Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/William Robert Richmond - [2010] NNTTA 167

NATIONAL NATIVE TITLE TRIBUNAL

Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/William Robert Richmond, [2010] NNTTA 167 (14 October 2010)

Application No: WO08/1086

IN THE MATTER of the Native Title Act1993 (Cth)

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

Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants (WC00/10) (native title party)

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The State of Western Australia (Government party)

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William Robert Richmond (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  14 October 2010

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – unsigned/unsworn affidavit not accepted as evidence – expedited procedure attracted.

Legislation:Native Title Act 1993 (Cth), ss 25-44, 109, 148, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 24(7), 63, 111A
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Allarrow Pty Ltd, NNTT WO08/273, [2010] NNTTA 36 (19 March 2010), Daniel O’Dea
Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/Arnhem Resources Pty Ltd, NNTT WO09/312, [2010] NNTTA 132 (16 August 2010), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, NNTT WO09/401 and WO09/519, [2010] NNTTA 133 (18 August 2010), Daniel O’Dea
Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Solicitor for the

native title party: Ms Hema Hariharan, Kimberley Land Council

Representative of the

native title party: Ms Ania Maszkowski, Kimberley Land Council

Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Representatives of the Mr Greg Abbott, Department of Mines and Petroleum

Government party: Ms Claire Malavaux, Department of Mines and Petroleum

REASONS FOR DETERMINATION

On 30 July 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E80/4076 (the proposed licence) to William Robert Richmond (the grantee party) and included in the notice a statement that it considered that 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 comprises an area of 74.76 square kilometres, located 78 kilometres south east of Fitzroy Crossing, in the Shire of Halls Creek and is entirely overlapped by the Gooniyandi Combined #2 registered claim (WC00/10 – registered from 23 April 2001).
On 30 November 2008, Butcher Cherel and Others on behalf the Gooniyandi Combined 2 native title claimants (the native title party), made an expedited procedure objection application to the Tribunal.
No other native title claims overlap the proposed licence area.
In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period from the s 29 closing date for the lodgement of objections (1 December 2008), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a status conference on 4 June 2010, following a number of conferences and requests to extend the time required for compliance with directions in an attempt to negotiate a heritage protection agreement, the grantee party representative reported that negotiations had broken down because of issues concerning the possibility of uranium exploration. The grantee party and Government party representatives requested that the matter proceed to an inquiry.
The Tribunal understands that the uranium issue became one of dispute very late in these negotiations. Self-evidently, it is unacceptable that a process that is an expedited procedure one should take well over two years to resolve. The Federal Court and Tribunal have made it clear that expedited procedure objections should be resolved as quickly as possible (Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]); Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [82]-[85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)).
A practice has developed, generally supported by all parties to such inquiries, of permitting a period of negotiation following lodgement of the objection to enable parties to explore the possibility of reaching agreement which usually leads to withdrawal of the objection. This latitude has been permitted because it is desirable for these disputes to be resolved by agreement as a matter of principle (the Act has as a central theme the reaching of agreement through negotiation and mediation) and also as a matter of practicality. If all matters were to proceed to inquiry and determination the resources required by all parties, including the Tribunal, would be very substantial. The Tribunal does not consider that sufficient resources would be available to any of the parties (including the Tribunal in light of its recent budget cuts) to process all objections in Western Australia by way of formal inquiry and determination. The Tribunal is cognisant of the limitations on the funding available to Native Title Representative Bodies to deal with future act matters and has made both Commonwealth and the Western Australian Governments aware of its concerns in this respect.
