Crowe v Western Australia
[2008] NNTTA 71
•6 June 2008
NATIONAL NATIVE TITLE TRIBUNAL
Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, [2008] NNTTA 71 (6 June 2008)
Applications No: WO07/806 and WO07/813
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Ronald Crowe, Sydney Dale, Laurence Gooyou, Gwen Gooyou, Mary Franklin, Ruby McIntosh and Sharon Crowe on behalf of Gnulli (native title party)
-and-
Charlie Lapthorne, Warren Stanley Ryan, Maureen Dodd, Alice Moncrieff, Ben Roberts, Peter Windie, Stewart Peck, Wayne Lapthorne and Bella Randall on behalf of the Thudgari People (native title party)
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The State of Western Australia (government party)
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Zhukov Pervan (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: John Sosso
Place: Brisbane
Date: 6 June 2008
Hearing Dates: 31 March 2008, 23 April 2008.
Representatives:
Native title parties: Mr Greg Young, Yamatji Land and Sea Council
Ms Toby Jones, Yamatji Land and Sea Council
Government party: Mr Clyde Lannan, Department of Industry and Resources
Mr Trevor Creewel, State Solicitor’s Office
Grantee party: Ms Melissa Greer, Hetherington Exploration and Mining Title
Services Pty Ltd
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – gender restricted evidence - legal principles – 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 – expedited procedure does not apply.
Legislation: Native Title Act 1993 (Cth), ss 29, 77, 82, 109, 146, 151(2), 154, 155, 178, 179, 237
Aboriginal Heritage Act 1972 (WA), s 18, 62
Mining Act 1978 (WA), ss 20(5), 63
Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 35
Cases:Champion/Western Australia/Maincoast Pty Ltd, WO04/389, [2005] NNTTA 35 (30 May 2005) Deputy President Sumner
Champion v Western Australia (2005) 190 FLR 362
Cheedy/Western Australia/Cazaly Iron Pty Ltd, WO06/529, [2008] NNTTA 39 (4 April 2008) Deputy President Sumner
Cheinmora v Striker Resources NL & Ors (1996) 142 ALR 21
Freddie v Western Australia (2007) 213 FLR 247
Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory, DO01/100, [2002] NNTTA 131 (5 July 2002) Member Sosso
Hicks/Western Australia/Legend Mining NL, WO99/71, [2000] NNTTA 324 (25 September 2000) Deputy President Franklyn
Jango v Northern Territory [2003] FCA 1230
Kanak v National Native Title Tribunal (1995) 61 FCR 103
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Little v Western Australia [2001] FCA 1706
Lockyer & Ors/Western Australia/Mineralogy Pty Ltd, WO03/925, [2006] NNTTA 133 (5 October 2006) Deputy President Sosso
Parker v Western Australia [2008] FCAFC 23
Re Irruntyju-Papulankutja Community (1995) 1 AILR 222
Repatriation Commission v Reid (1984) 54 ALR 157
Re Sheepskin and Opal Export Development Grants Board (1984) 6 ALD 594
Sampi v Western Australia (No. 2) [2001] FCA 620
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Velickovic/Western Australia/Rocky Reef Mining Pty Ltd, WO03/707, [2005] NNTTA 8 (10 March 2005) Deputy President Sumner
Walley v Western Australia (2002) 169 FLR 437
Western Australia/Marjorie May Strickland & Ors, WF97/4, [1998] NNTTA 2 (20 February 1998) Hon. C J Sumner
Western Australia v Thomas (1999) 164 FLR 120
Western Australia v Ward (1997) 76 FCR 492
Yallourn Energy Pty Ltd v Bull (1999) 170 FLR 369
Yarmirr v Northern Territory (1997) 74 FCR 99
REASONS FOR DETERMINATION
Introduction
On 25 April 2007 the State of Western Australia (‘the government party’) gave notice under section 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1758 (‘the proposed tenement’) to Zhukov Pervan (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.
The notice described the proposed tenement as being located 94 kilometres south-easterly of Coral Bay in the Shires of Ashburton and Carnarvon and comprising an area of 628.74 square kilometres.
The proposed tenement is overlapped by two native title determination applications: the Gnulli (WC97/28, registered from 14 April 1997) and Thudgari People (WC97/25, registered from 18 November 1997) covering approximately 96.54 per cent and 3.46 per cent respectively.
On 24 August 2007 expedited procedure objection applications were lodged with the Tribunal pursuant to subsection 32(3) of the Act by Ronald Crowe and others on behalf of Gnulli (WC97/28) (‘Gnulli native title party’) and Charlie Thapthorne and others on behalf of the Thudgari People (WC97/95) (‘Thudgari native title party’). The expedited procedure objection applications were each lodged with the Tribunal within four months after the section 29(4) notification day (25 April 2007) – s.32(3).
On 12 September 2007 Deputy President Sumner accepted the expedited procedure objection applications pursuant to section 77, and on the same day, in accordance with standard practice in expedited procedure objection matters, made directions for the parties to provide contentions and evidence. The directions were drafted to allow the parties a period of four months after the section 29 closing date for the lodgement of objections to have the opportunity of reaching an accord and thus resolve the matter by consent.
At an adjourned status conference on 6 December 2007, following a number of previous conferences, the native title parties’ representative confirmed that the Regional Standard Heritage Agreement (‘RSHA’) offered by the grantee party was not acceptable to the native title parties. All parties agreed that the matter would proceed to an inquiry before the Tribunal and the native title parties’ representative requested a six week extension of the directions. The grantee party and the government party did not initially support the request, but subsequently agreed and on 14 December 2007 the directions were amended requiring the native title parties’ compliance by 4 February 2008 and the grantee party by 11 February 2008, the government party having already complied.
On 18 January 2008 the native title parties’ representative requested a further six week extension on the amended directions owing to funereal and cultural business which had prevented the representative from seeking instructions from the native title parties. The grantee and government party supported the request and on 23 January 2008 the directions were again amended requiring the native title parties’ compliance by 17 March 2008 and the grantee party by 25 March 2008.
On 20 March 2008 Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
Each of the parties provided the Tribunal with written contentions. The native title parties also lodged with Tribunal the affidavits of Clifton Lockyer affirmed on 4 March 2008, Gwen Peck sworn on 12 February 2008 and Maureen Patricia Dodd sworn on 12 February 2008. Mr Lockyer is named as one of the persons claiming to hold native in the native title determination application of the Thudgari People. Ms Dodd is one of a number of persons who collectively comprise the Applicant of the Thudgari People native title claim. Finally Ms Gwen Peck (nee Cooyou) is one of the persons collectively comprising the Applicant of the Gnulli native title determination application.
On 28 April 2008, after holding two directions hearings on 31 March and 23 April 2008 and with the consent of all the parties, I made the following directions, pursuant to section 155, with respect to the affidavits:-
“…the affidavits of Clifton Lockyer dated 4 March 2008, Gwen Peck dated 12 February 2008 and Maureen Patricia Dodd dated 12 February 2000:-
a) shall be kept confidential by the Tribunal and the Government Party and not disclosed by them to any other person;
b)shall not be disclosed to any female staff of the Tribunal and the Government Party;
c)may be disclosed, where necessary, to male staff of the Tribunal and the Government Party;
d) shall be forwarded to the Tribunal at the expiration of the appeal period as provided for in s 179 of the Native Title Act 1993 (Cth) together with a written undertaking that no copies have been made; and
e) upon receipt from the Government Party, the Tribunal shall forthwith return these documents and those held by the Tribunal to the legal representative of the WO07/806 Native Title Party.”
[11] Prior to making this Direction the Tribunal was requested by the native title parties to make a number of restrictive directions. In particular it was submitted at various times that:
(a) the Affidavits of Mesdames Gwen Peck and Maureen Dodd could not be disclosed to any person except male Tribunal Members and male Tribunal staff;
(b) subsequently, that the Affidavits could only be viewed by men;
(c) the Affidavits must be returned immediately after viewing to the legal representative of the native title parties; and
(d) no portion of the affidavits were to be reproduced in any written determination the Tribunal made.
Subsequently most of these submissions were abandoned, but for the purpose of future inquiries it would be useful to set out the legal underpinnings of how such evidence is received by the Tribunal and the manner in which it is dealt with. In so doing, it should be recognised that, in the context of expedited procedure objection inquiries, it is not a common occurrence for parties to request restricted evidence directions, or for such directions to be made – Champion/Western Australia/Maincoast Pty Ltd [2005] NNTTA 35 at [31] per Deputy President Sumner.
Directions about gender restricted evidence – the Native Title Act 1993
[12] The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples, but not so as to prejudice unduly any party to any proceedings that may be involved – s.109(2). An almost identically worded provision also governs the operations of the Federal Court in native title proceedings – s.82(2). Prior to the 1998 amendments to the Act the Tribunal had no discretion, subsection 109(2) provided that the Tribunal must take account of cultural and customary concerns of indigenous persons and there was no limitation that in taking account of those concerns undue prejudice should not be done to any party to the proceedings.
