Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond - [2013] NNTTA 112

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 112 (13 August 2013)

Application No: WO2012/0336

IN THE MATTER of the Native Title Act1993 (Cth)

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

Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants (WC1999/025) (native title party)

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The State of Western Australia (Government party)

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William Robert Richmond (grantee party)

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

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  13 August 2013

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA), s 17

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48, (‘Campbell’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Western Australia/Areva Resources Australia Pty Ltd (formerly AFMECO Mining & Exploration Pty Ltd)[2013] NNTTA 74, (‘Areva Resources’)
Dorothy Tucker and Thelma Tucker on behalf of the Narnoobinya Family Group/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126, (‘Tucker’)
Hughes v Western Australia (2003) 182 FLR 362, (‘Hughes’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Parker on behalf of the Martu Idja Banykima People v Western Australia [2007] FCA 1027, (‘Parker 1’)
Parker v Western Australia (2008) 167 FCR 340, (‘Parker 2’)
Rosas v Northern Territory (2002) 169 FLR 330, (‘Rosas’)
Silver v Northern Territory (2002) 169 FLR 1, (‘Silver’)
Smith v Western Australia (2001) 108 FCR 442, (‘Smith’)
Walley v Western Australia (2002) 169 FLR 437, (‘Walley’)
Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41, (‘Bayform Holdings’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72, (‘Goonack’)

Representative of the Ms Barbra Friedewald, Kimberley Land Council
native title party: Ms Danica Trewen, Kimberley Land Council

Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DETERMINATION

On 14 December 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licences E04/2141 (‘the proposed licence’) to William Robert Richmond (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 19 graticular blocks (approximately 61.81 square kilometres) located 116 kilometres southeast of Derby in the Shire of Derby-West Kimberley. The entirety of the proposed licence area is subject to the Nyikina and Mangala native title claim (WC1999/025 – registered from 28 September 1999). There are no other registered claims or determinations of native title within the relevant area.
On 16 April 2012, Daisy Lungunan and others on behalf of the Nyikina and Mangala native title claimants (‘the native title party’) lodged an objection application with the Tribunal in respect of the proposed licence (designated by the Tribunal as WO2012/0336).
In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a four month period after the closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. It is understood that negotiations took place between the native title party and the grantee party from at least May 2012 to November 2012 in relation to this and other matters, and the Tribunal extended directions on a number of occasions to allow negotiations to continue. On 13 November 2012, the native title party informed the Tribunal that the negotiations could not go any further and requested that the matter proceed to inquiry. At this time, the native title party asked the Tribunal to vary directions once more to take into account the difficulties occasioned by the beginning of the wet season and the commencement of law business. This requested was granted by then President Graeme Neate on 26 November 2012.
I was appointed as Member to conduct the inquiry on 19 December 2012.
The native title party provided its contentions and evidence on 12 April 2013. These documents included a statement of contentions (‘NTP Contentions’), the affidavit of Joe Green affirmed on 10 April 2013 (‘the Green Affidavit’) and the affidavit of Barbra Friedewald affirmed on 10 April 2013 (‘the Friedewald Affidavit’). The Government party’s supporting documents were provided on 16 April 2013, and though received out of time, neither the native title party nor the grantee party objected to my use of the material. In relation to the Tribunal’s direction that the Government party provide a statement of contentions, the Government party requested additional time in which to comply. I granted the extension, and the contentions were provided on 17 May 2013 (‘GVP Contentions’). No contentions or supporting documents were received from the grantee party.
On 28 May 2013, the native title party wrote to the Tribunal to advise that it would be unable to attend the listing hearing, but had no further submissions and was content for the matter to proceed ‘on the papers’ in accordance with s 151(2) of the Act. At the listing hearing, the Government party agreed that the matter could be determined without a hearing. The grantee party did not attend the listing hearing. The Tribunal sought the grantee party’s views on the issue by email, but received no response. After reviewing the material before me, it appeared to me that it was appropriate to proceed on the papers.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]-[41] (see also Parker 1; Parker 2). I also adopt those set out by Deputy President Sosso in Silver.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little, especially [41]-[57]).