Despite the Tribunal’s preparedness to tailor its procedures, even for expedited procedure objections, to encourage agreement, all parties should understand that the sort of delays which occurred in this case have the potential to bring the right to negotiate procedures in the Act (Subdivision P of Division 3 of Part 2 (ss 25-44)) into disrepute. The Tribunal understands that this matter was part of broader negotiations with the grantee party to attempt to resolve a number of other matters on a regional basis. Despite the desirability of this objective, the delays involved were unacceptable. The Tribunal is aware that in some other matters unacceptable delays have occurred because of the parties’ attempts to deal with large number of objections including on a regional basis. The Tribunal makes the following observations.
First, while the Tribunal encourages parties to reach agreements on a regional basis or where they will act as a standard precedent for future objections, these negotiations must be concluded within a reasonable time.
Second, the Tribunal is aware that sometimes delays occur because of the failure of grantee parties properly to engage in the process. In some cases the Tribunal suspects that this is convenient to grantee parties as they can hold onto the ground while the right to negotiate processes are completed without any of the obligations (expenditure and otherwise) which are imposed on them once an exploration or prospecting licence is granted. The Tribunal considers that the Government should review or re-emphasise the guidelines it gives to grantee parties with a view to highlighting the requirement to involve themselves in the native title process and setting out the consequences of not doing so in a clear and unequivocal manner. The possibility of taking action under s 111A of the Mining Act1978 (WA) to refuse an application on the basis that it is not in the public interest for a mining tenement application to be granted (s 111A(1)(c)) where a grantee party fails conscientiously to attend to the processes required by either the Mining Act or Native Title Act could be reaffirmed.
The Tribunal confirms that where there is a failure of grantee parties to engage in the process for which there is no reasonable explanation then objections will be held in abeyance in the non-participating grantee parties list.
Third, the Tribunal considers, as a general proposition, that it should be possible to reach agreement on objection matters within 12 months of their lodgement at the very outside. The Tribunal’s performance standards provided to Parliament as part of its Portfolio Budget Statement and referred to in its Annual Report include that 80 per cent of objections resolved other than by agreement are to be finalised within nine months of the s 29 closing date and 70 per cent of objections resolved by agreement are to be finalised within nine months of acceptance of the objection. In the financial year 2008-2009 these standards were substantially met in the case of objections resolved other than by agreement in that 79 per cent were finalised within the specified time but not met in the case of objections resolved by agreement in that 61 per cent were finalised in the specified time. In the last financial year (2009-2010) both standards were met. In the case of objections resolved other than by agreement 86 per cent were finalised within the specified time and in the case of objections resolved by agreement 74 per cent were finalised within the specified time.
These performance standards are adversely affected if significant numbers of objections are not resolved within 12 months. For this reason, where objection matters are approaching 12 months old the Tribunal will expect either agreement to be reached or directions to be complied with and directions with springing orders will normally be imposed automatically dismissing the objections for failure by the native title party to comply with directions.
Fourth, the Tribunal has recently had a substantial cut to its budget. As a consequence the Tribunal will be concentrating on performing its mandatory functions which includes mediation and inquiry under the right to negotiate provisions of the Act. The Tribunal will no longer have the resources to provide some of the assistance which it has provided in the past. In particular, the Tribunal will not have the capacity to follow matters up with parties where there have been delays or failure to comply with directions or failure to take other action which parties committed themselves to during preliminary and status conferences and direction hearings. Parties should be aware that the onus is on them to ensure that timelines are met and directions complied with and should not rely on the Tribunal to assist them with reminders as may have been the case in the past.

