involves a ‘major disturbance’ to land or waters in the sense contemplated by s 237(c). Section 237(c) of the Act is only enlivened when there is, in fact, a significant, direct physical disturbance of land and waters by the grantee party, and does not involve interference with ‘rights’ of the native title party outside of that context.
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including:
(a)     the conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
(b)    the endorsement to be placed on the proposed licence dealing with water; and
(c)     the endorsements on the proposed licence directing the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
On the material before me, I am satisfied that the grant of the proposed licence, or the exercise of the rights created, is not likely to cause that major disturbance to land and waters within the meaning of s 237(c). The native title party does not contend otherwise.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E80/4710 to Baracus Pty Ltd, is an act attracting the expedited procedure.

Raelene Webb QC
President
24 March 2014