[13] Two other provisions of potential relevance are sections 154 and 155. Section 154 requires that Tribunal hearings must be held in public except in special circumstances. The Tribunal is empowered to hold private hearings (s.154(3)) and, when deciding whether to hold a public or private hearing, the cultural and customary concerns of Aboriginal peoples are to be taken into account – s.154(4). Further, section 155 enables the Tribunal to direct that any evidence given before it or the contents of any document produced to it, must not be disclosed absolutely, or conditionally, to such persons as the Tribunal specifies. Section 155 is not limited to hearings, but has more general application. Specifically it deals not only with evidence given, but also documents produced, including in the course of an inquiry conducted “on the papers”.
[14] The key provision in an expedited procedure objection inquiry conducted “on the papers” (s.151(2)) is subsection 109(2) which governs the Tribunal’s mode of operating. Section 154 is limited to hearings, whether private or public. The Tribunal is empowered to hold expedited procedure objection hearings (s.151(2)), but may determine not to hold a hearing and conduct the inquiry “on the papers” (s.151(2)). When an inquiry is conducted “on the papers” there is no hearing. Accordingly, when considering requests for restrictions to be placed on the disclosure of documents produced in the course of an inquiry when the parties have agreed that a hearing is not required, the Tribunal must consider such requests having regard to the statutory formula set out in subsection 109(2) and not subsection 154(4).
Directions about gender restricted evidence – judicial decisions
[15] There is a clear line of both Federal Court and Tribunal authority that permits the Court and the Tribunal to accommodate cultural and customary concerns by applying gender restrictions to the receipt and transmission of materials produced, subject to overriding and fundamental principles of fairness. The leading judgment in this area is the decision of the Full Court of the Federal Court in Western Australia v Ward (1997) 76 FCR 492. Although this decision was handed down prior to the 1998 amendments to the Act, it contains principles that are still of relevance to the Tribunal – Yallourn Energy Pty Ltd v Bull (1999) 170 FLR 369.
[16] Hill and Sundberg JJ said (499-500):
“Subject to the specific provisions of the Native Title Act 1993 (Cth), to which reference will later be made, there would seem no reason to doubt the power of the Court to order that evidence be taken only in the presence of a limited class of persons or that evidence so taken will not be disseminated other than to a defined class of persons. However, while the Court may deny access to evidence in a particular case, there will be two policy considerations which will govern the exercise of the power. These are the concern of the Court to promote and ensure open justice and the requirement, as a matter of procedural fairness, that a party to proceedings will have prima facie a right to access all documents discovered or produced and all material and evidence at a trial…. The public interest in open justice as well as the private interest of the parties to such access will not lightly be interfered with.”
Their Honours also pointed out (at 502) that while the Court had the power to make orders restricting the hearing of evidence to persons of a particular gender it “will be only where the interests of justice dictate that course that such an order will be made.”
[17] Branson J concurred and outlined the following propositions (at 508-510):
(a) section 82 (as it was then worded) recognises that a failure to recognise cultural and customary concerns may result in evidence which would otherwise be available being withheld from the Court;
(b) the notion of what rules of practice are fundamental to a fair hearing is not fixed for all times, and the peculiar circumstances of classes of litigation (e.g. native title) can be taken into account;
(c) according procedural fairness can incorporate placing restrictions on the parties, their counsel and expert witnesses, in terms of who may hear, read or otherwise know the details of particular aspects of evidence called in a proceeding;
(d) the fact that there are laws and customs of a particular group of indigenous Australians does not mean that the Court (or Tribunal) is bound by those rules and customs; and
(e) the mere assertion of cultural and customary concerns is not enough. Evidence should ordinarily be led of the existence of the cultural rule or norm, the extent to which the rule or norm admits flexibility in its application, the importance of the evidence in question to the party seeking to call it and whether that evidence may not otherwise be produced.
[18] Her Honour pointed out (at 509-510) that in every case there were competing interests that had to be weighed, and she outlined some of them:
“(a) the interest in the open administration of justice;
(b) the interest of the parties knowing all evidence actually or potentially adverse to their respective interests;
(c) the interest of the parties being able to test all evidence actually or potentially adverse to their respective interests;
(d) the interest of the parties respectively being able to be represented as to all aspects of the case by one representative or team of representatives;
(e) the interests of the parties being able freely to choose their own legal or other representatives;
(f) the interest of ensuring that the parties are equally able to give, and lead from others, evidence relevant to their respective cases;
(g) the interest of the Court showing respect for legitimate cultural and other differences between persons involved in the legal process; and
(h) the interest of advancing, rather than detracting from, the purposes of the relevant legislation.”
[19] The Court upheld Orders made by the trial judge that limited access to evidence given by a witness of one gender, to counsel and solicitors of the same gender where it was in the interests of the administration of justice. In so doing, the Court expressly rejected the approach of Olney J in Yarmirr v Northern Territory (1997) 74 FCR 99, where His Honour found that section 82 did not empower the Court to make orders restricting the gender of the legal representatives when a gender restricted order was sought on cultural or customary grounds. Since that the decision of the Full Court, various gender restrictive rulings have been made by trial judges, recent examples being Sampi v Western Australia [2005] FCA 777 at [632]–[641], Griffiths v Northern Territory [2006] FCA 903 at [459]–[460] and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [375]–[385]. It is not necessary and possibly unhelpful, to set out the types of orders made and the particular facts in these cases that led to the orders. Clearly a trial before the Federal Court is different from a short, relatively informal inquiry held on the papers by an administrative tribunal. Further, as Beaumont ACJ observed in Sampi v Western Australia (No 2) [2001] FCA 620 at [7] it is difficult in practice and dangerous to decide a discretionary legal question (such as under sections 82 and 109) in the abstract. Reference must be made to general principles of procedural fairness of the type enunciated by the Full Federal Court in Ward.
[20] It will be noted that subsection 109(2) permits the Tribunal to take into account the cultural and customary concerns of indigenous persons but not to prejudice unduly any party to the proceedings. Implicit in the wording of section 109(2) is that a gender restrictive direction may, or is likely to have, an adverse impact on other parties. Indeed the section appears to be drafted on the assumption that, in the normal course of events, such a direction could prejudice other parties. So much was recognised in the majority report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund into the Native Title Amendment Bill 1997 (October 1997) which is referred to (at para 27.5) in the Explanatory Memorandum to the Bill. The Committee was considering an earlier form of sections 82 and 109 which did not include the word “unduly”. Submissions were received that the clauses as worded, would not allow the Tribunal or the Court to take into account cultural and customary concerns if to do so would prejudice any other party. One person suggested that this would prevent the Tribunal and Court dealing with gender-specific evidence. That submission stated that recognising gender specific evidence inevitably will prejudice parties, pointing out that this flows from the extra costs of employing gender specific persons for particular tasks etc. The Committee agreed and said (at 7.9):
“The Committee agrees that the wording of the proposed amendment needs to be altered to ensure flexibility. The Court should be able to look not only at the prejudice of one party, but also take into account the benefits to other parties and the interests of justice. Only in cases of undue prejudice to one party should the Court be prevented from taking account of the cultural and customary concerns of indigenous peoples.”
The meaning of “unduly” was considered by Sackville J in Jango v Northern Territory [2003] FCA 1230. His Honour made these observations (at [52]):
“… whether prejudice is ‘undue’ is essentially a question of fact, dependent on the circumstances of the particular case. There may be some circumstances in which prejudice would be regarded as ‘undue’ independently of the nature of the cultural and customary concerns of the Aboriginal peoples. If, for example, it is practically impossible for a respondent to mount an effective defence to a native title claim should orders be made protecting the cultural and customary concerns of the applicant, the prejudice is very likely to be regarded as undue. There may be other circumstances where in order to determine whether a respondent has been ‘prejudice[d] unduly’ it is appropriate to weigh in the balance the nature of the concerns of the Aboriginal peoples and the nature of the prejudice likely to be sustained by the respondent.”
Directions about gender restricted evidence – Tribunal approaches
The Tribunal, like the Federal Court, has from the outset been prepared to make gender restrictive directions for the effective operation of future act inquiries. Outlined in summary form are some approaches adopted by the Tribunal:
(a) Re Irruntyju-Papulankutja Community (1995) 1 AILR 222. Deputy President Seaman determined that the expedited procedure objection hearing would be held in public except that evidence and submissions about sites and areas of significance from native title parties was to be taken in closed hearings which Counsel attended but were otherwise confined to those who were authorised by tradition to hear the evidence. There were separate and closed meetings of Aboriginal men and women which were not tape recorded. Counsel gave their undertakings to maintain the confidentiality of this private evidence and to return their notes to the Tribunal.