Compliance with directions

The Government party lodged its contentions and evidence by 7 May 2009.
The background to compliance with directions by the native title party can be summarised as follows. On 4 June 2010, when it became apparent that negotiations had broken down, I made directions in the usual form for the native title party to provide by 27 July 2010 a statement of contentions; a copy of each document relevant to the inquiry (including any affidavit to be relied on); and a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit; and details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers. A direction in the nature of a ‘springing order’ was also made which dismissed the objection if the above direction was not complied with by close of business on 27 July 2010. The grantee party was directed to provide its contentions and evidence by 3 August 2010 and a listing hearing was set for 5 August 2010.
The native title party lodged a Statement of Contentions and the unsigned and unsworn affidavit of Billy Chestnut on 28 July 2010. It could be argued that the directions were not complied with in that technically no ‘affidavit to be relied on’ had been provided by the native title party and that dismissal of the objection was justified pursuant to s 148(b) of the Act. No submissions were made by the other parties that the objection was dismissed automatically pursuant to the springing order and I have taken the view that this did not happen because of the substantial compliance by the native title party. On 3 August 2010, the grantee party lodged its Statement of Contentions.
Following the Listing Hearing on 5 August 2010, the native title party requested the opportunity to respond to the grantee party’s contentions.
At the Listing Hearing on 5 August 2010, Ms Ania Maszkowski (of the Kimberley Land Council (KLC)) the native title representative advised that Mr Chestnut’s signature to the affidavit could be obtained at a Gooniyandi meeting on 26 August 2010. On 10 August 2010, I directed that on or before 30 August 2010 the native title party was to provide to the Tribunal and all other parties a signed and sworn affidavit in the same terms as the unsigned affidavit previously provided and that in the event that a signed affidavit could not be obtained the native title party representative is to provide a sworn statement setting out the process used to gather information recorded in the unsigned affidavit.
On 12 August 2010, Ms Hariharan provided further submissions and the unsigned and unsworn affidavit of Jimmy Shandley and advised that the native title party would be able to forward the sworn/affirmed affidavits of Billy Chestnut and Jimmy Shandley by Monday, 30 August 2010.
On 12 August 2010, Ms Hema Hariharan (of the KLC) solicitor for the native title party also advised the Tribunal and other parties by email that: ‘with respect to the collection of evidence, on ground KLC staff interviewed the deponents and recorded information regarding the tenement area for both affidavits from Billy Chestnut and Jimmy Shandley prior to their submission to the Tribunal’. This statement does not comply with the strict terms of the directions (which required a sworn statement) and provided no details of the process for obtaining the information, including how long it took or where and which staff were responsible.
On 13 August 2010, the grantee party provided contentions in reply to the native title party’s submissions of 12 August 2010.
On 8 September 2010 in response to a request from the Tribunal, the KLC advised that the signed affidavits for this matter would be obtained ‘next week’.
On 22 September 2010 an executed affidavit of Jimmy Shandley which had been affirmed by him on 14 September 2010 was lodged with the Tribunal. The ‘affidavit’ of Billy Chestnut provided on 28 July 2010 has still not been executed and sworn or affirmed.
On 24 September 2010 the Tribunal wrote to all parties seeking submissions on whether the Tribunal should accept as evidence the remaining unsigned and unsworn affidavit (i.e. of Billy Chestnut). On 30 September 2010 the grantee party submitted:
‘Of particular concern to the Grantee Party is that the wording of substantial parts of the unsworn affidavits are almost identical suggesting they were prepared to formula and do not reflect the words of the deponent.
The Grantee Party refers to the following relevant general principles referred to in Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 at [13]-[18] as cited in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318-321, [2010] NNTTA 15 (8 February 2010):
·Section 109 of the Act is relevant to this issue in that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (s109(1)) and that in carrying out its functions is not bound by technicalities, legal forms or rules of evidence (s 109(3)).
·Although given a wide degree of latitude in carrying out its statutory functions by not being bound by the rules of evidence, this does not mean that the Tribunal will invariably disregard them.
·Whether complying with the rules of evidence or not the information before the Tribunal must be logically probative and relevant to the issues before it.
·In expedited procedure inquiries (as in native title proceedings generally) the best evidence provided on behalf of native title party interests generally comes from the native title holders themselves.
In each of the cases noted in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318-321, [2010] NNTTA 15 (8 February 2010), the native title party’s affidavit were either marked by the deponents (although not properly sworn) or an explanation as to how the affidavit was prepared was provided to the Tribunal.
In Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Allarrow Pty Ltd, [2010] NNTTA 36 (19 March 2010) , the Tribunal held that it is extremely important that all efforts be made to ensure that documents are properly sworn and witnessed when they are presented to the Tribunal. In the present circumstances, there is no evidence that any efforts have been made to have the documents sworn.
In the event that the Native Title Party was unable to obtained signed affidavit, the representative for the native title party was permitted to provide a sworn statement setting out the process used to gather information recorded in the unsigned affidavit. No such statements have been filed. Further, no reason has been provided why such sworn statements were not filed.
In the circumstances, there is no indication of who took the affidavit, when and how the affidavits were taken and whether the deponents, read, understood and agreed with the contents of the affidavit or were shown the map that it to be annexed to the affidavit. This raises serious concerns about the integrity of the evidence.
In the circumstances, the Tribunal ought not accept the affidavits. Alternatively, if it is minded to accept the affidavits, it is contended that the affidavits should be given no weight.’
On 1 October 2010 the Government party advised that it was of the same view as the grantee party.
In my view the native title party has not complied with the Tribunal’s directions made on 10 August 2010 in that an executed and sworn affidavit of Billy Chestnut or an affidavit from the KLC deposing to the circumstances of the preparation of his draft affidavit have not been lodged with the Tribunal. A case could be made to dismiss the objection pursuant to s 148(b) of the Act. However, in the absence of a request to dismiss from either the Government or grantee parties I have refrained from adopting this course.

