David Stock & others on behalf of Nyiyaparli/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd - [2011] NNTTA 9

NATIONAL NATIVE TITLE TRIBUNAL

David Stock & others on behalf of Nyiyaparli/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd, [2011] NNTTA 9 (8 February 2010)

Application No: WO10/663

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

David Stock & Others on behalf of Nyiyaparli – (WC05/6) (Applicant, native title party)

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The State of Western Australia (Government party)

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Cliffs Asia Pacific Iron Ore Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                 Helen Shurven, Member
Place:   Perth
Date:   8 February 2011

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 148, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)

Cases: Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner

Representatives of the
native title party: Ms Samantha Rosenfeld, Pilbara Native Title Service

Representatives of the Mr Domnhall McCloskey, State Solicitor’s Office
Government party: Claire Malavaux, Department of Mines and Petroleum

Representative of the
grantee party: Mr Peter Brammall, Cliffs Natural Resources

REASONS FOR DETERMINATION

On 13 January 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/2192 (‘the proposed licence’) to Cliffs Asia Pacific Iron Ore Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence E52/2192 comprises an area of 47.25 square kilometres located 13 kilometres south west of Newman in the Shires of Meekatharra and East Pilbara. It is 100 per cent within the registered native title claim of the Nyiyaparli People (WC05/6 – registered from 29 November 2005). No other native title claims overlap the proposed licence area.
On 12 May 2010, David Stock & Others on behalf of Nyiyaparli (WC05/6) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal (WO10/663).
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the Act’s s 29 notification date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions made by the Hon C J Sumner on 31 May 2010 included that the Tribunal be provided with: contentions of the State by 30 August 2010; contentions of the native title party by 6 September 2010; and contentions of the grantee party by 13 September 2010.
The Government party lodged its statement of contentions on 18 August 2010.
Following a contentious request by the native title party for directions to be amended on 3 September 2010 to varying dates, Hon C J Sumner approved the requested amendments on 6 September 2010, with all parties advised that further extension requests would only be approved if significant progress toward reaching an agreement was evident. A springing order was imposed on the native title party for compliance on or before 4 October 2010, with non compliance attracting dismissal of the expedited procedure objection application WO10/663, pursuant to s 148(b) of the Act. The contentions of the native title party were lodged on 4 October 2010, and a signed and witnessed statement of David Stock in support of the native title party contentions was lodged on 28 October 2010. A map referred to in that statement was lodged on 29 October 2010. While the signed statement and map were provided outside of the directions hearing dates, copies were provided to all parties and there were no objections to the evidence being accepted.
I note that the evidence provided by both the grantee party and the native title party is in the form of a signed statement only, with the grantee party statement forming their statement of contentions, and the native title party statement witnessed by the native title party legal representative. The Tribunal is not bound by the rules of evidence (s 109(3) of the Act). In the recent case of Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that it is self evident that evidence relating to the matters in s 237 are essential to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. Applying these principles to the present case, I am satisfied that the statements are admissible, accept them on their face, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)).
On 8 October 2010, the grantee party requested an extension of time to lodge their contentions. The extension was granted on a non contentious basis, and the document was subsequently lodged on 19 October 2010.
On 4 November 2010, the parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a hearing) and I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 10 December 2010, I was appointed by Hon C J Sumner, Deputy President, as the Member for the purposes of conducting the inquiry.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

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

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

Evidence in relation to the proposed act

Government party documents include a tengraph plan with topographical detail, tenement boundaries and historical land tenure, a copy of the stamped application for mining tenement, a tengraph Quick Appraisal, a draft tenement endorsement and conditions extract, and a statutory declaration from the technical assistant for the grantee party declaring that the State’s Regional Standard Heritage Agreement (‘RSHA’) was sent to the claimant group of the native title party on 11 December 2009.
A map prepared by the Tribunal’s Geospatial services on 15 October 2010 shows that there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the grantee party, the Government party and the native title party reveal that part of the boundary to one registered site under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) is within the proposed licence area. The site itself is outside of the proposed licence area. That site is Whaleback South (site ID 17391).
Government party documents indicate the following current licences and leases overlap E52/2192:
·Pastoral Lease 3114/992 (Ethel Creek) by 83.1 per cent;
·Pastoral Lease 3114/1125 (Prairie Downs) by 16.9 per cent;
·Tenement E52/170- BHP Coal Pty Ltd by 1.1 per cent; and
·Tenement E52/1483- Giralia Resources NL by 1.1 per cent.
According to the list of tenements in the Quick Appraisal, there has been previous mineral exploration and/or mining activity in the area of the proposed licence since 1958. There is current exploration activity and pending mining activity in areas overlapping the proposed licence site by 1.1 per cent to 100 per cent. There are also three minor roads, seven tracks and three fence lines. Ten dead tenements overlap the proposed licence site. Of these, three were surrendered, six were withdrawn, and one was cancelled.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] - Conditions 1-4). According to documents provided by the grantee and Government party, these four conditions, and the following two other conditions, will regulate the exploration activities on the current proposed licence site:
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 equipment 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.