(b) Western Australia/Marjorie May Strickland & Ors [1998] NNTTA 2. This matter involved a proposed compulsory acquisition of native title rights and interests and involved three native title parties. The Tribunal declined to make directions pursuant to sections 154 and 155 that a particular native title party’s evidence be given in private in the presence of representatives of only the government party, and further, that such evidence not be disclosed to any person other than the government party, and finally, that any findings on the evidence not be disclosed other than to the government party. In reaching this conclusion Deputy President Sumner found that the reasons adduced by the relevant native title party did not relate to customary or cultural concerns but were essentially tactical considerations. Nonetheless he indicated that he would not have been prepared to make a ruling which would have excluded one party from being privy to evidence given (at 19-20): “As a matter of procedural fairness that submission could not be acceded to. The other native title parties’ position may be affected by the evidence. Evidence given in private by one native title party could challenge evidence of other native title parties.”
(c) Western Australia v Thomas (1999) 164 FLR 120. The Tribunal was asked to make directions by the native title party that there be no recording or notes taken of the evidence given (which would only be in the presence of men) except by the Tribunal Member, and that any record of sacred material be deleted before they went on the Tribunal record, and that any person hearing the evidence (including the Tribunal) be prohibited from disclosing it to any other person including the Federal Court. The Tribunal rejected this submission. The Tribunal said that it was hard to envisage a situation where the Tribunal could take evidence which excluded the supervisory role of the courts. Without a disclosing of the facts upon which findings of law were made, the supervisory role of the Federal Court would be rendered nugatory. Reference was also made to section 178 which requires the Tribunal to send to the Federal Court all documents and other things before the Tribunal in relation to an inquiry. Deputy President Sumner said (131-132): “If a court cannot be informed of what happened, it is difficult to see how parties can be properly accorded their rights of appeal and administrative review. If no recording is made or notes taken, a court could not properly exercise its supervisory responsibilities …. My conclusion then is that the Tribunal should not take evidence which cannot be disclosed to a court which is not recorded in some way.”
(d) Yallourn Energy Pty Ltd v Bull (1999) 170 FLR 369. The Tribunal refused to make a “global confidentiality” direction. The native title party sought a direction that the future act hearing be held in private and that unless the parties otherwise agreed, evidence could not be given, and statements made, concerning any words spoken, evidence given, or act done, at the hearing. Further only a limited range of persons were to have access to the evidence, or any record of the evidence. The Tribunal rejected this request and accepted (at 375) the submissions of the government and grantee parties that the claim for global confidentiality was not supported by the provisions in the Act and could not be implied from its purposes. Deputy President Sumner (at 376) was of the view that it was unlikely that section 155 gave the Tribunal the power to prevent disclosure of its proceedings to the Federal Court, and even if it did, it was difficult to envisage a situation that would justify such a direction.
(e) Freddie v Western Australia (2007) 213 FLR 247. The Tribunal made directions (at 257/[39]) under section 155 dealing with a CD Video in which members of the native title party described the nature of a site of particular significance to them and two affidavits. The directions were to the effect that the documents be kept confidential by the Tribunal and the parties, not be disclosed by them to any other person, not be disclosed to any female staff, and that the evidence be provided in a manner that maintained its confidentiality.
Gender restricted evidence – principles for expedited procedure inquiries conducted “on the papers”
[23] For the purposes of expedited procedure inquiries conducted “on the papers” the following general principles of practice and law can be outlined for the guidance of parties making submissions that directions be made restricting the availability of documents produced in order to accommodate cultural and customary concerns:
(a) a direction can be made pursuant to section 155 restricting the disclosure of documents produced, including limiting the disclosure to persons of a particular gender;
(b) a direction may be limited to only some of the contents of a document, or documents, produced. In each case when the Tribunal makes a section 155 direction, such direction should only be made when it is manifestly justified and applies only to the particular material which raises cultural or customary concerns;
(c) the making of such a direction is discretionary, and requires the Tribunal to undertake an exercise of weighing the competing interests of all of the parties in light of the fundamental principle that the Tribunal must only make such a direction where the interests of justice support that course of action;
(e) it is appropriate and open for the Tribunal to have regard to the fact that the Act should be interpreted in a beneficial manner and, where appropriate, due regard is had to the cultural and customary concerns of indigenous parties and witnesses;
(f) the mere assertion that a document raises cultural or customary concerns is not sufficient. The party seeking the restrictive direction must satisfy the Tribunal that the contents of the documents in fact raise such concerns. If for example, the contents have previously been produced wholly or substantially at an inquiry and circulated without restriction, those circumstances would ordinarily militate against the making of a restrictive direction – Champion/Western Australia/Maincoast Pty Ltd [2005] NNTTA 35;
(g) the Tribunal will have regard to evidence establishing any risk that if appropriate directions are not made under section 155, key documents may not be produced by native title claimants, thereby adversely impacting on the efficacy of the inquiry;
(h) a request for a section 155 direction restricting the dissemination of documents produced which is primarily motivated by tactical considerations and not actual cultural or customary concerns must be refused: Velickovic/Western Australia/Rocky Reef Mining Pty Ltd [2005] NNTTA 8 at [12] per Deputy President Sumner;
(i) a direction will not be made if it unduly prejudices any party to the proceedings – s.109(2);
(j) what constitutes “undue” prejudice is a question of fact dependent on the circumstances of each inquiry. Some prejudice of itself is not sufficient, it is the degree of prejudice that must be considered. If the proposed direction would effectively negate, or severely impede, a party presenting their case, then this would constitute “undue” prejudice;
(k) the Tribunal, unlike the Federal Court, is not bound by technicalities, legal forms or rules of evidence – s.109(3). Moreover it must carry out its functions, including its arbitral functions, in a fair, just, economical, informal and prompt way – s.109(1). Accordingly, the Tribunal should approach the making of directions under section 155 in a practical and realistic manner and not burden the parties with formal requirements disproportionate to the conduct of an expedited procedure objection hearing on “the papers” which should be short in duration and does not unduly impose costs on the parties. In that regard: “the Tribunal is entitled to rely on past practice and its experience of the circumstances in which confidentiality orders have been sought and granted” – Champion/Western Australia/Maincoast Pty Ltd [2005] NNTTA 35 at [30] per Deputy President Sumner.
Directions on gender restricted evidence in this matter
[24] Apart from these matters of general principle, there remains the question of the particular restrictions which were raised in this matter. Although these were subsequently abandoned, it is useful to set out the Tribunal’s response when they were first raised.
One submission was that any material the subject of a section 155 direction should be returned immediately after viewing and prior to the conclusion of the expedited procedure objection inquiry. When documents are produced or lodged with the Tribunal pursuant to subsection 151(2) for a determination “on the papers” those documents are required to be retained until the proceeding is concluded and the appeal period has expired without an appeal being made – s.179(1). If an appeal to the Federal Court is made under section 169, the Tribunal is required to send to the Court all documents and other things that were before the Tribunal in relation to the inquiry – section 178. If the Federal Court subsequently returns the document or other thing to the Tribunal, the President may arrange for the document or other thing to be returned to the person who gave it to the Tribunal – s.179(2). Nonetheless it is not the normal practice of most Tribunals to direct the return of documents lodged for the purpose of proceedings – Re Sheepskin and Opal Export Development Grants Board (1984) 6 ALD 594. Consequently, any document lodged or produced to the Tribunal for the purposes of an expedited procedure objection inquiry must be retained by the Tribunal until the expiration of the appeal period to the Federal Court, and good reason must be adduced for the Tribunal returning any document to a party at the end of the appeal period. In this matter, in the exercise of discretion, the Tribunal determined that it was appropriate that the relevant documents be returned once the appeal period has expired.
The other submission which was abandoned, was that no portion of the affidavits the subject of a section 155 direction could be reproduced in any written determination of the Tribunal. Assuming that the material contained in the affidavits is relevant to the ultimate determination as to whether the expedited procedure is attracted, the Tribunal is required by subsection 162(2) to: “state in the determination any findings of fact upon which it is based.”
The proper interpretation of this section in the context of an expedited procedure objection inquiry was recently considered by the Full Court of the Federal Court in Parker v Western Australia [2008] FCAFC 23. One of the grounds of appeal from the primary judge was that he erred in concluding that the Tribunal had taken into account a matter it was required to when its reasons for determination included no express reference to it. The matter was that according to the native title party’s traditional laws and customs, walking of a particular site without being accompanied by an elder constituted interference with that site. The following statement of the Tribunal was quoted by the Court (at [43]):
“The native title party has provided documentary evidence including affidavits, sworn on 17 May 2005 of Slim Parker and Timothy Parker, members of the native title party claimant group and Paul Antony Sheiner. The affidavits of Slim and Timothy Parker and some other evidence were the subject of a non-disclosure or ‘confidentiality’ directions (sic) pursuant to s 155 of the Act. In these reasons I have only referred to those documents to the extent necessary to explain my decision and have not included material which should according to customary laws and customs remain confidential.”