The grantee party (supported by the Government party) have submitted that the unsworn affidavit of Billy Chestnut should not be received into evidence or if it is then no weight should be given to it. The native title party says (12 April 2010) that the Tribunal has accepted unsworn affidavits in the past and that because of the remote location of Traditional Owners and KLC resources, at times the KLC are not able to affirm or swear affidavits by the compliance date. They say that the KLC endeavours to do this as soon as practicable after the due date.
The Tribunal dealt with the receipt of evidence which falls short of being a formal affidavit in Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 (Hughes) (at [12]-[18]) and the Tribunal’s practice was summarised in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner (at [18]-[28]). More recently Member O’Dea has considered this issue in Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Allarrow Pty Ltd, NNTT WO08/273, [2010] NNTTA 36 (19 March 2010) (Evelyn Gilla) at [28]-[29] and Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, NNTT WO09/401 and WO09/519, [2010] NNTTA 133 (18 August 2010) (Wanjina-Wunggurr) at [23]-[25].
It is correct that the Tribunal, based in part on s 109(1) of the Act (which requires the Tribunal to pursue the objection of carrying out its functions in a fair, just economical, informal and prompt way (s 109(1) and not being bound by technicalities, legal forms or rules of evidence (s 109(3)) has adopted a flexible and informal approach to the receipt of evidence which has led it to accept unsigned and unsworn ‘affidavits’ from the native title party as witness statements where there has been no objection from the other parties. However, as Member O’Dea has pointed out, where objection is made some form of authentication of the document is required before it can be accepted. The Tribunal’s requirements in this respect are not onerous. In the case of Hughes the document in affidavit form was authenticated by the affixing of a mark in the presence of a witness. The Tribunal has also accepted a witness statement where details of the manner of its preparation has been deposed to by the taker of the statement (Evelyn Gilla at [25]).
Based on those principles I am not prepared to accept the evidence of Billy Chestnut. In exercising my discretion in this respect I have also had regard to the fact that the native title party did not comply with the Tribunal’s direction to provide the sworn affidavit of Billy Chestnut by 30 August 2010 and that it is now 11 weeks since his unsigned affidavit was filed on 28 July 2010.
Given the delays which have occurred in resolving this matter and the fact that since 4 June 2010 the native title party has known that the matter is proceeding to an inquiry I am not prepared to permit further time for the affidavit to be lodged.
My determination is therefore based on the evidence (excluding the unsigned and unsworn ‘affidavit’ of Billy Chestnut). However, for the record I observe that even if this affidavit had properly been before the Tribunal a determination that the expedited procedure is attracted would still have been made.
Parties agreed that the inquiry be heard ‘on the papers’, that is without holding a further hearing. Although the documentary evidence does not now include all the material submitted by the native title party, I am satisfied that the objection can be adequately determined on the papers (s 151(2)) given the reasons for the failure to file evidence.

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 v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley), I considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence as described in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (DMP). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, amongst other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (Maitland Parker) at [31]–[38], [40]-[41]. (See also the Federal Court dismissal of a native title party appeal from this determination in Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 and Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340.)

Evidence in relation to the proposed act

Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

Mt Pierre Indigenous Owned Lease 398/806 (97.2 per cent overlap);
Vacant Crown Land (2.7 per cent overlap);
Road Reserve (less than 0.1 per cent overlap).