Evidence in relation to the proposed acts

The Government party provides the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes that the underlying tenure of the land within the proposed licence is as follows:
·Pastoral Lease (Indigenous Held) (Myroodah) I3114/1165 overlapping at 100 per cent.
·Historical Lease 396/444 overlapping at 100 per cent.
The quick appraisal indicates that proposed licence, if granted, will be subject to two petroleum exploration permits, which together cover the entire area encompassed by the proposed licence. The area has also been subject to following historical mineral tenure: two exploration licences, one granted in 2006 and surrendered in 2009 and the other granted in 2010 and surrendered in 2011, both of which covered 100 per cent of the proposed licence; 38 mineral claims, all of which were granted in 1979 and surrendered by 1982, covering between 0.3 and 1.9 per cent of the tenement area; and four temporary reserves, overlapping between 14 and 100 per cent.
The report from the DAA Database establishes that there are no registered sites within proposed licence area. The report provided by the Government party does not include information as to whether there are any ‘other heritage places’ in the area (that is, sites listed on the DAA Database that have not been registered as ‘Aboriginal Sites’ under the Aboriginal Heritage Act 1972 (WA) (‘AHA’)). However, a version of the report attached to the Green Affidavit records the following ‘other heritage places’ within proposed licence:
·Myroodah Station (Site ID 13608) – insufficient information – closed – no gender restrictions.
·Myroodah Station: Hills (Site ID 13609) – insufficient information – closed – no gender restrictions.
·Myroodah Station: Sandhill (Site ID 13613) – insufficient information – closed – no gender restrictions.
·Myroodah Station: Swamp (Site ID 13614) – insufficient information – open – no gender restrictions.
There does not appear from the Government party’s documents or Tribunal mapping to be any Aboriginal communities within the proposed licence; however, the Looma community is located about 10 kilometres to the north.
The Draft Tenement Endorsement and Conditions Extract indicates that proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]). The extract indicates that the grant will also be subject to the following conditions:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting requirement or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of
·the grant of the licence; or
·registration of a transfer introducing a new licensee
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Station MYROODAH and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
In respect to the Camballin Irrigation District also subject to:
8.Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water kununurra [sic] seven days prior to commencement of those activities.
9.Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
10.The rights of ingress to and egress from the licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
11.The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water’s Guidelines and Water Quality Protection Notes.
12.Activities requiring the abstraction of water from any waterway, wetland or drain is prohibited unless a licence has been obtained from the Department of Water.
13.Activities that may disrupt the natural flow of any watercourse are prohibited unless a licence has been obtained from the Department of Water.
14.Activities on any existing or designated future irrigation area, or on any strip of land within 50 metres of an irrigation channel, drain wetland or watercourse being confined to surface geological, geophysical and or geochemical surveys and drilling unless the written approval of the the [sic] Department of Water is first obtained.
15.Excavation activities are prohibited on any existing or designated future irrigation districts, or on any area of land within 50 metres of the banks of an irrigation channel, drain, wetland or watercourse, unless undertaken with the written permission from the Direction, Environment, DMP and the Department of Water.
I note that the Camballin Irrigation District covers 47.4 per cent of the proposed licence.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant:
1.The Licensee’s attention is drawn to the provisions of the:
· Aboriginal Heritage Act 1972 and any Regulations thereunder;
· Water and Rivers Commission Act 1995 and any Regulations thereunder; and
· Rights in Water and Irrigation Act 1914 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence of the native title party

The native title party submits that the proposed licence is:
·likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land concerned;
·likely to interfere with areas or sites of significance to the persons who are the holders of the native title in relation to the land or waters concerned; and
·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 support of these submissions, the native title party relies on the Green and Friedewald Affidavits. The affidavits are reproduced at Annexures A and B of these reasons.
Mr Green describes himself as one of the senior people for the Nyikina and Mangala claim group and is a registered claimant. Mr Green states that he has authority under Nyikina and Mangala law to speak about land matters. I accept Mr Green has the appropriate authority to give evidence on behalf of the native title party.

