Dennis Forrest and Others on behalf of the Nangaanya-Ku Native Title Claim Group v Trent William Potts/ Stephen William Potts/ Joan Valma Potts & Another - [2020] NNTTA 76

NATIONAL NATIVE TITLE TRIBUNAL

Dennis Forrest and Others on behalf of the Nangaanya-Ku Native Title Claim Group v Trent William Potts/ Stephen William Potts/ Joan Valma Potts & Another [2020] NNTTA 76 (3 December 2020)

Application No:

WO2019/1166, WO2019/1167

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

- and -

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

Dennis Forrest and Others on behalf of the Nangaanya-Ku Native Title Claim Group (WC2018/019)

(native title party)

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Trent William Potts/ Stephen William Potts/ Joan Valma Potts

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	3 December 2020

Catchwords:	Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 17 Mining Act 1978 (WA) ss 63, 65, 66, 115A Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 25, 29, 30A, 31, 32, 237
Cases:	Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703 Peregrine Resources Pty Ltd v Ashwin [2014] NNTTA 59
Representatives of the native title party:	Felicity Noonan and Malcolm O’Dell, Central Desert Native Title Services

Representative of the grantee party:

Ken Green, Green Legal

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office
Michael McMahon, Department of Mines, Industry Regulation & Safety

REASONS FOR DETERMINATION

INTRODUCTION

On 11 October 2018, Dennis Forrest and others, on behalf of the Nangaanya-Ku Native Title Claim Group (the “Native Title Party”) filed an application for a native title determination pursuant to the Native Title Act 1993 (Cth) (the “Native TitleAct”). The application was accepted for registration on 9 November 2018. The land and waters over which the Native Title Party claims to hold native title rights and interests (the “claim area”) lie north-east of Kalgoorlie.
On 4 July 2019, Trent William Potts, Stephen William Potts and Joan William Potts (the “Proposed Grantees”) applied to the Department of Mines, Industry Regulation and Safety of the Government of Western Australia (the “State”) for the grant of exploration licences E38/3408 and E38/3409 (the “proposed tenements”) pursuant to the Mining Act 1978 (WA) (the “Mining Act”). On 28 August 2019, the State gave notice (the “notice”) pursuant to s 29(1) of the Native Title Act of its intention to grant (the “proposed grants”) the two proposed tenements. The proposed grants are future acts of the kind described in s 25 of the Native Title Act, and so are subject to Subdiv P of Pt 3 Div 2 of the Native Title Act (“subdiv P”).

THE EXPEDITED PROCEDURE STATEMENT

Subsection 29(7) of the Native Title Act provides as follows:
The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.
The notice contained a statement pursuant to that subsection (the “expedited procedure statement”).
Section 237 provides:
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.
For present purposes, only s 237(b) is relevant.
Section 32 of the Native Title Act provides:
(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
(2)      If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
(3)      A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
(4)      If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
(5)      If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
(6)      At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
(7)      At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
Sections 30A and 31 provide:
30A     Negotiation parties
Each of the following is a negotiation party:
(a)the Government party;
(b)any native title party;
(c)any grantee party.
31      Normal Negotiation Procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:
(i)the doing of the act; or
(ii)the doing of the act subject to conditions to be complied with by any of the parties.
Note:        The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(4)the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:
(a)providing that assistance; or
(b)establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);
without the prior consent of the person who provided the NNTT with the information.
On 20 December 2019 the Native Title Party lodged an objection pursuant to s 32(3). Had the Native Title Party not done so, the State could have made the proposed grants pursuant to s 32(2), without there being good faith negotiation pursuant to s 31. However, as an objection has been lodged, I must determine whether the proposed grants are acts to which the expedited procedure attaches.
It seems that following lodgement of the objection, the Tribunal staff drew the Native Title Party’s attention to an irregularity in it. An amended objection (the “objection”), was filed in January 2020. I do not understand the Proposed Grantees to take any issue concerning such irregularity.