There is a National Heritage Listing (NHL/106063, The Kimberley) over the entire area of the proposed licence under the jurisdiction of the Department of Environment, Water, Heritage and the Arts. According to the Department’s website, the status of NHL/106063 is ‘Ministerial request for assessment’.
There are no Aboriginal communities identified inside the area of the proposed licence however there is one community (Galeru Gorge) some 12 kilometres south east of the subject area and others some 20 kilometres to the south of it. There are other Aboriginal communities in the vicinity of Fitzroy Crossing which is some 78 kilometres to the west but these are of less relevance to the present matter.
Department of Indigenous Affairs (DIA) documentation provided by the Government party and native title party reveals no registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (AHA) overlapping the tenement area.
Government party documents indicate that petroleum exploration permit PA67 overlaps the proposed licence at 67.2 per cent. There is no current mineral exploration or mining activity in the area of the proposed licence however four exploration licences and one temporary reserve were active variously between 1963 and 2007.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities (conditions 5-6).
In addition, the grant of the proposed licence will also be subject to the following condition (see email from Mr Greg Abbott of Department of Minerals & Energy dated 29 September 2010):
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the [native title party], the applicants in Federal Court application no. [insert number] [insert (WC No)], such request being sent by pre-paid post to reach the Licensee’s address [set out address for service] not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the [native title party] the Regional Standard Heritage Agreement ("RSHA") endorsed by peak industry groups (e.g. the Goldfields/South West/ Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA ) and offered by the Kimberley Land Council”.’

The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.

The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.