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

The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith at [23]. The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
Mr Green deposes that people from the Looma community go out to the proposed licence area every year during the dry season and hunt a variety of animals, such as bush turkey, goanna, kangaroo and emu (Green Affidavit, paragraph 13). According to Mr Green, these activities are carried on in the western side of the proposed licence area and people from the community do not visit the area during the wet season due to various practical difficulties (Green Affidavit, paragraphs 10-11). Mr Green says that the area has been fenced off by the holders of the pastoral lease; however, he states that the station allows local people to go hunting there and keeps a record of people coming and going (Green Affidavit, paragraphs 12 and 16). Mr Green states that people from the community use the main road that travels through the proposed licence to visit various fishing spots (Green Affidavit, paragraph 17). Mr Green says there is a soak that touches the road within the proposed licence area, which makes it a good place to camp (Green Affidavit, paragraph 18). According to Mr Green, boab and paperbark trees grow around the soak, and the paperbark is used as a raw material in a variety of activities, such as the construction of shelters (Green Affidavit, paragraphs 18-20). Mr Green also states that there is a reserve for old people within the proposed licence area.
The Government party accepts that the community and social activities described by Mr Green are carried on in the area of proposed licence. However, it contends that, though Mr Green deposes that the station keeps a record of people coming and going, there is no evidence of the actual frequency or otherwise of these visits (GVP Contentions, paragraph 41). In making this contention, the Government party does not seem to have taken account of the evidence of Ms Friedewald, who deposes to conversations she had with a Richard Brake of the Indigenous Land Corporation and a Pamela Allsop of Myroodah Station. Relevantly, Ms Friedewald states that she was informed by Ms Allsop on 9 April 2013 that at least three vehicles from Looma travel through the pastoral lease every weekend of the dry season, and that these vehicles always had more than one person inside.

On the face of it, there are several difficulties with the Friedewald Affidavit. First, the evidence regarding the number of cars travelling past Myroodah Station is hearsay. Second, the conversations with Ms Allsop and Mr Brake are not recorded in direct speech, but are paraphrased by Ms Friedewald. Third, it is unclear from the affidavit exactly what Ms Allsop’s connection with the station is or how often she would be in a position to observe the passage of vehicles through the station. The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence: s 109(3) NTA. Furthermore, section 109(1) of the Act provides that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. However, the Tribunal may refer to the rules of evidence as a guide as to the weight that should be given to particular evidence (see Hughes at [13]-[18]; Tucker at [35]).
The mere fact that the other parties have not draw attention to the defects in Ms Friedewald’s affidavit does not mean that the Tribunal should not have regard to these defects in determining the weight the evidence should be given. I acknowledge there are inherent practical difficulties in obtaining affidavit evidence from people who resides in a remote location. However, in circumstances where Ms Friedewald has provided a summary of the conversation, Ms Allsop has not been adequately qualified, and the evidence is inherently imprecise, I have not given that evidence very much weight. Nevertheless, I accept that members of the Looma community travel to the proposed licence frequently during the dry season.
To the extent that members of the native title party carry on any community or social activities within the area of the proposed licence, the Government party contends that there is not likely to be direct interference with those activities. Specifically, the Government party says that activities associated with prior mineral exploration and mining will have affected, and continue to affect, the extent to which community and social activities can be carried out in the area. The Government party also relies on the fact there are no Aboriginal communities in the proposed licence area, and that the exploration activities planned by the grantee party are not likely to have any real disruptive effect on the native title party’s activities (GVP Contentions, paragraphs 42(a)-(c)). I do not accept these submissions. While there is evidence of prior mineral tenure, it is not substantial and there is no evidence of how and to what extent the rights conferred by that tenure was exercised in the proposed licence area. Although there are no Aboriginal communities within that area, there is one nearby. Mr Green’s evidence establishes that members of that community visit the area during the dry season. As to the grantee party’s activities, there is no evidence of the grantee party’s intentions. Therefore, in the absence of evidence to the contrary, I am entitled to assume that the grantee party will exercise the right conferred under the proposed licence to their full extent (see Silver at [30]-[32]).
The Government party further contends that hunting and exploration ‘are, by their nature, inherently capable of coexistence’ and there is little prospect that the exercise of the grantee party’s rights under the proposed licence will prevent the native title party’s access to the area in any substantial way (GVP Contentions, paragraphs 42(d)-(e)). I accept that, given the proximity of the proposed licence to the Looma community and the evidence of Mr Green, there is a chance the grantee party’s activities might intersect with those of the native title party, though it is difficult to predict to what extent in the absence of information about the proposed exploration. However, I find that, even if the grantee party’s rights under the proposed licence are exercised to the utmost extent, they are unlikely to interfere substantially with the community or social activities described by Mr Green. There is a possibility that certain types of exploration activity could interfere with the soak referred to by Mr Green. However, Mr Green’s evidence is that the significance of the soak is that it makes the area a good place to camp, which he says used to be done by the older people in the Looma Community (Green Affidavit, paragraph 18). There is nothing in Mr Green’s affidavit to suggest that camping continues on a regular basis, or that the soak is somehow essential to the conduct of the native title party’s other activities. It is also possible that the grantee party’s activities could have an effect on the paperbark trees surrounding the soak. However, it is implausible that the exploration would result in the destruction of the trees, or that it is likely to damage the trees to the point that the native title party’s use of the material would be substantially affected.
In relation to the reserve referred to by Mr Green, there is no evidence of the reserve in the Tengraph information or in the Tribunal’s mapping. If the reserve is in fact located in the proposed licence area, I am not sure what bearing it would have on the likelihood of interference with the native title party’s community or social activities.
In conclusion, I find that the grant of the proposed licence is not likely to directly interfere with the native title party’s social or community activities.