PROPOSED TENEMENTS

Proposed Tenement E38/3408

Proposed tenement E38/3408 is rectangular in shape. The longer sides of the tenement run north-south and are approximately 13 km in length. The shorter sides run east-west and are approximately 3.2 km in length. The proposed tenement lies wholly within the claim area. It is unallocated Crown land and also a groundwater area for the Goldfields. Nine previous exploration licences have covered part or all of the proposed tenement. Two of them have overlapped it to the extent of more than 70%. At one stage, two tenements, together, covered the whole of the proposed tenement. There is no Aboriginal community within its borders. There is no Registered Aboriginal Site (“RAS”) or Other Heritage Place (“OHP”) registered under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”).
The State has indicated that it will impose various endorsements and conditions upon the proposed grant, as set out in a document headed “Draft Tenement Endorsement and Conditions Extract” (the “draft grant”). The State has also indicated that it will impose the following condition (the “RSHA condition”) on each of the proposed grants:
In respect of the area covered by the licence the licensee, if so requested in writing by the [Native Title Party], such request being sent by pre-paid post to reach the [Grantee Party’s] or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the [Native Title Party] any Regional Standard Heritage Agreement ("RSHA") nominated by the [Native Title Party], the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the [Mining Act] under the heading "Regional Standard Heritage Agreement."
At a later stage, I shall discuss the significance of an RSHA.
In its application for proposed tenement E38/3408 the Proposed Grantees outlined their intended method of exploration as follows:
The area being applied for is located East of Laverton in an area considered prospective for gold and base metal mineralisation. The area is in the Mount Margaret Mineral Field and is covered by the Nullagine 1:250,000 map sheet. The application area is considered to be prospective for gold occurrences. Proposed exploration of the area will include:
·an open file review and compilation of historic exploration activities
·structural interpretation of airborne magnetic and gravity data
·field reconnaissance and geological mapping and
·soil sampling of prospective areas
The proposed work programme is as follows:
Goals – Exploration will be undertaken with the aim of identifying economic levels of mineralisation within the licence area.
Objectives & Activities – Exploration of the licence area will continue with a review of previous exploration completed on the licence area. This will include reference to materials available on WAMEX and in GSWA geology reports on the area. Any historic exploration completed and available on open file such as soil geochemistry and drilling information will be added to a database designed for the project. A structural interpretation of available government airborne magnetics data and gravity data will be completed to identify areas of structural complexity and to assist with mapping ultramafic lithologies and fault zones. Field mapping of the area will be completed to gain firsthand knowledge of the regolith and rock units present. It is anticipated that auger soil sampling will be a cost effective first pass exploration technique for identification of targets in the area. Any targets identified by soil sampling, review of historic data and structural interpretation would likely be tested by either RAB drilling or Aircore drilling in future programs.
The Proposed Grantees estimate that they will spend a total of $25,000 within the first year of work. Activities within the first year will include:
Open file review of historic exploration activities
Structural interpretation of airborne magnetics
Target & map generation of project
Native Title Agreement Costs
Field mapping & reconnaissance & soil sampling
(one week in the field – vehicle, fuel, food, accommodation, assay costs)
Administration & Overheads

Proposed Tenement E38/3409

Proposed tenement E38/3409 is irregular in shape in that its northern boundary is “stepped”. It lies almost 24 km south of proposed tenement E38/3408. It contains 105.123 hectares and lies entirely within the claim area. It is unallocated Crown land and also a groundwater area for the Goldfields. Ten previous exploration licences have covered part or all of the proposed tenement. One of them overlapped it to the extent of 60%. There are no Aboriginal communities within the proposed tenement. Nor is there any RAS or OHP registered under the AH Act. As with Tenement E38/3408, the State has indicated notice of its intention to impose various endorsements and conditions upon the proposed grants. It also intends to impose an RSHA condition. The proposed method of exploration and the proposed goals, objectives and activities are similar to those for tenement E38/3408.
The Proposed Grantees estimate that they will spend a total of $40,000 on proposed tenement E38/3409, within the first year of work, including the following activities:
Open file review of historic exploration activities
Structural interpretation of airborne magnetics
Target & map generation of project
Native Title Agreement Costs
Field mapping & reconnaissance & soil sampling
(10 days in the field – vehicle, fuel, food, accommodation, assay costs)
Administration & Overheads