Evidence provided by the native title parties

The affidavit of Jimmy Shandley (JS affidavit) is made in the following terms:
‘I, Jimmy Shandley, pastoral worker, from Gogo Station, Fitzroy Crossing in the State of Western Australia, affirm:
1.I am a member of the Gooniyandi native title claim group and the Gooniyandi Native Title Determination Application (WC00/10).
2.My aboriginal name is Lungingn and I belong to the Jooroo skin group. I was born on the 1^st of January 1953 on Gogo station.
3.I am connected to Gooniyandi country through my great-grandmother Maggie Jumulu on my father’s side. Her country was Mud spring Mt Pierre station and approximately 5 KM from the Exploration Licence Area. I now look after this area.
4.I know the area where Drill Gold Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E80/4076, the “Exploration Licence Area”, very well I still visit that area. The map I was shown of the Exploration Licence Area are attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The Exploration Licence Area is close to Galeru Gorge community and Mingalagaliwa (old Bohemia Downs homestead) community. There is a road from Mingalagaliwa that travels north through the Exploration Licence Area and crosses the Louisa River to Mud Springs. The communities are south of the Exploration Licence Area.
6.There are other roads that travel through the Exploration Licence Area, one leads to Galereu Gorge and another joins the old telegraph road that heads towards Margaret River. We use these roads when we are going camping, fishing and hunting.
7.Mud springs to the east of the Exploration Licence Area is an old living spot and is very important to my family.
8.Mud Springs is called Walarri in Gooniyandi. My father use to live at Mud Springs. My family and the Chestnut family are trying to establish Mud Springs as a living spot again. We are travelling there more and more each year.
9.Louisa River is called Yarloo in Gooniyandi. There are good fishing spots on Louisa River after the wet season when there is water at this end of the river. The flood area is also a good place to catch goanna. We use a stick, rifle or crowbar to hunt goanna.
10.I went to Mud Springs crossing the Louisa River through the Exploration Licence Area in July 2010 and have another trip planed in August this year. We travel to this area after the wet season when it is accessible.
11.There bush foods all through the Exploration Licence Area. In the Exploration Licence Area you can get Bush Coconut called Balabi, and there is also a sap that comes out of a tree there called Munduwa that kids go crazy for. Birriwirr and is a sweet from the gum tree.
12.Bloodwood sap comes out of the tree it is a medicine. It is used to put on skin sores to heal them, which you put on the sores. It is called Girrily. Girrily is also used to polish up the Coolamon. The tree for making Coolamon is found inside and the Exploration Licence Area Jadalu (Corkwood tree).
13.My father and old Joe Timay took me through the Exploration Licence Area on horseback and taught me about these places when I was a young man. I know this country by riding horseback.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
14.I know Gooniyandi country and the Exploration Licence Area very well. There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance.
15.The old people used to do camp inside the Exploration Licence Area. They used to tell stories.
16.Old people did ceremonies in and around the Exploration Licence Area and have to teach the young people in all that and those places.
17.There are many sites in that area of the Exploration Licence Area that we don't want people disturbing or ruining. We have very important places there.
18.There is a song line called Gunianbarrarra (Kangaroo Dreaming) that travels through the Exploration Licence Area. It starts up at Mount Huxley (Birndoowa) and travels directly through the middle of the Exploration Licence Area to Koompoorrngoo and then links in with the Walmajarri law in the desert. This is a very important dreaming for Gooniyandi men therefore it must be looked after. It is a very important area.
19.Anything that happens along this song line will affect not only the Gooniyandi Law but also the Walmajarri Law because they are interconnected in this song line.
20.My father practiced both the Gooniyandi and Walmajarri law for that area. There are people that still hold songs for that song line through the Exploration Licence Area. The teaching of this song line will continue on into the future.
21.It is important for us to look after this country; this is what our old people wanted. We have to make sure that these places are kept for our children and grandchildren. We don't want these places to finish.
22.Mining companies should ask permission and show us respect as the Traditional Owners of that Country. How would they feel if we did that same thing to their place without asking? They don't know this country, and they don't know what they could be disturbing, interrupting and ruining. There might be law happening, there might be funerals. Strangers are not meant to come near communities and our special places during these times.
23.There are artefact scatters that our old people left around on that country where the Exploration Licence Area is, you might not be able to see them and we don't want anyone to touch them.
24.The water areas are very important to Traditional Owners of the area.
25.We are looking after all the important places in our country. We are passing on these stories to our young people.
MAJOR DISTURBANCE TO LAND OR WATER
26.Strangers must ask permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We know that strangers don't follow our Law, that's why they have to slow down and come and meet with us. The same is for blackfellas from another area. They need to come and see us first and get permission to come onto country.
27.If the ground is disturbed where that song line is then it will affect the song line all the way to the desert and the Walmajarri people will hold us responsible. It will make life very uncomfortable for everyone.
28.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings.’
The evidence of Jimmy Shandley is uncontested and I accept it. Mr Shandley says he is a member of the Gooniyandi native title determination application. Although not a person comprising the applicant and registered Gooniyandi native title claimant, I accept that he is a member of the claim group and has the necessary authority to speak for the country, relevant to these proceedings, on behalf of Gooniyandi.

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 parties (in the sense of there being a real risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23])) (Smith). 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 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas, s 24(7) in relation to reserve land and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]) and in the present case the reserve land is a very small area and of little importance.
Tribunal mapping establishes that the Aboriginal community of Ngalinkadji, at which Billy Chestnut resides, is located approximately 50 kilometres to the south east of the proposed licence. There are other Aboriginal communities in the vicinity of the proposed licence area, namely Galeru Gorge, Mingalkala, Mimbi, Bawoorrooga, Gilly Sharpe and Ngumpan. These communities are all located within the Gooniyandi claim area and are located between 12 kilometres (Galeru Gorge) to 30 kilometres to the south from the proposed licence. Mr Shandley deposes that his family and the Chestnut family are trying to establish Mud Springs as a living spot again (JS affidavit, para 8). While Tribunal mapping was unable to locate Mud Springs, Mr Shandley deposes the location of Mud Springs is five kilometres east of the proposed licence area (JS affidavit, paras 3, 7). I can infer that members of the native title claim group reside either temporarily or permanently at these places, other than Mud Springs, although there is no evidence of the number of people who reside there or whether their presence is seasonal or not.