Interference with sites or areas of particular significance - s 237(b)

In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [16], the DAA Database shows there no registered sites in the area of proposed licence, though it does record four ‘other heritage places’. This does not mean there are no sites or areas of particular significance to the native title party within the proposed licence area or in the vicinity. The Register of Aboriginal Sites does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
Mr Green states that there are places in the tenement area that are important to the Mangala people, as well as places in the eastern part of the proposed licence that have special stories and can be ‘very dangerous’ (Green Affidavit, paragraph 22). Mr Green notes there are sites which he describes as being ‘registered’ (that is, the ‘other heritage places’ referred to in [16] above), but says he knows of other special places that are not listed on the register (Green Affidavit, paragraphs 23-24). Specifically, Mr Green states that there is a burial site ‘near Garden Well/Bore and right around the hill’ (Green Affidavit, paragraph 25); a dangerous place for women and men along the eastern edge of the proposed licence area (Green Affidavit, paragraph 26); a hill near Garden Bore and closer to 6 Mile Pool that is also dangerous place (Green Affidavit, paragraph 26); and other hills to the southwest of Garden Well that are associated with a dreaming story and are considered a to be ‘a very bad and dangerous place’ under traditional law (Green Affidavit, paragraph 28-29). Mr Green also says that people visiting the area must be introduced to the country, or there may be consequences for that person’s health (Green Affidavit, paragraphs 30-34).
The Government party submits that there is insufficient evidence to demonstrate that the sites referred to by Mr Green are sites of particular significance to the native title party (GVP Contentions, paragraph 56). I agree with the Government party’s submission insofar as it refers to the site said to exist along the eastern edge of the proposed licence and the hill near Garden Bore and 6 Mile Pool. In my view, Mr Green’s evidence about these sites lacks the precision required to enable the Tribunal to be satisfied that they are sites of particular significance, both in relation to their location and their relationship to the law and culture of the native title party. However, I do not accept the Government party’s submission in relation to the hills associated with the dreaming site or the burial site near Garden Well. With regard to the hills, Mr Green clearly outlines the foundations of the site’s significance in accordance with the native title party’s traditions. While Mr Green does not provide the site’s exact location, I consider his evidence to be sufficient to support a finding that it is a site of particular significance to the native title party. Although Mr Green’s evidence about the burial site does not directly address the issue of the site’s significance in accordance with the traditions of the native title party, the Tribunal has previously accepted that a burial site may be a site of particular significance notwithstanding the fact the evidence does not specifically describe the connection between the site and the laws and customs of the native title holders: see Bayform Holdings at [43]. In the present case, I am prepared to infer that the burial site is of particular significance to the native title party.