RIGHTS TO BE CONFERRED BY THE PROPOSED GRANTS

The proposed grants will each be for a period of five years. The rights conferred by an exploration licence as prescribed by s 66 of the Mining Act are:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the [Rights in Water and Irrigation Act1914 (WA)], or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
The proposed endorsements and conditions will limit some of these rights. Further, s 63 of the Mining Act prohibits the use of “ground disturbing equipment”, unless the licensee has lodged an appropriate programme of works, which programme has been approved by the Minister. Condition 3 in each proposed grant will contain a similar limitation upon the use of such equipment.
Section 66(c) of the Mining Act, and reg 20 of the Mining Regulations 1981 (WA) (the “regulations”) authorize the taking of up to 1000 tonnes of earth, soil, rock, stone, fluid or mineral-bearing substances. Such extraction would, I infer, probably involve ground-breaking equipment. Hence the Proposed Grantees could only take that material if they had received approval to use such equipment.

NATIVE TITLE RIGHTS AND INTERESTS

The Native Title Party describes its native title claim as follows:
12.     In this SCHEDULE E, the following words and phrases have the following meanings:
exclusive rights means the exclusive rights of possession, occupation, use and enjoyment of land and waters to the exclusion of all others; and
non-exclusive rights means:
(a)the right to access, remain in and use that area;
(b)the right to access, take and use the resources of that area for any purpose;
(c)the right to engage in spiritual and cultural activities on that area; and
(d)the right to maintain and protect places and objects of significance on that area,
and does not confer possession, occupation, use and enjoyment of the lands and waters covered by the application to the exclusion of all others.
13.     In the lands and waters covered by the application:
(a)where native title rights and interests are not partially extinguished, the native title rights and interests claimed are exclusive rights; and
(b)in all other areas, the native title rights and interests claimed are non-exclusive rights.
14.     Both the exclusive rights and the non-exclusive rights are:
(a)exercisable in accordance with the traditional laws and customs of the native title claim group; and
(b)subject to the valid laws of the State of Western Australia and the Commonwealth of Australia, including the common law.

NATURE OF THE OBJECTION

The Native Title Party’s case concerning s 237(b), is set out at para 7(b) of the objection as follows:
…
(i) The [Native Title Party has] not been provided with sufficient information from the [State] to enable identification of areas or sites of particular significance that are likely to be interfered with by the [proposed grants], pursuant to section 237 of the [Native Title Act]. Specifically, the [State] has not identified the access routes to be used by the [Proposed Grantee] relative to the proposed [tenements].
(ii)    Preliminary research nevertheless shows that Tjukurrpa (Dreaming tracks) pass through areas in the vicinity of [the land subject to the proposed tenements]. Sites and areas associated with such Tjukurrpa tracks are of particular significance to the [native title holders].
(iii) The [proposed grants are] likely to impact and interfere with sites of particular significance as follows:
(A)   the [Proposed Grantee] may inadvertently interfere with sites or areas of particular significance by not knowing of their existence;
(B)   permitted land disturbing activities, including the use of mechanised equipment for the purpose of drilling for and extracting ore, may result in the destruction of sites and areas of particular significance, with consequent damage to the [native title holders’] spiritual understanding and comprehensions; and
(C)   the relevant Minister may permit the interference with sites or areas of particular significant if it is in the public interest; and
(iv)   The [native title holders] are part of the larger social entity known as the Western Desert [c]ultural [b]loc. They have responsibility for sites and areas of the Tjukurrpa that have social and cultural relevance beyond the [claim area]. Any damage or disturbance to sites or areas of the Tjurkurrpa would have repercussions for both the [native title holders] and the integrity of the wider Aboriginal society of which they form part.
…