The evidence of Mr Shandley does not establish that there are community or social activities of the native title party carried out to such an extent that they are likely to be interfered with by exploration activities. While Mr Shandley and others travel to Mud Springs there is no permanent settlement there yet. Further it is not on the area of the proposed licence and travelling to it even if this occurs through the proposed area is not likely to be interfered with by exploration. The evidence of Mr Shandley’s visit to Mud Springs and crossing the Louisa River is limited to one visit in July 2010 and another one that may have occurred in August 2010. The evidence relating to bush medicines is general and does not indicate how often the area is visited for the purposes of collecting them. Other evidence is of an historical nature. The reference to fishing on the Louisa River and hunting and gathering activities is of a general nature. Only a small part of the Louisa River runs through the eastern edge of the proposed licence area and the exploration activity is not likely to have any substantial effect on the native title party’s community or social activities associated with it, particularly as the community or social activities also take place on the balance of the river which extends well outside the proposed licence area.
The evidence establishes that some exploration activity has occurred in the proposed licence area over the years but given its extent I do not regard the impact these activities have of any significance in this matter. The past pastoral activity has probably effected the capacity of the native title party to carry out its traditional, social or community activities to some extent, but as the Tribunal understands that currently the pastoral lease is managed and run by members of the Gooniyandi native title party there is not likely to be a great impact on the capacity of the native title party to carry out its social or community activities by virtue of pastoral activities.
Government party documentation reveals that the area of the proposed licence which overlaps the native title party’s claim area in these proceedings is 7476.87 hectares. The area of the Gooniyandi Combined #2 claim is approximately 11,209 square kilometres, much larger than the area of the proposed licence thus making it less likely that exploration on the subject area will impact on community and social activities, which I can infer are likely to be carried out over a broader area.
The Tribunal also has 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 taking place. Given the nature and extent of a native title party’s community or social activities evidenced in this case I am satisfied that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (AHA) shows there are no registered sites within the tenement, but this does not mean there may not be other sites or areas of particular significance over the area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (Butcher Cherel) (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Mr Shandley attests that inside his ‘country’ there are many places ‘including inside the exploration licence area, which are very important and have great significance’ (JS affidavit para 14). He attests to artefact scatters that are ‘left around on that country’ (JS affidavit para 23) and that ‘the water areas are very important to Traditional Owners of the area’ (JS affidavit para 24).
Mr Shandley talks of a song line called Gunianbarrarra or Kangaroo Dreaming starting at Mount Huxley, which Tribunal mapping locates some ten kilometres north east of the proposed licence, and travelling directly through the proposed licence. Mr Shandley’s affidavit states that ‘this is a very important dreaming for Gooniyandi men’ (para 18) and that that ‘anything that happens along this song line will affect...Gooniyandi Law’ (para 19). Because of its nature as a song line I can accept that this is an area or site of particular significance to the native title party in accordance with their traditions.
The deponent’s statement in relation to artefact scatters do not identify specific sites in any way, nor their location and do not establish that they are sites of particular significance to the native title party.
The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make a predictive assessment in accordance with s 237(b) of the Act. Apart from the Gunianbarrarra song line the evidence on this topic is not specific and I cannot make a positive finding that there exist any other sites of particular significance to the native title party within the proposed licence area. The evidence does not establish that the proposed licence area is so rich in sites as to lead to a likelihood of interference with them despite the regulatory regime in place. I can see no reason why the protective regimes under the AHA and the presumption of regularity should not be sufficient to ensure that there is unlikely to be interference with any sites of particular significance which may exist.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and their contentions state they are willing to enter into a Regional Standard Heritage Agreement (RSHA) in the form approved by the Government Party (GPSC para 27). The grantee party has said that it understands its obligations under the AHA and will comply with it (GPSC para 25). I accept that the grantee party will act lawfully and in accordance with the AHA.
The Government party will also place a condition on the grant that will require the grantee party to execute a RSHA in favour of the Gooniyandi #2 People within thirty days of a request by the native title party, which must be made within ninety days of the grant (see para [46] above). In Wanjina-Wunggurr (at [20]-[21]) Member O’Dea commented on a similar but not identical condition which was before the Tribunal in that matter. That condition required the grantee party to ‘within thirty days of the request execute in favour of the Wanjina Wunggurr (Native Title) Aboriginal Corporation the Regional Standard Heritage Agreement endorsed by peak industry groups offered by the Kimberley Land Council’. Member O’Dea said that a condition of this kind “will be of little avail to either the native title party or grantee party as there is no Regional Standard Heritage Agreement ‘endorsed by peak industry groups offered by the Kimberley Land Council’ in existence.” At the listing hearing in the present matter on 4 June 2010 Mr Greg Abbott for the Government party acknowledged that the KLC has never agreed to the RSHA which has been negotiated between the Government, peak industry bodies and some other Native Title Representative Bodies.
I agree with Member O’Dea’s comments based on the proposed terms of the condition which he considered in Wanjina-Wunggurr. As drafted the condition was ambiguous and appears to refer to a RSHA which does not in fact exist. However, in the present case the proposed condition has been redrafted to identify the document as the RSHA which has been endorsed by peak industry bodies and other Native Title Representative Bodies. Although the Tribunal understands that not all the RSHAs are completely identical the condition does (as now drafted) have sufficient clarity about the agreement to which it refers. The native title party will, therefore be offered the opportunity of entering into a heritage protection agreement in the form of the RSHA which makes provision for consultation with the native title party and the conduct of heritage surveys. This condition and the fact that the grantee party is prepared to enter into a form of RSHA which will provide for a heritage survey to be carried out supports a finding that interference with any sites of particular significance is unlikely to occur.
In the circumstances, I am satisfied that the protective regime for Aboriginal sites based on the AHA and the presumption of regularity is sufficient to make interference with any relevant site unlikely.