Each of the Judges handed down separate reasons, but they were unanimous in dismissing the appeal. Moore J highlighted the distinction between findings of fact which sustain ultimate findings of fact and the ultimate findings themselves. Moore J said (at [7]):
“s 162(2) speaks of ‘any findings of fact upon which [the determination] is based’ (emphasis added). The expression contains two features. The first is the language of wide import in the expression ‘any findings’. The second is that the findings be those upon which the determination was based. In my opinion and particularly having regard to the use of the word ‘any’, the Tribunal is obliged to set out the findings of fact it makes which lead to the determination of the matters covered by the enquiry which, in this instance, is the determination whether the act is an act attracting the expedited procedure: see s 32(4). A statutory obligation to reveal fully the found facts upon which a decision is based is understandable given the significance of a decision that a future act attracts the expedited procedure.”
As His Honour subsequently highlighted (at [14]), a finding that there is, or is not, a real risk of interference for the purpose of section 237, is not a finding of fact.
Moore J was critical that the Tribunal made no express finding as to which activities constituted “interference” within the meaning of paragraph 237(b) with a site of particular significance. The primary judge suggested that the reason for this was the reluctance of the Tribunal to expressly refer to a native title claimant’s evidence because of the sensitivity of the information. Nonetheless the primary judge found that it was open to the Tribunal to reach the conclusion it did based on the information set out in the determination. Moore J took a stricter approach (at [16]):
“If the Tribunal made no finding about what constituted interference in accordance with their traditions then the duty imposed by s 162(2) would not arise. The subsection obliges the Tribunal to state findings made if they were the basis for the determination. However, if no finding was made about whether the claimed traditions existed or whether particular conduct might constitute interference then it might be inferred that the Tribunal failed to address one matter it was required to address, namely what would constitute interference in accordance with the claimants’ traditional laws and custom. It is only after that factual question is answered that the Tribunal can then consider whether there is likely to be interference.”
Branson J rejected (at [49]) an interpretation of subsection 162(2) which would oblige the Tribunal to record in its reasons every aspect of the evidence and material before it upon which it placed reliance in making its determination. He Honour observed that two principal purposes can be assumed to be served by this subsection (at [50]):
“First, that a party dissatisfied with the determination can understand how the Tribunal arrived at its determination and, in particular, can form a view on whether the determination was lawfully made. Secondly, to facilitate review by the Court of the Tribunal’s determination should any party exercise its right to appeal pursuant to s 169. Having regard to the above purposes, the likely intention of the legislature was to require to set out such of its findings of fact as were critical to the making of its determination.”
Her Honour pointed out (at [44]) that no party before the Tribunal contended that the particular site was not a site of particular significance within the meaning of paragraph 237(b), nor was the evidence which the Tribunal was reluctant to articulate in its reasons challenged. Branson J also held (at [52]) that the Tribunal was not required to make a finding about what would constitute interference according to the native title party’s traditions, as this was not in dispute. Branson J said (at [53]): “By identifying the uncontested evidence upon which it found ‘without difficulty’ that the site was of particular significance to the native title party, the Tribunal enabled the parties, and this Court, to know the factual basis of its finding.”
Tamberlin J also found (at [75]) that, although the Tribunal had not spelt out the particular evidence in detail due to its confidential nature, the reasons provided sufficiently demonstrated that it had been taken into account when concluding that there was unlikely to be interference with the site. His Honour then said (at [76]):
“In giving reasons, it may be appropriate for the Tribunal to refrain from reciting or even referring specifically to detailed evidence provided in confidence. It is a question of striking a reasonable balance between the sensitivity of certain evidence and the appropriate extent to which that evidence needs to or should be recited when setting out findings. While a more detailed discussion of the evidence and findings could arguably have been engaged in by the Tribunal in this case, it cannot be said that the approach taken amounts to an error of law because, given that the specific detailed evidence was accepted without contradiction and was referred to expressly in the reasoning of the Tribunal, the factual basis for the finding was made known to the parties who had access to the relevant evidentiary material, albeit on a confidential basis.”
As is clear from the above summary of this case, while each of the Judges dismissed the appeal there was a marked variety of approaches to how subsection 162(2) should be applied by the Tribunal when setting out its reasons for its determination. What is clear however is that the Tribunal is under an obligation to set out clearly the factual basis of its determination. The obligation imposed by subsection 162(2) cannot be avoided because of issues relating to cultural or customary concerns. Wherever possible, especially when directions have been made pursuant to section 155 to restrict the disclosure of documents produced, the material which has cultural or customary sensitivity should only be disclosed to the extent required by the law and, where possible, direct quotation from affidavits should be avoided. Unnecessary details of such culturally sensitive material should not be set out in the reasons. The religious, spiritual and traditional elements of the material conditionally disclosed to the Tribunal for the particular purposes of a limited future act inquiry should be acknowledged, and respected. However, the obligation placed on the Tribunal by subsection 162(2) is manifest. If a native title party seeks to rely on material produced to the Tribunal, it cannot then expect global limitations on the Tribunal setting out the facts in its determination which have led it to make the inferences required to reach a conclusion under section 237. In the context of this inquiry, a determination that no portion of any affidavits lodged could be reproduced in a written determination of the Tribunal could offend the requirement of subsection 162(2). The Tribunal would not, and could not, agree in advance to restrict itself in the manner that was originally sought by the native title parties, especially when such a submission is made at the outset of an inquiry and the Tribunal is not yet in a position to weigh all of the material before it.
Apart from subsection 162(2), another provision which may have relevance is section 25D of the Acts Interpretation Act 1901 (Cth), which provides:
“Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”
Section 162 imposes a duty on the Tribunal to make a determination and to state in that determination any findings of fact upon which it is based. Although the Act does not specifically state that the determination must be in writing, the clear inference is that it will. Section 25D of the Acts Interpretation Act 1901 supplements the requirement of subsection 162(2) by making it clear that the Tribunal has an obligation not only to set out the findings of fact underpinning the determination but also to refer to the material on which those findings were made.
In conclusion, irrespective of whether a gender-restricted direction has been made under section 155, the Tribunal is obliged in its determination to set out the findings of fact upon which inferences have been drawn and to identify the source of those factual findings. As Branson J highlighted in Parker v Western Australia, this does not require setting out all factual findings, but it must set out those which are “critical” to its ultimate determination. This obligation does not translate into a requirement that all material produced to the Tribunal must be set out verbatim, or even that key passages must be quoted. It does require that the Tribunal use its discretion to identify and set out in an appropriate form, the key material from which it has drawn inferences. How this is best effected is a matter that can only be resolved in each inquiry having regard to the nature of the material produced, the attitude of the parties and whether it is contested or uncontested.
Summary of the affidavit material
[36] Mr Lockyer deposed in his affidavit that he was a member of the Gnulli native title claim group which is made up of Baiyungu and Ingaarda people, and that he is an initiated Baiyungu man. Further he deposed that he is classed as a tribal elder and is authorised to speak for the area of Gnulli country intersected by the proposed tenement.
[37] Mr Lockyer further deposed about the particular significance of Moogooloo Hill and other sites and the suggested impact of exploration on sites. Particular aspects of the affidavit material will be dealt with in the context of findings in relation to paragraphs (a) – (c) of section 237 hereafter.
[38] Ms Dodd (nee Cooyou) deposed that she is an Ingaarda woman because her father was an Ingaarda man whilst her mother was Baiyungu. She further deposes that the proposed tenement is mostly located in Baiyungu country, but she claims that she can speak for this area because it is her mother’s country and she has been authorised to speak by members of her family, including the last old mother, Mrs Bessie Lyndon. She deposed to the significance of Moogooloo Hill and the fact that she is not allowed to go there.
[39] Ms Peck is one of the persons comprising the Applicant of the Gnulli native title party and deposes that she is a senior Baiyungu woman. She deposed that she has authority to speak for the area of the proposed tenement on behalf of Mrs Bessie Lyndon. As with Ms Dodd she deposes to the significance of Moogooloo Hill and that females are not allowed to go there.
The weight that is placed on affidavit material submitted by persons who claim to speak on behalf of land and waters in expedited procedure objection inquiry was determined by Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour considered an affidavit from a Mr. Bynder who was a Badimia man. He deposed to the significance of Lake Moore to the Badimia people. Mr Bynder’s authority to speak on behalf of Lake Moore was challenged by the grantee party. Nicholson J made these findings (at [78]–[79]):
“[78] (T)he affidavit of Mr Bynder…suggests that there is a sacred quality attached to the entirety of Lake Moore. For the grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance. The scope of his evidence is that he is able to narrate a dreaming story. He does not say that he holds any particular position within the community of the Badimia People or that he has actively maintained his contact with this community and its traditions. Secondly, he asserts that Lake Moore is sacred but does not identify the nature of its sacred quality and what this requires. It is submitted that without knowing this it would be impossible for the Tribunal to have drawn any conclusions as to whether exploration activities would be likely to interfere with that sacredness. Thirdly, he does not address whether Lake Moore is of ‘particular’ significance.