MR MURRAY’S EVIDENCE

Mr Harvey Murray, (also known as ‘HM’), is a Yilka native title holder, a Manta Rirrtinya native title holder and a member of the Native Title Party. Mr Murray was born in Leonora Hospital. When he was about four months old, he was taken to live at Cosmo Newberry, north of the claim area. He has lived at other places such as Laverton, but now again resides in Cosmo Newberry, so that he can, “care for country and be on my ngurra, my home”. Mr Murray was shown an A3 size map of this area by a staff member of Central Desert Native Title Services Ltd (“Central Desert”), and has, “seen where the company wants to look around”. He understands the locations of the proposed tenements and, “knows there are tjukurrpa for those places”. Mr Murray has attached to his affidavit, a map of the proposed tenements.
Mr Murray says that, “[in] our culture a person who knows country and looks after it, and who is descended from a mother or grandmother or father or grandfather who was born here, is a traditional owner who can speak for country.” Mr Murray says that, “my ngurra comes to me through my mother and her mother Marnupa”. He also claims country through his father and his father’s mother, Yampi. His ngurra in the claim area, “was Yampi’s country because she was born here, and as a little girl she was told it was her country.”
Mr Murray is not a wati, but he “respects the law”. He learnt about the tjukurrpa from his parents and other elders, who told him the stories all through his life, “when we went out on trips on country growing up.” Mr Murray believes the tjukurrpa stories and follows the rules of “our culture”. He looks after his country in every way that he can, including “cleaning out rockholes”. He passes on, “my country and my knowledge and respect for it to my children and grandchildren, just like it was handed down to me.” He is responsible for looking after country. Protecting sacred sites is also part of this responsibility. It is an important part of protecting, “our culture and law”.
The responsibility for sacred men’s places, “mostly lies with initiated men”. It is mainly their responsibility. However those places are also part of Mr Murray’s country, and traditional owners who are not wati still have responsibility for looking after country. The traditional owners have to make sure that other people do not go to secret places. They try to, “keep people away from those places.” Mr Murray says that if the traditional owners cannot do this, “people can get sick”.
Mr Murray says that there are some tjukurrpa which he cannot discuss. He does not know much about them because, “I have not been through the law”. He knows where it is “okay” for him to go on his country, and the places he needs to avoid because of the “men’s secret law” in those places. He can help those men in looking after such places, and still respect the rules concerning them. Mr Murray says that, “[if] we do not look after country, it will not feed us and look after us”. People could get sick if, “the right thing is not done for country”. I infer from these statements that Mr Murray is not an initiated man in connection with the claim area.
Mr Murray says that there are many breakaways with rockholes and water holes along the “edge” in the Nangaanya-Ku claim area where the country drops to the flat area. I understand the term “breakaways” to mean, “steep cliffs connecting the old and new plateaus formed by the collapse of a tabletop, mesa or the like.” See the Macquarie Dictionary (Online). One of these breakaways, “comes into the eastern side of [proposed tenement] E38/3408”. The extent to which the breakaway intrudes into proposed tenement is unclear. There is no specific suggestion of any rockhole or waterhole within the proposed tenement. Other evidence suggests that the breakaway does not extend into the proposed tenement. The rockholes in the breakaways are, “very important because they are a source of water out there in the desert where water is precious”. Mr Murray says that, when people lived, “out there on country”, they would use the rockholes to get water. “Quite a few” people still visit those places when they, “go out on country”. About four or five times a year, Mr Murray goes out there with his family to, “check on the rockholes”. He makes sure that they are clean so that there is, “good fresh water for people and animals to drink and use”. This is one of the things which he does in looking after his country. There is no evidence as to the locations of rockholes.