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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [74]-[79] and the cases cited therein).
The native title party contends that the grant of the proposed licence will create rights whose exercise is likely to involve major disturbance to the land (NTPSC para 34). They cite the activities which the holder of an exploration licence is entitled to undertake under the Mining Act being: reverse circulation drilling in area of hypersaline groundwater; diamond core drilling, including the creation of drill holes; excavation of up to 1000 tonnes of material; creation of exploration tracks; creation of drill pads; and excavation of minerals and earth in the course of exploration activities.
The evidence of Mr Shandley on this topic (para 26) is principally based on the need for strangers to ask permission to come onto the Gooniyandi country because of the number of special places which exist and that not to do so could result in a disturbance to ground where the song line is and this will affect the song line in other areas and make life uncomfortable for everyone involved (para 27). The native title party has not provided any evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. Although there is an area or site of particular significance to the native title party, the area of the proposed licence is not site rich. The native title party contentions (para 36) and evidence of Mr Shandley relating to the grantee party obtaining permission to enter Gooniyandi country do not in my view bear a direct relationship to whether there is likely to be a major disturbance to the land. The burden on local Aboriginal people to look after strangers on their country cannot, as the native title party contend (para 37) cause a major disturbance to land. I agree with Member O’Dea’s comments in Wanjina-Wunggurr (at [45]).
‘... I accept that the presence of strangers on the subject area may be upsetting to the native title holders. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title holders’ traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities to be conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to their offence at the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that there is not likely to be major disturbance to land or waters in this case.’
There are no special factors which would lead members of the Australian community to think that exploration activity or rights to conduct it will cause a major disturbance to the land. The presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities including the site protection regime; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). In this case, I find that there is not likely to be major disturbance to land or waters or the creation of rights which would do so.
In a number of matters involving the Gooniyandi native title party the Tribunal has found that the expedited procedure is not attracted because of likely interference of the kind specified in s 237(a) and (b) of the Act (see for example Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/Arnhem Resources Pty Ltd, NNTT WO09/312, [2010] NNTTA 132 (16 August 2010), Hon C J Sumner and cases cited therein). The present case is distinguishable from them in relation to the number and character of sites of particular significance (the present evidence does not establish a site rich area) and the more limited evidence of community or social activities and the proximity and number of Aboriginal communities in the vicinity.

Determination

The determination of the Tribunal is that the grant of exploration licence E80/4076 to William Robert Richmond, is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
14 October 2010