I do not accept the Government party’s contention that the native title party’s evidence about these sites reflects a general spiritual concern to which s 237(b) does not apply. It is apparent from Mr Green’s evidence that his concerns relate to the sites themselves, and the apprehended consequences of interference with those sites. For instance, Mr Green says in relation to the dreaming site that ‘[t]here will be trouble for the whole community if someone goes out [there]’, and observes that rangers are responsible for keeping people away from the area. This underscores the significance of the site to the members of the native title party, and especially those residing in Looma.
The question then is whether the grant of the proposed licence is likely to interfere with these sites. The native title party contends that the area is ‘site rich’ and it is therefore incumbent upon the grantee party to lead some evidence to provide a basis on which the Tribunal might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties of avoiding interference with sites in site rich areas (paragraph 18). I and other Tribunal members have already addressed at length the problems with using the term ‘site rich’ as shorthand for the predictive assessment required by s 237(b), and I adopt the principles enunciated by the Tribunal in those matters (see most recently Geotech International at [43]; Campbell at [55]; Areva Resources at [71]-[72]). Nevertheless, the approach taken by the Tribunal in those decisions has been that, where the evidence establishes there is a risk of interference, it may be incumbent on the grantee party in certain circumstances to provide evidence as to how such interference may be avoided, regardless of the operation of State regulatory regimes. In the present case, Mr Green’s evidence suggests there is a particular risk of interference with sites of the kind referred to in s 237(b), even of an inadvertent nature.
The grantee party has not provided any evidence of the activities it proposes to carry out on the proposed licence, and has not explained how it intends to avoid interference with sites referred to by Mr Green or generally. There is no evidence before the Tribunal that the grantee party has offered to enter into a heritage agreement, and the Government party has not indicated that it will impose a condition requiring the grantee party to do so. Though the Tribunal has previously found that the regulatory regime based on the AHA will generally be adequate to minimise the risk of interference to sites or areas of particular significance, each matter must be considered on its own facts (see Butcher Cherel at [81]-[91]). The native title party contends that it is possible for a grantee party to interfere with a site within the meaning of s 237(b) without being in breach of the AHA, and that mere presence in certain areas may cause direct interference (NTP Contentions, paragraph 24). In Geotech International, I accepted it was ‘arguable that the nature of the interference to a site contemplated by s 237(b) of the Act may be wider than that protected by s 17 (particularly s 17(a)) of the AHA’ (at [40]). However, I found that, though the evidence established that the presence of strangers on country would impact the spiritual beings that live in it, the evidence was not tied to any specific site of particular significance. Though I do not accept the native title party’s present submission that the AHA will be ineffective due to the ‘complex nature and number of sites and areas of particular significance within and around the tenement’ (NTP Contentions, paragraph 27), there is evidence of a significant risk of interference with the hills associated with the dreaming site or the burial site near Garden Well by way of unauthorised access. In circumstances where the grantee party has not indicated how it intends to mitigate that risk, I am not satisfied that the AHA will be adequate to ensure that risk will not be realised.
Having regard to these considerations, I find that the grant of the proposed licence is likely to interfere with a site of particular significance to the native title party in accordance with its traditions.