Mr Murray says that if the proposed grants are made, the rockholes could be damaged if, “people from the mining company got too close to them”. He says that if a company agrees to do heritage surveys before doing work, “out there”, it would, “help protect these areas”.
There are several men’s sites near the proposed tenements. Because he is not a wati, Mr Murray cannot talk much about those sites. He says that even if he were a wati, “it is not a story that can be shared with everyone”. It is the responsibility of initiated men to protect the sites and keep the story secret. Mr Murray knows that it is, “very important that people who are not initiated men do not go to these men’s sites”. He also knows that there are men’s sites and related tjukurrpa because he has been out on country with wati to do surveys. If women and uninitiated men from the mining company, went to the men’s sites they, “could get sick”, even if they went there by accident. These sites are also unidentified.
There is a “very large rockhole” located to the east of the tenements, “quite near E38/3409”. This is called “Papa Kutjarra Kutjarra Rockhole”. Mr Murray has seen dingoes using the rockhole as a den. The rockhole is a cultural site which was formed and created by the tjukurrpa.
When Mr Murray has been, “out on country to do surveys”, he has seen princess parrots, “just to the east of [proposed tenement] E38/3409”. These are endangered birds. Mr Murray says that, “we have a responsibility to look after animals and birds as part of our responsibility to look after country”. It is very important that, “we care for the rockholes and water holes, and keep the water clean and healthy so that there is water available for the animals, including these princess parrots.”
Under the heading “Interference”, Mr Murray says that:
·   As a traditional owner he has to look after country. If he does not do so, “then the country will not feed us.” It is also possible that people, “could get sick”. Mr Murray does not want this to happen to anyone, but says, “it might if we do not do the right thing”.
·   There are some places on, “my country where only initiated men can go”. These are places where there is men’s secret law. The rule in Mr Murray’s culture is that, “everyone else must keep away from those places”. Otherwise, “people can get in trouble for mucking around where they are not supposed to be.” Mr Murray says he, “cannot even talk too much about these places because that is not respectful in my culture”.
·   If the mining company is allowed to go out to this area without, “first checking the proposed areas with us and doing a heritage survey, they might accidentally damage the rockholes in the breakaways”. This could mean that there is not water for people who go out to look after country. It, “would also hurt the animals”, including the princess parrots. The animals rely on the water.
·   If mining company staff have not been shown where it is safe to go, and where it is not, they might accidentally interfere with the men’s sites near the proposed tenements, or otherwise disturb the tjukurrpa.
Mr Murray is not an initiated man. He makes it clear that he has only limited capacity to speak about areas or sites of particular significance in accordance with the Native Title Party’s traditions. Such capacity seems to be limited by both lack of knowledge, and a perceived obligation to refrain from discussing certain matters. One might reasonably expect that an initiated man, with a more comprehensive knowledge, would be better equipped to assist the Tribunal in its task. Where a witness’s knowledge is incomplete, it may be unwise to assume the correctness of such knowledge as he or she has. There will be a risk that it is only correct in some circumstances, or that it is subject to qualification. The witness may not be aware of such limitations. It is also possible that other evidence, were it given, would affect the Tribunal’s view of the evidence in question.