[79] As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia People so that his evidence has the weight of one Badimia person. Similarly, as to the third point, I consider a fair reading of the affidavit does arguably show that Lake Moore is of ‘particular’ significance to Mr Bynder but not for the Badimia People generally. Concerning the second point…the evidence of Mr Bynder does not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference, even more so in the absence of any qualification of witness as a spokesman for the area…”
[41] The appropriate means of dealing with affidavit material lodged with the Tribunal on the question of sites said to be of particular significance was dealt with in Griffiths/BHP Billiton Minerals Pty Ltd/ Northern Territory [2002] NNTTA 131. The Tribunal outlined at [15] some of the factors that need to be taken into account when assessing the weight that should be placed on material lodged on the question of whether areas or sites are of particular significance within the meaning of paragraph 237(b). I adopt those criteria for the purpose of this inquiry.
In this matter neither the government or grantee parties contested the status or qualifications of the deponents for the material outlined in their respective affidavits. Further, no evidence provided by the deponents was refuted or cast in doubt by any other material. Importantly, each of the deponents is either an applicant or a member of one of the claim groups, and each states clearly the basis for the material they have deposed to. It is not the role of the Tribunal to go behind material presented unless there is a need to do so. The Tribunal proceeds on the basis that the facts, status, qualifications etc of persons in an affidavit are correct unless other material lodged casts doubt on those assertions. In this matter, I am satisfied that each of the deponents has the requisite traditional authority to depose to the matters outlined in their affidavits and accordingly can be given due evidentiary weight.
Other Interests in the area of the Proposed Tenement
Material filed by the Government party indicates the proposed tenement is 99.9 per cent overlapped by the following pastoral leases:-
· Mia Mia 3114/728 (38.7 per cent overlap)
· Winning 3114/1030 (15.7 per cent overlap)
· Minilya 3114/420 (11.6 per cent overlap)
· Middalya 3114/656 (5.4 per cent overlap)
· Wandagee I080126 (28.5 per cent overlap)
The remaining 0.1 percent overlap constitutes road reserves 8397 and 9475.
[44] The government party drew the attention of the Tribunal to the operation of subsection 20(5) of the Mining Act 1978 (WA) which provides that in relation to pastoral leasehold land included within the proposed tenement, unless the occupier gives written consent or the Mining Warden otherwise directs, the holder of a mining tenement is not permitted to prospect, fossick on, explore, mine or otherwise interfere with any Crown land that is:
(a) under crop, or which is situated within 100 metres thereof;
(b) used as, or situated within, 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(d) the site of, or situated within 100 metres of, any cemetery or burial ground; and
(e) land the subject of a pastoral lease which is the site of, or situated within 400 metres of the outer edge of , any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of the pastoral lease.
The Tribunal has previously considered, and largely discounted, the relevance of subsection 20(5) in the context of a predictive risk assessment in an expedited procedure objection inquiry. I refer in this regard to the findings of Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437 at 454-455 where he pointed out that the section is not designed to protect Aboriginal interests and where a non-Aboriginal person is a pastoral lessee, consent can be given to activities otherwise prohibited without the consent of the native title parties. Consequently, for the purposes of this inquiry, although the Tribunal has considered the operation of subsection 20(5) it does not consider it to be of particular assistance in undertaking a predictive risk assessment.
The material lodged by the government party also indicates that the proposed tenement is 30.2 per cent overlapped by petroleum exploration permit EP 369 R2 which was granted on 26 March 2004 and is due to expire on 25 March 2009. Logged expenditure to date includes two seismic surveys and 2 exploration wells. Whilst no other mining or petroleum tenements currently overlap the proposed licence, the area has been subject to other recent exploration activity notably: two surrendered exploration licences E08/1335 and E08/1431 active between 2005-2006 overlapping at 21.5 and 28.5 per cent. Tribunal records note that E08/1335 and E08/1431 were notified pursuant to section 29 by the government party as attracting the expedited procedure on 13 November 2002 and 30 November 2005 respectively. E08/1335 was the subject of an objection application lodged by the Gnulli native title party on 6 January 2003 (designated WO03/44) and withdrawn on 16 November 2005 as the RHSA was signed by the parties following the conclusion of negotiations. No expedited procedure objection application was lodged with regard to E08/1431.
The proposed licence is intersected by some 48 tracks, 6 water pipelines, twelve wells, two earth dams, one non-perennial lake, 2 major non-perennial watercourses, 11 minor non-perennial watercourses and 3 soaks.
The material lodged by the government party further indicates that there are no Aboriginal communities within or adjacent to the proposed tenement and no other material lodged with the Tribunal by either the native title parties or the grantee party contests that assessment.
A search by the government party generated on 3 December 2007 of the Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) discloses the following six open access sites partially or entirely within the proposed tenement:
| Site ID | Name | Description | Status |
| 6665 | Moogooloo Well | Well, grinding patches/ grooves/rock shelter | Permanent |
| 6667 | Gooch Range | Painting | Permanent |
| 7620 | Coolanberry Tank | Artefacts/scatter | Permanent |
| 7468 | Wandagee Station 5 | Artefacts/scatter | Interim |
| 7745 | Gooch Range 21 | Artefacts/scatter | Interim |
| 7746 | Gooch Range 22 | Artefacts/scatter | Interim |
No sites are described as closed, restricted or vulnerable.
[49] The government party submitted that the grant of the proposed tenement would be subject to the protective operation of section 63 of the Mining Act 1978 (WA) which deems that every tenement of the type proposed to be granted is subject to the holder fulfilling certain conditions, including reporting discoveries of minerals, making safe any holes, pits, trenches etc and preventing damage to property and stock.
The Government party will also impose the following condition giving the Gnulli and Thudgari native title parties the option to agree to a RSHA with the grantee party within a specified time after the grant of the proposed licence:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Objectors and the Thudgari Peoples, the applicants in Federal Court application no. WAD 6161 of 1998 (WC97/28) and WAD 6212 of 1998 (WC97/95) respectively, such request being sent by pre-paid post to reach the Licensee’s address Hetherington Exploration and Mining Title Services Pty Ltd, Post Office Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the objectors and the Thudgari Peoples the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Yamatji Land and Sea Council.”
[51] Reference will be made later in this determination to the execution by the grantee party of an RSHA. It is appropriate to briefly explain that the government party initiated the use of these documents in Western Australia in 2002 as a better means of protecting Aboriginal heritage and conducting heritage surveys as well as removal the then backlog of exploration and prospecting licence applications. The background to the development of RSHAs was comprehensively set out by the Tribunal in Champion v Western Australia (2005) 190 FLR 362 at 367-368/[16]– [22]. I adopt, for the purposes of this inquiry, the analysis of these documents in Champion. If a grantee party will not agree to execute a RSHA the government party will not assert the expedited procedure.
Legal principles
The key statutory provision in any expedited procedure application is section 237 of the Act which 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) 169 FLR 437 (‘Walley’), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439-449). I adopt those findings for the purpose of this inquiry while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on exploration licences have been strengthened. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than 6 months after excavation unless otherwise approved by the Environmental Officer of the Department of Industry and Resources. Standard Condition 4 now has to be read with Paragraph 63(aa) of the Mining Act 1978 (WA) which now deems that an exploration licence will be granted subject to the tenement holder not using:
“… ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –
(i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and
(ii)the program of work has been approved in writing by the Minister or the prescribed official.”
The Work Program must contain information from the Register of Aboriginal Sites, advise whether the proposal intersects the boundary of registered site, involve consultation with the Department of Aboriginal Affairs and obtain advice from the Department that the proposed activities are acceptable – Cheedy/Western Australia/Cazaly Iron Pty Ltd [2008] NNTTA 39 at [22]. In conclusion I find that there exists in Western Australia an integrated regulatory regime which aims to minimise the likelihood of exploration activities unnecessarily impacting on the livelihood and lifestyle of third parties, including indigenous persons claiming native title rights and interests. In recognising the existence of such a regulatory regime, it also needs to be emphasised that whilst this regime reduces the likelihood of interference or disturbance as provided in section 237 it does not absolve the Tribunal from undertaking its task of making a predictive risk assessment. The regulatory regime is an important factor in assessing risk but it does not automatically negate the risk or chance of interference or disturbance. In any inquiry the Tribunal is required to carefully weigh up all the material produced prior to reaching a conclusion on the likelihood of interference or disturbance.
The statements of contentions lodged on behalf of both native title parties contain a legal submission which has previously been rejected by the Tribunal. It is submitted that the steps required to assess the legislative criteria contained in section 237 are set out in an early Tribunal determination –Dann/Western Australia/GPA Distributors Pty Ltd [1997] NNTTA 20. It was also contended that the 1998 amendments to the Act have not diminished the validity of the principles set out in that determination. This contention was considered and rejected in Cheedy/Western Australia/Cazaly Iron Pty Ltd [2008] NNTTA 39 at [24]. I adopt the reasons of the Tribunal in that matter for the purpose of this determination.