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

The Tribunal is required under s 237(c) to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contends that the grant of the proposed licence will create rights whose exercise is likely to involve major disturbance (NTP Contentions, paragraph 33). It also contends that there are places within the proposed licence area that are so significant to the local Aboriginal community that ‘unchecked persons and activities may disturb the ecological and environmental balance which the native title party relies on for the hunting, gathering and teaching opportunities it provides’ (NTP Contentions, paragraph 35). In particular, the native title party refers to Mr Green’s statement that the exploration could damage water sources or special places (see Green Affidavit, paragraph 38).
The Government party contends (at GVP Contentions, paragraph 70) that the grant of the proposed licence is not likely to involve, or create rights the exercise of which is likely to involve, major disturbance to the land for the following reasons:
·The exercise of rights conferred by the proposed licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment.
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation following completion of exploration.
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and the activities contemplated by the grantee party in the proposed licence area would be the same as, or no more significant than, the previous and continuing use of the area.
·It does not appear that the area has any particular characteristics that would be likely to result in ‘major disturbance’ to land or waters arising given the activities proposed by the grantee party.
As I noted above at [27], there does not appear to be a substantial history of prior mineral tenure, and there is no evidence in relation to the exercise of exploration or mining rights in the area. However, I do note the existence of the pastoral lease, and accept that the activities of the pastoral lessee would have contributed to a reduction in the environmental and ecological qualities of the area, irrespective of whether the lease is classified as being Indigenous held. I also accept the Government party’s submissions that, whatever the grantee party’s activities may be, they will be subject to mining, heritage and environmental regulation, as well as the conditions proposed by the Government party and noted at [18] above. There is no evidence that the grantee party will not comply with these regulations or the conditions imposed.
As for the Government party’s assessment that the proposed licence area does not possess any particular characteristics that might warrant the conclusion that major disturbance is likely, the fact that part of the area is designated as an irrigation district suggests that there are significant sources of water in the area. This is consistent with Mr Green’s concern about the possibility of damage to water sources within the proposed licence area. However, there is not a great deal of material before me in relation to that issue, and to find that major disturbance is likely in this case would merely be speculative and not supported by the evidence as a whole. In any case, the conditions proposed by the Government party impose additional requirements in relation to the irrigation district. These requirements include:
·where practicable, providing written notification to the Department of Water, Kununurra, of the timeframe, type and extent of proposed ground disturbing activities seven days prior to the commencement of those activities;
·a prohibition on the disturbance or removal of any significant waterway, wetland or fringing vegetation without prior written approval from the Department of Water;
·a prohibition on the abstraction of water from any waterway, wetland or drain or any activities that may disrupt the natural flow of any watercourse, unless a licence has been obtained; and
·the preservation of rights of entry to officers of the Department of Water for inspection and investigation purposes.
I accept that the requirements imposed by these conditions will ensure the grant of the proposed licence is unlikely to have a significant effect on water sources in the irrigation district.
Insofar as the native title party’s submissions relate to the likely effect of the grant on sites of significance to the native title party, I have already dealt with that issue in relation to s 237(b). In any case, I note that concerns about unauthorised access will be irrelevant to s 237(c) unless that access is likely to involve some element of physical disturbance to the land or waters (see Rosas; Goonack at [44]).
In summary, I find that the grant of the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.

Determination

The determination of the Tribunal is that the grant of exploration licences E04/2141 to William Robert Richmond is not an act attracting the expedited procedure.

Daniel O’Dea
Member

13 August 2013

ANNEXURE A

AFFIDAVIT OF MR JOE GREEN

I, Joe Green, pensioner, of Looma Community, in the State of Western Australia, affirm:

My name is Joe Green. My Aboriginal name is Budubi.
I was born in 1922 in the desert.
My mother was Walmajarri, and my father side is Mangala. My father was known as Worli but he was also known as Jimmy Worli.
I am a named applicant of the Nyikina Mangala claim group.
I am one of the senior people for the Nyikina Mangala I am a named applicant for the Nyikina Mangala Native Title Determination Application WC99/25. Under our Law I have authority to speak about Nyikina Mangala land matters.

I know the area where William Robert Richmond, “the grantee party”, has applied for Exploration Licence Number E04/2141 “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
To get to the exploration license area we go through Myroodah Station. Whenever we go out to the area we let the people at the station know where we are going.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