The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1927 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.
3.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
4.The grant of this licence does not include the land the subject of prior Exploration Licence 52/1483. If the prior licence expires, is surrendered or forfeited the land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia.”

Evidence provided by the native title party

The native title party has provided the following documents:
·a statement of contentions of the Nyiyaparli People dated 4 October 2010;
·a statement of Mr David Stock dated 28 October 2010, the signing of which was witnessed by Ms Maimbo Chilala, solicitor for the native title party. Mr Stock states he is a member of the native title party; and
·a copy of the map referred to in the statement of Mr David Stock, dated 30 September 2010, from the Aboriginal Heritage Inquiry System, showing a Register of Aboriginal Sites.
The statement of Mr Stock is as follows:
1.My name is David Stock and I live at 12A Becker Court, South Hedland, Western Australia.
2.I am a member of the Applicant, and have been involved with the Nyiyaparli native title determination application WAD 6280 of 1998 (“the Nyiyaparli claim”) from the beginning.
3.My traditional name is Yantikutji. My skin group is Milangka. I was born out bush at the Roy Hill station in Nyiyaparli country. I do not know the exact date when I was born but I was old enough to ride a horse during the Japanese War.
4.I am an Elder and senior law man for the Nyiyaparli people and know the Nyiyaparli traditional laws and customs. I learnt these from my parents and other Nyiyaparli elders. I went through the law during the Japanese War at Marillana in the Nyiyaparli claim area. I later went through a higher stage of the law at Jigalong in Nyiyaparli country. I speak the Nyiyaparli language well.
5.I have been involved in heritage protection in Nyiyaparli country and I am aware of what is involved in exploration. I often go out on heritage surveys and I have seen the tracks and drill holes that are used when companies do exploration. I have seen the damage that some companies have done to our country and sacred sites while exploring.
6.Maimbo Chilala, one of the Nyiyaparli claim lawyers has shown me a map of the exploration tenement application E52/2192. A copy of this map is attached to this statement as “DS 1.”
7.That map shows me that the mining tenement covers what some people call a “mythological site”- we say it is part of our Jukutarni- Dreamtime stories. Story been put in the country long time ago but still practiced today. We learned this story from our old people, our parents and grandparents and they learned it from their old people; now we got to pass this on to our young people so they can teach their young people. That is how it is passed on.
8.That mining tenement is close to Mt Whaleback (Pukurlkurla). And it covers the Southern Part of it. Mt Whaleback was part of a Dreamtime story coming all the way from Mankarlyirrkura, but it was mined back when we didn’t have a say about those things you know. So the hill was just dug up without anyone talking to us. That is why we want the mining companies and exploration companies to come and talk to us before they go about our country. We want to protect our sites.
9.That Dreaming track still there over Mt Whaleback and that surrounding Area. We still sing the song at Law time. We go there during law time for men’s business when we put the boys through. There are many sacred sites within the area of the tenement and the area around the tenement. Many of the sites are for secret men’s business only. Only the men who have been through the law can go there. It doesn’t matter if you are blackfella or whitefella.
10.If man who has not been through the law or a woman goes to the sacred sites, something bad can happen to them. This is a very dangerous place. The spirit would punish them and anything could happen, they could go mad, get sick or even die. That is why the companies gotta talk to us, so that we can tell them where not to go.
11.It does not matter if the person is just walking through, even if they don’t dig around, the spirit knows if you not supposed to be there. Unless you have been through the law, you should not be there.
12.As the traditional owners for the country, we gotta look after it. We have a responsibility to take care of the country and protect it. So if someone goes where they are not supposed to, they make trouble for Nyiyaparli.
13.For example when they started that Mt Whaleback mine, they did not talk to us Nyiyaparli. They just went there with a whole mob and started mining. After that, many Nyiyaparli people died. Whole mob of us even now there are no proper Nyiyaparli in Newman. That is why we have to show the companies where people can and cannot go. We gotta protect the country.
14.When Nyiyaparli visit the country we gotta talk to it. We say “I am from this place, I belong here.” We say this in our language because the country can smell a stranger. It knows if you are not from there and you can get into trouble then.
15.This area covered by the tenement also got to do with the hill kangaroo (wijunu). I can’t say much more about that Dreaming track because it is mainly for men. I am frightened to say too much because it is secret stuff.
16.As a senior lawman I got to pass on the Nyiyaparli law and customs to the young people, like my old people did. It’s getting harder and harder to do that. Got nothing to show to at Mt Whaleback, need to wear a hard hat and have a flashing light or thing like that to get in. That’s why we want to have a say about new exploration applications in significant areas, like E52/2192, lawyers call it “Right to Negotiate.” We want to make sure there is something left to show our young people and that the companies respect us as the traditional owners and work with us good way so we can speak for our country and protect our sites.