The native title parties also contended that the grantee party had indicated to their legal representative via email that he had reached agreement with a third party in respect of the proposed tenement, and that it appears that the grantee party will be transferring his interest to a third party. The native title parties then contended:
“12. As the grantee party has not submitted any indication of the intentions of this third party to the NNTT or the Native Title Party, the NNTT’s predictive assessment should be made on the basis that the rights given under the Mining Act will be exercised in the full: Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR at 50-51 [34]–[35].”
The Tribunal was not provided a copy of the email, but the grantee party did not challenge this assertion and, accordingly, I have proceeded on the basis that it accurately states the position.
The Tribunal has determined that, in the context of a predictive risk assessment, evidence of the intention of a grantee party can be taken into account. In Silver v Northern Territory (2002) 169 FLR 1 at 16/[30] the Tribunal said:
“The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement. In short, a grantee is under no obligation to adduce evidence as to its intentions with respect to a tenement, but if the grantee does adduce evidence the Tribunal can consider the material it has before it. It would not be sensible to indicate what weight would be given to the material presented, as in all cases it will depend on a range of issues which will vary with each expedited procedure objection. Nevertheless…evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.”
The native title parties contend that because the grantee party has indicated an intention to transfer his interests to a third party that the Tribunal should ignore any material he has produced about how he intends to carry out exploration activities and instead assume, in the absence of any material from the putative transferee, that the third party assuming legal responsibility for the tenement will exercise its legal entitlements to the fullest.
This contention has some merit. If the Tribunal was presented with uncontested evidence that a grantee party had executed an agreement to transfer its interests in a tenement to a third party, and that such transfer would definitely take place, then any evidence of the intentions of the transferor would be of scant value in undertaking a predictive risk assessment. Further, in the absence of any material provided by the transferee, the Tribunal would assume that the third party would fully exercise the rights conferred by the tenement. However, this is not the situation in this matter. The native title parties suggest that they have an email indicating a particular state of affairs. That email has not been lodged with the Tribunal. The grantee party has not contradicted the native title parties but conversely, has neither confirmed this or provided the Tribunal with any information which would indicate if such a transfer will take place, is likely to take place, or is only a possibility.
In these circumstances the Tribunal will take into consideration material lodged by the grantee party, including statements of intention. However, having regard to the uncertain state of affairs outlined above, the weight that will be accorded to the grantee party’s statements of intentions will be less than it otherwise would have been if it was clear that the intended grantee is to remain as such for the term of the exploration licence.
Community or social activities (s 237(a))
Paragraph 237(a) requires the Tribunal to assess whether a proposed future act is likely to interfere directly with the carrying on of the community and social activities of native title holders in relation to the relevant land or waters. The leading case on the interpretation of the paragraph is Smith v Western Australia (2001) 108 FCR 442. French J dealt firstly with the requirement that the Tribunal assess whether a proposed future act was likely to directly interfere with the carrying on of community or social activities. His Honour said (450/[23]):
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in paras (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term ‘likely’ in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance…. Consistently with the objects of the Act, the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.”
French J also dealt with the concept of direct interference. His Honour first pointed out that the Tribunal was required, in carrying out its predictive risk assessment, to make an evaluative judgement (451/[26]):
“The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”
French J then explained that the evaluation is contextual and as such, the risk assessment must not be undertaken in isolation. His Honour said (451/[27]):
“In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial…. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”
This interpretation of section 237 was followed by Nicholson J in Little v Western Australia [2001] FCA 1706 at [69] and [72] and endorsed by the Full Federal Court in Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 at 588.
There is scant material before the Tribunal on the issue of community or social activities by native title holders on or adjacent to the proposed tenement. There is in fact no reference to community or social activities in the Statement of Contentions lodged by each of the native title parties, nor consequently is it specifically contended that the grant of the proposed tenement will be likely to result in direct interference with the community or social activities of the native title holders.
Mr Lockyer deposes in his affidavit that his family move to “venues” all around the area of the proposed tenement, which area contains many important sites and a variety of totems. In particular Mr Lockyer deposed that he goes to this general area when “called out” and on holidays. During 2007 he deposed that he spent three months on country and that he does surveying and monitoring of the area for government departments. Certain locations on and near the proposed tenement are sacred, and are restricted from women and children, and access is limited to initiated men.
Neither Ms Dodd nor Ms Peck depose to any community or social activities on or adjacent to the proposed tenement.
The uncontested material before the Tribunal establishes that:
(a) there are no Aboriginal communities on, or adjacent to, the proposed tenement;
(b) the proposed tenement comprises an area of approximately 628 square kilometres. It is therefore geographically quite extensive. Having regard to the large area of the proposed tenement and the scant information about the native title parties accessing the area for community or social activities, it is unlikely that there would be a significant intersection between the activities of the grantee party and the community and social activities of the native title parties.
(c) there is scant primary evidence of members of either native title party accessing the area for community or social activities;
(d) neither of the native title parties have contended that the grant of the proposed tenement will be likely to directly interfere with the carrying on of community or social activities
(e) the proposed tenement is almost entirely overlapped by pastoral properties. It is legitimate for the Tribunal to assess the likely interference of the grant of a proposed future act on community or social activities having regard to existing limitations on those activities, in particular if the land and waters in question are the subject to pastoral leases – Lockyer & Ors/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [45]. Section 44H makes it clear that lawful activities in accordance with a pastoral lease prevail over the exercise of any native title rights and interests. There is no evidence before the Tribunal that pastoral activities have had, or are currently having, any appreciable impact on the carrying out of community or social activities;
(f) the area of the proposed tenement, and land and waters immediately adjacent, has been the subject of some of exploration tenements. There is no direct evidence that the grant of any tenement has resulted in any appreciable interference with the community or social activities of the native title parties; and
(g) the grantee party has provided evidence of his intentions. He has confirmed his intention to comply with the legislation outlined in the government party’s statement of contentions. Further he has signed and submitted to the native title parties a Yamatji Standard Heritage Agreement.
In conclusion, the Tribunal has been presented with scant evidence of any community or social activities on the area of the proposed tenement. In particular there is no material on either the frequency of such activities or even the nature of those activities. There are no Aboriginal communities on or adjacent to the proposed tenement and the subject land and waters are almost entirely covered by pastoral leases. In these circumstances the assessment of the Tribunal is that the grant of the proposed tenement will be likely to only have trivial and inconsequential impacts on community and social activities and would not be likely to impact on the carrying on of the community or social activities of the native title parties.
Areas or sites of particular significance (s 237(b))
The bulk of the native title parties evidence and contentions were directed towards paragraph (b) of section 237.
Taking into account the cultural sensitivities of the affidavit material lodged with the Tribunal I will outline in summary form the essence of the direct evidence that is of relevance in making a predictive risk assessment pursuant to paragraph 237(b).
The primary evidence was given in the affidavit of Mr Lockyer. As previously mentioned, Mr Lockyer is an initiated Baiyungu man. He deposes that he was initiated 18 or 19 years ago, and as an initiated man he learnt the knowledge of country and is able to access land and waters that is otherwise forbidden to the uninitiated. Mr Lockyer specifically deposes to the significance of Moogooloo Hill which, with two other named places, is a site where white pastoralists allegedly killed Aboriginal people. Moogooloo Hill is deposed to be a very important place for tribal men, and is a restricted area for women, children, uninitiated men and non-indigenous people.
Mr Lockyer also deposes to 300 other important sites in the area of the tenement, including rock art sites, burial grounds, ceremonial grounds, initiation grounds, mythological sites, totems and camping grounds. There is said to be a story for every site, and that the subject area is very significant because there are so many stories at all of the sites. Disturbance of the sites will result in the descendants of the traditional owners becoming sick and possibly dying.
Mr Lockyer deposes that the laying of the Alinta Gas pipeline recently resulted in the desecration of a number of sites, with the use of bulldozers scattering artefacts.
Apart from Moogooloo Hill, Mr Lockyer does not name or identify any of the 300 important sites. He does provide assistance in describing the sites as a class (e.g. burial grounds), and he does provide useful information about the importance of the sites according to traditional laws and customs. The other two named massacre sites may or may not be located within the boundaries of the proposed tenement.
Both Ms Peck and Ms Dodd depose that there are significant sites within the area of the proposed tenement including Moogooloo Hill which is a massacre site. Each also deposes that Moogooloo Hill can only be visited by initiated male owners of the land, or men accompanied by initiated male traditional owners. If uninitiated persons visit Moogooloo Hill without being accompanied by an initiated traditional owner they would get sick and possibly die. Such a person would need to be treated by an initiated male performing a named custom. Apart from knowing of the sacredness of Moogooloo Hill and the restrictions placed on persons visiting it, and the consequences of breaching the laws and customs, both depose that as women they are not allowed to know more than this. In short, the affidavits of both deponents confirm the thrust of the material contained in the affidavit of Mr Lockyer.