MR MRVELJ’S EVIDENCE

Mr Mladen Mrvelj is an anthropologist. He graduated in 2011 with a Master’s degree in Linguistics, and a Master’s degree in Ethnology and Cultural Anthropology, such degrees being conferred by the University of Zagreb. From 2012 until 2016, he was employed by Central Desert as an in-house anthropologist. He is currently employed as Operations Manager and Heritage manager at Yilka Talintji Aboriginal Corporation RNTBC, the registered native title body corporate for the Yilka and Sullivan/Edwards native title determination area. See Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 and Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703. Mr Mrvelj has been shown a map of the proposed tenements and notes that they are located entirely within the Nangaanya-Ku claim area.
In his position with Central Desert, Mr Mrvelj worked with people associated with various native title claims and determinations. In his capacity as an anthropologist, he has attended surveys and prepared anthropological reports. He has worked with the Yilka, Kiwirrkurra, Wiluna, Gingirana, Birriliburu, Ngururrpa, Spinifex and Tjiwarl Peoples, all of whom have had their respective native title claims determined. Mr Mrvelj notes that they, and their determination areas are located within the “Western Desert cultural bloc”.
As part of his work with Central Desert, Mr Mrvelj has been involved in numerous heritage surveys across the Western Desert region. More recently, in his current role, he has worked with the Yilka native title holders in their native title determination area. That area is located, “just north of the Nangaanya-Ku claim area where the [proposed tenements] are located.”
Prior to the filing of the Nangaanya-Ku’s native title claim, “an understanding was in place between the senior men from Tjuntjuntjara”, and the, “Yilka mob predominantly based in Cosmo Newberry”. Many of the senior Tjuntjuntjara men were, “traditionally seen to speak for the area south of Yilka.” The understanding was that, “the Yilka mob would assist the Tjuntjuntjara mob”, by undertaking heritage surveys in the areas south of Yilka. That area is now the Nangaanya-Ku claim area. This understanding was on condition that certain senior males and wati accompany the Yilka mob on such surveys. This evidence is a little confusing. It implies, without expressly asserting, that the Tjuntjuntjara mob comprises part of the Native Title Party.
Pursuant to the understanding, in November 2013, October 2015 and February 2017, Mr Mrvelj attended and completed heritage surveys, “in the same general areas where the [proposed] tenements are located”. The work programmes in relation to those surveys were, “directly adjacent to the north, northeast and east”, of the proposed tenements. I infer from this statement that the surveys did not relate to the proposed tenements. Mr Mrvelj attended the first two surveys in his capacity as an anthropologist, employed by Central Desert. On the third occasion, he attended as a consultant anthropologist, engaged by Central Desert. He was accompanied on all surveys by Mr Murray and Mr Smythe (now deceased). At various times, he was also accompanied by Mr Winter (deceased), Mr Elton Fraser, Mr T Westlake (deceased) and Mr Dudley Wongawol. Many of these people are wati, and all are accepted as “senior desert men” in the region.
There is no explanation as to why it should have been necessary for the Yilka to “assist” by undertaking heritage surveys. Nor is there any explanation as to the role which the Yilka performed, or that performed by the “accompanying” senior males and wati. Mr Mrvelj identifies six men who accompanied him on the surveys, at one time or another. Mr Smythe (now deceased) and Mr Murray participated in all three surveys. The other four men (two of whom are deceased) “attended at various times”. There is no evidence as to how many of the six are (or were) initiated men. Indeed, except for Mr Murray, it is not said that any of them are (or were) members of the Native Title Party, and therefore persons claiming to be traditional owners. One must also keep in mind that there was, in effect, no survey conducted in either of the proposed tenements.
Mr Mrvelj seems to treat the Native Title Party as part of the wider Western Desert cultural bloc. That is, no doubt, correct. However the question is the extent to which the Native Title Party shares the bloc’s culture. The Native Title Party is apparently a distinct group within that cultural bloc. Mr Mrvelj does not assert that the various groups comprising the bloc all share precisely the same traditional laws and customs. Presumably, the various groups which make up that cultural group are, in some ways, distinguishable, each from the others. Of course it is possible that they are distinguishable only by reference to the land over which each has a distinct claim. However that seems unlikely.
If it were the case that the Native Title Party’s traditional laws and customs are, for present purposes, the same as those found across the cultural bloc, Mr Mrvelj could simply have given evidence of the Native Title Party’s traditional laws and customs, without repeated references to the wider cultural bloc. That he has not done so suggests to me that references to the laws and customs of the Western Desert cultural bloc are simply that, and that such references suggest an assumption as to uniformity rather than knowledge of it.