I live at Looma community which is about 10km away from the exploration license area.
The exploration licence falls wholly within Mangala country.
There are two different parts of the tenement area. The eastern side has special sites and stories in it which I will discuss later and the western side has good hunting.
We do not go out to the exploration license area during the wet season because the ground is too wet and the water comes up and you can’t cross some of the creaks [sic] that the roads are blocked and we cannot get out there.
Station in the area which means the station is fenced off but the station lets local people go hunting there.
Every year during the dry season people from my community go out to exploration license area and go hunting for bush turkey gramadgga, goanna barni, kangaroo wandjeeri and emu carnarnanja.
Last year people from our community also went out to the exploration license area to clear areas.
There is a reserve there for old people.
The station people at Myroodah keep a record of people coming and going.
People from the community use that main road through the tenement, every time they go to their favourite fishing spots they have to drive through the exploration license area.
Where the tenement is touching the road there is good soak water, spring water Mangaila. The water is good drinking water which makes the exploration license area a good place to camp. The older people of our community use to camp out there. It is important to Mangala people that the soak water does not get damaged by the explorer or the explorer’s workers.
Around the soak grows Boab trees and very large paperbark trees. Because the paperbark trees are so broad we are able to use the paperbark to tie it to trees and make a strong bow shed, shelter.
The paperbark is also good to use if you have left your plates in the community. The children who go out to the exploration license area like to use the paperbark to make boats. The old people use to use [sic] the paperbark as shoes when the ground got wet.
If exploration companies come out to the tenement companies need to talk to us first so we can still go out to the exploration license area for the good hunting and to make sure the explorer does not damage the good water in the soak.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Mangala people, there are also places which have special stories and can be very dangerous on the eastern part of the exploration license areas.
I know that there are some heritage places identified on the Aboriginal Heritage Register because I have been shown them marked up on a map of the exploration license area. Those marked “B”. The sites which are registered are called; Myroodah Station, Myroodah Station:Hills. Myroodah Station Sand Hill; Myroodah Station: Swamp.
There are other special sites which I know of that are not listed on the register.
There is a burial site near Garden Well/Bore and right around the hill.
There is a dangerous place for women and men along the eastern edge of the exploration license area. It is dangerous because of heritage and out cultural stories and it is also dangerous because big trap door spiders live in the eastern most part of the tenement. There is a hill near the Garden Bore which is the dangerous place closer to 6 mile pool.
People use to go missing from around that area, we do not go to that hill since it is much too dangerous.
There are some hills to the South West of Garden Well. The dangerous place is inward on the tenement from the bore. We have a dreaming story which says that once a dog was out hunting down a kangaroo. The dog caught and killed the kangaroo and then a devil came out of the hill and took the kangaroo back to his cave. You cannot see the cave from one side but we do not go around the other side because it is too dangerous and that is where the cave of the devil is.
Under our traditional law this place where the devil lives is a very bad and dangerous place. There will be trouble for the whole community if someone goes out to the bad place. The rangers are responsible for keeping people away from these areas however it is the older people’s responsibility to keep people away and tell others the story.
If a proper person goes out to these places with the explorer then it will be alright because the Mangala person can introduce the explorer and his workers to the country.
If anyone from our community goes out to the exploration license area they have to talk to the country, that means they have to yell out aloud and introduce themself to the place if they do not announce themself to the country they will get choked which means they will not be able to breathe when they sleep and will feel like someone is choking them.
My niece’ mother went out to the area of the exploration license area to help map our native title claim, because she did not speak to the country she woke up in the middle of the night and felt someone choking her and she saw an old woman beside her.
In other places you have to rub mud on you or soak yourself in water to let the country know you are there, however, if it is dry land like in the exploration license area you can use words to let the country know.
In our culture and our traditional knowledge we know anyone who goes out to the exploration license area should let the country ‘know you’ in the way that I have described.
We do not want explorers going out to these special places without talking to us first, these places are not marked for an explorer to see but we know where they are. When we have an agreement with an explorer we can tell them where special places are.
The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.
MAJOR DISTURBANCE TO LAND OR WATER
I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
Their exploration could damage water or country or could be in our special places. The respectful way to come and explore in this country is to talk to us so we can identify for the explorer special places and our knowledge of this place.
Under our law anyone who is not Nyikina Mangala needs to ask permission before they can go out on to our country.
My niece Andrea was with me when I made this statement.

ANNEXURE B

AFFIDAVIT OF MS BARBRA FRIEDEWALD

I, Barbra Friedewald, Kimberley Land Council Future Acts Legal Officer, of Broome, in the State of Western Australia, affirm:

My name is Barbra Friedewald, I was born in 1972 and I am a Legal Officer with the Kimberley Land Council.
On 9 April I completed an internet search on Myroodah Station and location information about the station on the world wide web marked attachment “a”.
I made telephone inquiries to Indigenous Land Corporation (ILC) and spoke to Business Enterprise Officer for Western Australia Mr Richard Brake.
Mr Richard Brake explained Myroodah Station was ear marked by ILC to eventually vest in the Nyikina Mangala people who resided in Looma Community.
Mr Richard Brake provided me with the telephone contact number for the current Manager and his family at Myroodah Station.
I spoke to Pamela Allsop from Myroodah Station on 9 April 2013 who identified that every weekend of the dry season at least 3 vehicles from Looma station would go through Myroodah which would mean materially they go out onto the exploration license area.
Pamela Allsop identified the vehicles she referred to always had more than one person inside.
Pamela Allsop identified there were vehicles from Looma which would go out and would not check in at the station on their way through and that she had no way to estimate the true number of Looma community people who went out hunting in the exploration license area but the absolute minimum would be three cars every weekend mentioned above.