[76] The native title parties made a number of contentions concerning paragraph 237(b):
(a) the proposed tenement, it was contended, is located in a site rich area;
(b) areas or sites of particular significance not located within the area of the proposed tenement may also be impacted upon by the grant of the proposed tenement;
(c) without proper Aboriginal heritage site avoidance procedures being undertaken, it is likely that any activity permitted by the granting of the proposed tenement will impact negatively on sites of particular significance within the tenement area (especially Moogooloo Hill) as well as in the general area. Consultation and discussion between the native title parties and the grantee party is necessary to avoid interference with sites of particular significance;
(d) the grantee party had not led any evidence of its intentions to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers, or provided any details as to how he will proceed so as not to interfere with important sites in and around the area of the proposed tenement. Consequently, it was contended, an inference must be drawn that it is likely that the grant of the tenement will interfere with areas or sites of particular significance within the meaning of paragraph 237(b);
(e) the site rich nature of the proposed tenement makes it likely that the grant of the tenement will have one of the consequences set out in paragraphs (a)–(c) of section 237;
(f) the protection afforded by section 17 of the Aboriginal Heritage Act 1972 (WA) only covers those sites set out in section 5 of that Act;
(g) the criteria for the activation of the provisions of the Aboriginal Heritage Act 1972 are different to the test of particular significance under paragraph 237(b) of the Act;
(i) the definition of the areas to which the Aboriginal Heritage Act 1972 applies is more restrictive than the terms of section 237 of the Act. In particular paragraph 237(b) refers to sites of particular significance to the native title party, whereas section 5 of the Aboriginal Heritage Act 1972 requires, amongst other things, that the place must be of “importance and significance to the cultural heritage of the State”; and
(ii)the offence prescribed by section 17 of the Aboriginal Heritage Act 1972 for the damage or destruction of Aboriginal sites is more limited than the concept of interference under paragraph 237(c) of the Act;
(h) where there is a site rich area, the normal protective operation of Aboriginal Heritage Act 1972 may not be sufficient;
(i) the nature and number of sites and areas of particular significance in and around the proposed tenement render it incorrect to assume that even though the grantee party’s attention has been drawn to the provisions of the Aboriginal Heritage Act 1972 it would be unlikely that there will be interference pursuant to paragraph 237(b);
(j) the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers are advisory only, and inadequate to protect native title rights and interests.
The government party contended that the Aboriginal Heritage Act 1972 (WA) applies to the area of the proposed tenement and provides protection for Aboriginal areas or sites as defined in section 5 of that Act, of particular significance to the land. In particular, the government party contends that the Tribunal is bound by the decision of Nicholson J that, given the protective effect of the Aboriginal Heritage Act 1972, the chance of interference is remote – Little v Western Australia [2001] FCA 1706 at [75]–[77].
The government party also pointed out that since that decision the Aboriginal Heritage Act 1972 has been amended substantially increasing penalties for breaches – s.35 Sentencing Legislation Amendment and Repeal Act 2003 (WA).
The Tribunal’s attention was also drawn to the proposed condition (set out earlier) which the government party will place on the grant of the proposed tenement requiring the grantee party to execute the RSHA endorsed by peak industry groups and the Yamatji Land and Sea Council. This condition, it was contended, adds weight to the effectiveness of the existing regulatory regime and makes interference with sites and areas less likely to occur.
In its Reply to the Objectors’ Submissions, the government party also dealt with a number of the contentions of the native title parties outlined above.
The government party points out that the native title parties are incorrect in contending that the grantee party has not led any evidence of its intentions to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers, or to provide any details as to how it will proceed so as not to interfere with important sites. The Tribunal’s attention was drawn to the Statutory Declaration sworn by Melissa Jane Greer of 15 March 2007 on behalf of the grantee party to the effect that a RSHA had been executed by or on behalf of the grantee party and forwarded to the native title parties’ representatives for execution. This was contended to be evidence of the grantee party’s intention of avoiding damage or injury to areas or sites of significance to the native title parties, of complying with the relevant heritage protection legislation and of being prepared to engage in appropriate consultation with the native title parties.
[82] The government party also points out that the RSHA contains provisions for assignment which ensures that the assignee will likewise be bound by commitments for heritage protection entered into or otherwise required of the assignor. As additional protection, the government party refers to the fact that the condition imposed on the tenement requiring the execution of a RSHA will always be available to the native title parties as against the tenement holder.
[83] Finally, the government party, whilst agreeing that consultation and discussion between the native title parties and the grantee party is necessary to ensure that site and areas are not interfered with, nevertheless submits that all of the devices outlined in its contentions will ensure that proper Aboriginal site avoidance procedures will be taken and any activity permitted pursuant to the granting of the future act would not be likely to result in interference within the meaning of paragraph 237(b) of the Act to either Moogooloo Hill or the area in general.
[84] The Tribunal is required, when undertaking a predictive risk assessment pursuant to paragraph 237(b), to assess the likelihood of interference with areas or sites of particular significance. In order that an area or site be of “particular significance” it must be of special or more than ordinary significance to native title claimants – Cheinmora v Striker Resources NL (1996) 142 ALR 1 at 34-35 per Carr J.
[85] In determining this threshold issue there must be evidence before the Tribunal establishing that there are areas or sites of particular significance located on or adjacent to the proposed tenement. Contentions alone are clearly insufficient as they are statements of opinion not primary evidence. The evidence before the Tribunal must not only identify the areas or sites said to be of particular significance but also explain the importance or sacredness of those areas or sites in accordance with the traditional laws and customs of the relevant native title party. This principle was explained by Deputy President Franklyn in Hicks/Western Australia/Legend Mining NL [2002] NNTTA 324 (at pp 5-6) as follows:
“The assertion in his affidavit that there are a number of significant areas and sites ‘on or in the vicinity of the proposed tenement’ is insufficient to establish the existence on the proposed tenement of a site or area of ‘particular significance’ for the purposes of section 237(b). The question posed by that sub-section requires there to be evidence of the existence of such an area or site on the proposed tenement and/or in such proximity to it as to raise a real chance that mining operations which may be carried out pursuant to the grant will interfere with it. Evidence sufficient to raise the question of the real chance of interference is not found in broad assertions of the existence of sites or areas of particular significance in the general area or an assertion that such a site or area may exist on the land the subject of the proposed grant. The latter assertion, even by affidavit, without more is mere speculation as to the existence of a relevant area or site on the relevant land. In my opinion, a consideration of the question whether a proposed act is likely or not likely to interfere with something requires evidence to show that something exists and therefore is capable of being interfered with by the proposed act.”
[86] The Tribunal determined in Champion v Western Australia (2005) 190 FLR 362 at 370/[29] that the existence of an executed RSHA even combined with the government party’s proposed condition did not provide a basis for an automatic finding that the expedited procedure is attracted even if paragraph 237(b) is the only matter in issue. Nonetheless the Tribunal also found that the preparedness of a grantee party to execute a RSHA and the proposed condition were not completely irrelevant to the Tribunal’s inquiry. This is particularly the case where it is established that there are areas or sites of particular significance and it is important to have evidence of how the grantee party will exercise its rights and to what extent it will go in attempting to minimise the risk of interference.
[87] The relevance of the proposed condition was explained by Deputy President Sumner in Champion v Western Australia as follows (371/[33]):
“The Government party’s proposed condition also adds some weight to the effectiveness of the Government party’s regulatory regime and makes interference with sites less likely to occur. At any time it will be open to a native title party to insist on at least the level of site protection which has been agreed generally by Government, industry and NTRBs. While this may not be their ideal or preferred position the Government party’s proposed condition establishes what is in effect a minimum standard which will always be available to them. In my view the proposed condition enhances the existing regulatory regime and can be taken into account as one of the relevant factors in determining a particular case whether interference with sites of particular significance is likely.”
[88] The Tribunal has comprehensively considered the operation of Western Australia’s site protection regime in the context of paragraph 237(b) in a number of inquiries. For the purpose of this matter I adopt the findings and analysis of this regulatory regime made by Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437 at 464-465/[50] – 51]. Further, despite some obvious drawbacks and deficiencies, the protective operation of the Aboriginal Heritage Act 1972 was favourably assessed by Nicholson J in Little v Western Australia [2001] FCA 1706 where His Honour found, after considering the operations of sections 16, 17 and 18 (at [77]):
“For the applicants it is submitted therefore that the Aboriginal Heritage Act does not provide unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s 18 to permit a breach of s 17 may occur in circumstances where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect of the sections in the Aboriginal Heritage Act. In other words the chance of such interference is not real and is remote in those circumstances.”
[89] Despite the protective operation of the Aboriginal Heritage Act 1972 it does not constitute a complete answer to the question whether the doing of a future act will be likely to result in interference to sites or areas of particular significance within the meaning of paragraph 237(b). On a number of occasions the Tribunal has found that despite the operation of the legislation there remains a real chance or risk of interference - Young v Western Australia (2001) 164 FLR 1. Each inquiry is presented with evidence which needs to carefully and discretely evaluated. Whilst the operation of the site protection regime renders it unlikely that the doing of the future act will result in interference with areas or sites of particular significance, the Tribunal is not absolved from undertaking its own risk assessment – see also Parker v Western Australia [2007] FCA 1027 at [13] and [18] per Siopis J.