Evidence provided by the grantee party

The grantee party has provided the following documents:
· A statement of contentions dated 19 October 2010.

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of E52/2192 and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The native title party contentions state that despite being impacted on by mining and pastoral industries, the native title party and other Nyiyaparli people visit the area of Newman ‘including the areas within the Licence’ (at 11). It is not contested that some mining, exploration and possibly pastoral activity has occurred in the area of E52/2192 and vicinity over the years up to and including the present day. I am satisfied that these activities have interfered with the native title party’s traditional community or social activities.
The native title party has provided general evidence of the type of community and social activities that are currently conducted on or near the area of E52/2192 by the native title party. The native title party contentions state that ‘there is a real chance that the grant of the licence will result in direct interference with the carrying on of community or social activities by the Native Title Party including camping, hunting, collecting bush food and bush medicine, and sharing stories with each other about country’ (at 9). Mr Stock’s statement does not particularise these activities in any detail – he focuses on respect and protection of the country and a Dreaming track, as well as teaching the children about Dreamtime stories. The native title party contentions state that the licence is ‘proximate to a significant Dreaming track...important to the continuation of Nyiyaparli law and custom’ (at 19). However, there is no reference to the precise location of sites within the proposed licence site, the frequency with which those activities might occur, or the extent to which they occur on the proposed licence site.
According to the Tribunal Geospatial Services map, there is one Aboriginal community approximately 10 km outside of the north east boundary of the proposed licence area (Pampajinya). However, no specific evidence has been provided by the native title party on whether the grant of the proposed licence will affect the traditional community or social activities of that community specifically.
According to a report attached to the grantee party contentions, and created under the DIA’s Aboriginal Heritage System, dated 15 October 2010, the Whaleback South site (ID17391) is situated approximately 1 kilometre from the northern boundary of the proposed licence site. It is a closed site restricted to male access only. The site itself is outside of the proposed licence area, with the exclusion zone to the site having an area of overlap with the proposed licence area of approximately 4.0 kilometres running along the northern boundary of the proposed licence site, and approximately 1 km into the proposed licence site. There are other sites within 5 kilometres of the proposed licence site E52/2192, but none other than the Whaleback South site boundary overlaps.
In his statement, Mr Stock mainly refers to activities on and around the site of Mount Whaleback which is outside of the proposed licence site.
In Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, (‘Cooke’) native title party evidence stated that there were law grounds in use for men’s ceremonies in and around a proposed licence area. The Tribunal accepted there was some contemporary and ongoing activity and that these activities occurred over a much wider area than the proposed licence site. The evidence was found not to be specific enough to support a finding of sustained community or social activities on that licence site (at [22]-[23]).
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure.
The grantee party contends that there are no Aboriginal communities situated on, or in the vicinity of, the proposed licence site. The grantee party contends that the grant of the proposed licence is not likely to interfere with areas or sites which are of particular significance to the native title party because: the AHA applies to the land and provides for protection; the grantee party employs a Senior Indigenous Advisor to manage heritage matters; and the grantee party has executed and provided the native title party with the RSHA (although this has not yet been the subject of agreement between the grantee party and native title party).
The Government party contends that the Tribunal is bound by the decision of Nicholson J that, given the protective effect of sections of the AHA, the chance of interference is remote (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [75]-[77], (‘Little’)).
The area has been subject to previous exploration activities by other parties. The grantee party contentions state that they will use every effort to access the proposed tenement using existing tracks, and where that is not possible, will seek the route with least disturbance to the land and vegetation. The contentions also state that the grantee party will conduct flora and heritage surveys before seeking consent pursuant to relevant legislation.
The grantee party also states they have comprehensive procedures for conducting activities including rehabilitation of disturbed areas and constant audits/monitoring of its procedures and activities.
The native title party contentions state that the grantee party has not provided any indication of its intention to use the proposed licence other than to the fullest extent possible. The native title party also submits that access by the native title party to places within the licence will be restricted according to the timing and location of exploration activities, and that visits are necessary to allow the native title party to care for and monitor important places in their country. In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, there was no evidence from the grantee party as to its site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. In the present matter, there are statements in the grantee party contentions as to its willingness to consult with the native title party to ensure their views are taken into account if there is exploration in the area (at [5] & [7]).
The native title party contentions state that even though the licence area is small compared with the native title party claim area, there are certain activities that are carried out within the licence area including ceremonial practices, ‘because of the “particularly special” country within the Licence.’ Because of the ‘particularly significant places within the Licence...these places are preferred for community and social activities’ (at 12). However, more particular evidence of these community and social activities, and the geography of where they are conducted, is not outlined in the evidence presented by the native title party. The size of E52/2192 is 47.25 square kilometres and the area of the Nyiyaparli claim is 36, 684.026 square kilometres. Consistent with previous Tribunal decisions such as Cooke, I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows the boundary of one registered site is within E52/2192, but this does not mean there may not be other sites or areas of particular significance to the native title party over E52/2192 or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA: (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (‘Champion’).
The native title party contentions state that the proposed licence area is located south of Mount Whaleback and ‘there are significant places all over Mt Whaleback’ (at 47), and Mount Whaleback is ‘part of a Dreaming track linked to male initiation and other ceremonial practices’ (at 44). ‘There are significant sites within E52/2192 that are restricted to men’ and ‘only limited information can be provided to persons who are not members of the Native Title Party and who are not initiated men.’ I accept this. The native title party contends that the area around Mount Whaleback is a place where the native title party’s ancestors and contemporaries were born, lived and were buried, and where, under the native title party’s traditional laws and customs, their spirits continue to reside (at 45). They also state that the RSHA ‘does not provide the level of protection required for this area of sites of particular significance’ (at 23). No detail of the impact, or how the RSHA provides inadequate protection is provided. The focus is on Mount Whaleback and surrounds – for example ‘The Native Title party submits that only such consultation and discussion can ensure that Mt Whaleback is not interfered with as a result of the grant of the licence’ (at 55). The Tribunal’s geospatial services map shows Mt Whaleback to be approximately 8 kilometres from the northern boundary of the proposed licence site.
Based on the available evidence and statements made by the grantee party, I am satisfied that the grantee party will consult and discuss with the native title party in relation to any exploration activity conducted on the proposed licence site.
I accept that the grantee party shows a willingness to consult with the native title party and to identify other sites of significance by heritage surveys. The grantee party has stated that they believe their exploration activities will be directed only to the southern portion of the proposed licence site which is approximately five kilometres away from the southern boundary of the Whaleback South site. A deed poll to that effect would have had more weight, but I am prepared to accept the grantee party’s signed statement of contentions to that effect, given that it is very clear where the mythological site and its boundary is located, and given it is very clear the onus which is placed on the grantee party by the AHA and by the Government’s Conditions and Endorsements.
The native title party contentions and Mr Stock’s statement allege that mining and pastoral activities have been undertaken within or near the licence area which may have destroyed Aboriginal sites or caused distress to the native title party in that area. There is no evidence to suggest the grantee party undertook any of those past activities. Based on the DIA and native title party evidence, I can make a positive finding that a boundary to a site of particular significance to the native title party exists within the proposed licence area. I can see no reason why the protective regimes under the AHA and the presumption of regularity should not be sufficient to ensure that there is unlikely to be interference with this, or any other sites of particular significance which may exist near or within the proposed licence area.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. They have stated they have executed and forwarded a copy of the RSHA to the native title party’s representatives, which, while not subject to agreement between the parties, reveals an awareness of the grantee obligations in this respect. The grantee party has stated that it understands its obligations under the AHA and will comply with it. I have no difficulty in accepting that the grantee party intends to act lawfully and in accordance with the AHA.
I find that there is not likely to be a real risk of interference with any sites of particular significance to the native title party in the proposed licence area.