Mr Mrvelj bases his current opinions on his knowledge and understanding of the tjukurrpa associated with the country where the proposed tenements are located, the surveys he has attended, and his broader knowledge and understanding of Aboriginal mythology, traditional ownership and contemporary cultural concerns in the Western Desert cultural bloc. All of the information in his affidavit, relating to the proposed tenements and their surrounds, is drawn from his research and time spent in, “those very locations, including [his] observations noted during the Surveys”. Having said all of that, it seems that Mr Mrvelj has never entered either of the proposed tenements.
At paras 16 and 17 of his affidavit, Mr Mrvelj explains the concept of tjukurrpa as follows:
16. The concept of tjukurrpa relates both to the spiritual and physical; the tjukurrpa stories explain the creation of country and embody the traditional laws and customs of the Western Desert. To members of the Western Desert cultural bloc, of which the Nangaanya-Ku native title claimants are, the tjukurrpa beings created various aspects and features of the landscape as they travelled through country.
17. Interference with the tjukurrpa dreaming tracks, including through the inappropriate access to, or damage or interference with, the places, areas or sites in which the tjukurrpa manifest, may have the effect of disturbing the travel of the tjukurrpa dreaming tracks, and can have a very real and significant impact on the wellbeing of the members of the Western Desert cultural bloc.
Mr Mrvelj gives evidence concerning tjukurrpa which were brought to his attention in the course of his work. See paras 18 to 31of his affidavit. As I have said, it is not always clear whether he is speaking of the Native Title Party or the wider Western Desert cultural bloc. In some cases, he makes it clear that he is discussing aspects of the Native Title Party’s culture which reflect that of the Western Desert cultural bloc. He says, for example, that in his experience, people of the Western Desert are very careful in sharing information about tjukurrpa, and about their obligations in protecting the country associated with them. He says that he, himself has observed hesitation on the part of survey participants, in approaching certain areas and speaking openly about them. He considers that there are sites associated with other significant tjukurrpa in the area which have not been disclosed to him. He also observes that during the surveys the participants, when in the vicinity of the proposed tenements, were reluctant to share the names, or any details of the tjukurrpa in any communications, “other than to broadly inform people of locations which should not be accessed by men or women as applicable”. However it is not clear that all of these people were members of the Native Title claim group.
Mr Mrvelj gives details of different tjukurrpa, the first being the “Seven Sisters” tjukurrpa. At para 22, he says that he “understands” that the Seven Sisters Dreaming is a tjukurrpa which travels through the area of the proposed tenements. It is a women’s dreaming story, and so he does not know much about it. He says that it is extremely important in a local and regional context and is known, at least in vague terms, to those across the communities of the Western Desert. At para 23, he asserts that it traverses many other areas of the desert, “possibly including the area of the [proposed tenements]”. Hence it is not clear that the tjukurrpa travels through the proposed tenements.
Mr Mrvelj says that there are men’s sites in close proximity to both proposed tenements. He says that in the course of the surveys, the wati pointed out two sites of significance, “in the area but did not disclose the names of the sites”. Without offering any explanation or justification, Mr Mrvelj asserts that, “I understand that these sites are extremely sacred and accordingly I cannot talk about these sites in this affidavit, as it would be entirely culturally inappropriate”. These men’s sites are apparently not within the proposed tenements. There is no detail as to why they are said to be sacred. Mr Mrvelj may well believe that it is culturally inappropriate to discuss certain matters. However the failure to provide such evidence does not, for present purposes, assist the Tribunal.
At paras 26-31, Mr Mrvelj discusses the breakaways. He says that there are breakaway formations to the east of proposed tenement E38/3408, and that these “hillside landforms” are important to the people as they provide, “a natural boundary to search for people on country”. I understand that these breakaways are located to the east of proposed tenement E38/3408, and not within it. I infer that the reference to searching for people on country means that the breakaways form identifiable landmarks. It is said that there is, “likely, a rare amount of rockholes along the breakaways, which provide an important above ground water source”. The term, “a rare amount of rockholes”, might suggest either that there are very few of them, or that there are more in this area than in some wider area. It is difficult to treat this evidence as doing any more than raising the possibility that there are such rockholes. It is said that there are deep caves in the breakaways. Whilst one might accept that possibility, there is no real evidence of their locations. Mr Mrvelj merely asserts that the caves are associated with “important men’s business”, or, “important women’s business”. He says nothing about the source of his “belief” that they are birthing caves. Even if it be accepted that the caves are associated with birthing, there is no evidence placing them within the proposed tenements, or even nearby.