[90] Turning now to the evidence before the Tribunal, it is clear that Moogooloo Hill is a site of great importance to members of the native title parties. This site is located within the proposed tenement, has been identified by the deponents and its particular sacredness has been explained by Mr Lockyer. The uncontested evidence of the deponents highlights that it is a site that is of special or more than ordinary significance to both claim groups. Accordingly, I find that Moogooloo Hill is a site of particular significance within the meaning of paragraph 237(b).
[91] The more difficult issue is the further contention of the native title parties that the general area of the proposed tenement is a site rich area. Mr Lockyer deposed that, apart from Moogooloo Hill, there were 300 important sites in the area of the proposed tenement, but many of them such as rock art and painting were not registered. He further deposed that this area also contained burial grounds, ceremonial grounds, initiation grounds, mythological sites (i.e. they cause people to get sick), totems and camping grounds. Mr Lockyer deposed that there were rock chippings, spears, artefacts and scatterings close to all of these locations. Of relevance to the risk assessment, he deposed that there are burial sites all over the area, and sites that are so significant that they should not be disturbed, but that traditional owners were the only people who knew where these sites were and he was not permitted to locate these sites to people who were not initiated men. Finally he deposed that there was a real presence within that area, a strong force, and that certain consequences would occur if the wrong people entered the area and disturbed the sites.
[92] It must be noted at the outset that in his affidavit Mr Lockyer did not depose to, or identify particular sites, other than Moogooloo Hill and two other massacre sites (it is uncertain if these sites are located within the proposed tenement). His evidence was more generalised, and in the normal course evidence of this type would fail to meet the evidentiary requirement outlined by Deputy President Franklyn in Hicks. The Tribunal has explained in numerous inquiries that evidence by an appropriately authorised and qualified member of the native title party identifying areas or sites it is a condition precedent to making a finding that a site or area is of particular significance. Nonetheless the evidence presented by the native title parties is compelling and the weight given to it in undertaking a predictive risk assessment pursuant to paragraph 237(b) is explained below.
[93] A critical factor in this inquiry is that there has not been any contest over the qualifications of Mr Lockyer to provide the evidence submitted or of the veracity of the statements contained therein. In short, the Tribunal has been presented with evidence which, prima facie, is compelling and relevant. It is not incumbent or appropriate, for the Tribunal to look behind uncontested evidence. The Tribunal will, unless there are compelling reasons to the contrary, accept in good faith uncontested evidence and give it the appropriate weight on the basis of its inherent value to the inquiry and relevant legal principles. Although the Tribunal is not bound by rules of evidence (s.109(3)), there is one such rule that is of relevance in this matter. There is a line of both State and Federal authority to the effect that in a matter where evidence produced is neither contested nor inherently unreasonable or incredible, a tribunal of fact is not, as a matter of law, entitled to decline to act upon it – Repatriation Commission v Reid (1984) 54 ALR 157 at 162-163 per Wilcox J. This does not relieve the Tribunal from carefully considering the evidence and determining the issues in contention, but it does mean that uncontested evidence of the type presented to this inquiry be accorded proper weight.
[94] The next issue that I have taken into account is that Mr Lockyer has deposed that he is precluded by traditional laws and customs from openly identifying sites of particular significance. Neither the government or grantee parties requested an oral hearing so that greater particularity of sites could be given by Mr Lockyer in a culturally sensitive manner. I have therefore accepted that within the bounds of traditional laws and customs Mr Lockyer has given a fulsome account of sites of significance on and in close proximity to the proposed tenement.
[95] A further matter I have also taken into consideration is the very nature of Mr Lockyer’s affidavit. It speaks quite eloquently and directly of the deep spiritual importance of the land and waters comprising the proposed tenement. His affidavit considered as a whole is a telling document and one which the Tribunal has given significant weight to.
[96] In summary, the evidence of Mr Lockyer suggests that the area in and around the proposed tenement has a sacred quality to members of both claim groups. He paints a picture of country which is rich in both the physical and spiritual manifestations of traditional laws, customs and life in general.
[97] In this matter I have found that each of the deponents has the requisite authority or “qualifications” to provide evidence about each of the claim groups’ traditions in relation to the relevant areas or sites. In the case of Ms Dodd and Ms Peck it confirms the veracity of the evidence provided by Mr Lockyer in the sense that each of these deponents confirms the sacredness of Moogooloo Hill and laws and customs that render it restricted to only initiated men. I also find that each of the deponents has identified the sacred quality of Moogooloo Hill, and Mr Lockyer has identified the overall sacredness of the general area of the proposed tenement. Finally, each of the deponents has addressed why Moogooloo Hill is of “particular” significance within the meaning of paragraph 237(b).
[98] The Tribunal has in a number of determinations explained what a “site rich” area is, and the implications that flow from that finding. It is important to emphasise that this term has no statutory foundation, rather it is a short hand description for 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. The presence or absence of the registration of sites is not determinative of whether an area is site rich, although the fact that a number of sites have been registered does put the Tribunal on notice of the potential significance of the area – see Ward v Northern Territory (2002) 169 FLR 303 at 326-327 and Lockyer & Ors/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [19]. In every inquiry the Tribunal is required to assess the particular evidence before it, and the presence of site registration or the absence thereof, is only one factor. Clearly, the most important factor in any such inquiry is the primary evidence of persons who hold qualifications to speak on behalf of country in accordance with traditional laws and customs.
[99] The primary evidence presented to the Tribunal suggests that the whole fabric of the country on and immediately adjacent to the proposed tenement is imbued with a pervasive spirituality such that unauthorised entry on the relevant land and waters would be likely to result in interference within the meaning of paragraph 237(b).
[100] Accordingly I find, albeit after much consideration, on the basis of the uncontested primary evidence presented to the Tribunal, that the area of the proposed tenement is “site rich” and that the government party’s site protective regime of itself will not be sufficient to prevent a real chance or risk of interference pursuant to paragraph 237(b) if the tenement is granted and exploration activities take place. In reaching this conclusion I have had regard to the following matters:
(a) the legal protections prescribed by the Aboriginal Heritage Act 1972 significantly reduce the risk to areas and sites of particular significance being interfered with by the grant of a proposed tenement. This risk is even further reduced by the execution of a RSHA by a grantee party. However, while the starting point of an inquiry in Western Australia is that the likelihood of interference will be remote, this needs to be reassessed in light of any evidence produced by a native title party;
(b) in this matter the native title parties have produced primary evidence from three persons who are members of either of the two objecting claim groups;
(c) the primary evidence submitted to the Tribunal is not challenged by either the government or grantee parties;
(d) the deponents each have the requisite authority or qualifications to depose to the matters contained in the primary evidence;
(e) the primary evidence establishes that Moogooloo Hill is a site of particular significance with the meaning of paragraph 237(b);
(f) the primary evidence also suggests that the area of the proposed tenement is imbued with a deep spirituality for the native title parties;
(g) this area contains many sites of importance, the cumulative effect of which is that the whole area of the proposed tenement is of “particular significance”;
(h) the entry onto many parts of the proposed tenement area without proper authorisation by an initiated male person would be contrary to the traditional laws and customs of the native title parties and carry with it, according to traditional law, unfortunate consequences;
(i) the protective regime in place in Western Australia would not prevent the risk or real chance that sites will be interfered with;
(j) even applying the presumption of regularity to the grantee party, and discounting the question of assignment of the tenement, the very fact of unauthorised entry onto parts of the tenement area will result in interference.
[101] In this inquiry, the determining factor has ultimately been the weight of the uncontested evidence of Mr Lockyer. This evidence establishes that the tenement area is “site rich” and despite the protective operation of the relevant State legislation and RSHA, has resulted in the Tribunal evaluating that there is a real chance or risk of interference with an area of particular significance if the proposed tenement is granted without the parties first engaging in good faith negotiations. This conclusion was only reached after much consideration and a careful weighing of all of the factors. The Tribunal recognises that the Act “is clearly remedial in character and thus should be construed beneficially, so as to give the most complete remedy which is consistent with the actual language employed” – Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ. The Tribunal also recognises the protective nature of the relevant legislative regime in force in Western Australia and the implications this has when undertaking a predictive risk assessment pursuant to paragraph 237(b). In this matter the unique nature of the evidence of the deponents ultimately led to the conclusion reached. This inquiry highlights the importance of objectors leading strong primary evidence and of the weight that may be placed on such evidence where it is not challenged or its veracity is not otherwise disputed.
Major disturbance to land and waters (s 237(c))
[102] In view of my findings pursuant to paragraph 237(b) it is not necessary to consider this paragraph.
Determination
[103] The determination of the Tribunal is that the grant of exploration licence E08/1758 to Zhukov Pervan is not an act attracting the expedited procedure.
John Sosso
Deputy President
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