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

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion [74]-[79] and the cases cited therein).
In this matter, the proposed licence is 13 kilometres south west of the town of Newman. No contention is made by the native title party in relation to s 237(c) and there is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely. The area of E52/2192 has been the subject of past and present exploration, mining and/or pastoral activities. The presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities. In addition, the Government party contentions at paragraph 5(e) indicate they will place the following condition on the grant of the proposed licence area:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Nyiyaparli, the applicants in Federal Court application no. WAD6280 of 1998 (WC05/6), such request being sent by pre-paid post to reach the Licensee’s address, Cliffs Natural Resources, Level 11, The Quadrant Bldg, 1 William Street, Perth WA 6000 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Nyiyaparli the Regional Standard Heritage Agreeement endorsed by peak industry groups and Pilbara Native Title Service.
It is also relevant that the grantee party has stated that they believe their exploration activities will be directed only to the southern portion of the proposed licensed site, and thus some distance away from the southern boundary of the recorded mythological site.
I find that there is not likely to be major disturbance to land or waters in this matter.

Determination

The determination of the Tribunal is that the grant of exploration licence E52/2192 to Cliffs Asia Pacific Iron Ore Pty Ltd (grantee party) is an act attracting the expedited procedure.

Helen Shurven
Member

8 February 2011