At paras 27-28 Mr Mrvelj says that during the surveys the wati expressed serious concern regarding any potential exploration through the breakaway areas, “located within and to the east of E38/3408”. This statement is inconsistent with his statement at para 26 that the breakaway formation is to the east of E38/3408. It seems that the wati did not mention the reasons for the area not being “cleared”. Mr Mrvelj considers that, “these landforms had the potential to contain areas or sites of cultural significance”, in accordance with his, “broader understanding and researching pertaining to the Western Desert cultural bloc”. It is difficult to understand Mr Mrvelj’s meaning when he speaks of a “potential” for landforms to contain areas or sites of cultural significance. Any similar area may have such “potential”, at least until it has been excluded by investigation. The assertion of “potential” does not lead me to infer that the proposed tenements contain, or may contain such areas or sites. At para 29 Mr Mrvelj says that he is aware of the “features” within, and associated with, “these breakaways”. However the “features” are neither identified nor located. Nor were the reasons for their importance disclosed to him.
Mr Mrvelj says that in his experience, Western Desert people are “always careful” around breakaways and hills. He says that, “it was apparent to me that this particular formation, given that the predominant landscape surrounding it is mainly sand without much vegetation, is seen as an area requiring respect and protection”. At para 30 Mr Mrvelj says that to his knowledge, Western Desert women are known to avoid breakaways at all costs. Children are discouraged from running around, and climbing such formations. He says that the breakaways surveyed, “directly to the east of E38/3408 were considered by the participants to be significant, and accordingly I consider it highly likely that the breakaways within E38/3408 are also areas of significance”. However there is no clear evidence that there are breakaways within proposed tenement E38/3408. Further, in view of the absence of any explanation for the attribution of significance to any breakaway which may be within the proposed tenements, I am unwilling to base any relevant conclusion upon this aspect of the evidence.
Mr Mrvelj summarizes this aspect of his evidence at para 31 as follows:
[a]ccordingly, I consider that the area of breakaway formations through E38/3408 and adjacent to it are considered by the native title claimants and wati to hold a high degree of cultural significance. I also believe that there may well be numerous other tjukurrpa in the area of the tenements, which were not disclosed to me during the survey.
As I have said, there is no clear evidence that there is a breakaway within either of the proposed tenements. There is clear evidence of a breakaway to the east of proposed tenement E38/3408. However there is no further evidence as to its location or as to its cultural significance.
Mr Mrvelj then deals with “responsibility for country”. Much of this discussion relates to the Western Desert cultural bloc. Its applicability to the Native Title Party is impliedly assumed rather than asserted. I have already discussed this question. At para 41 Mr Mrvelj specifically identifies the Native Title Party’s belief that illness may result from the inappropriate entry by a person into an area, or by such a person’s dealing with, or taking something from the area. The responsibility lies with both the offending person and those who should have prevented such behaviour.
In summary, concerning responsibility for country, I accept that in Western Desert culture, there is a responsibility to the tjukurrpa itself, to the country through which it travels and to traditional laws and customs, and that such responsibility is also owed to other people across the Western Desert. For men’s only tjukurrpa those responsibilities rest with the men who safeguard it as it travels through their country. They have obligations to protect their respective sections of the tjukurrpa until it travels on to different country. If there is damage to sites and places associated with a tjukurrpa track, the repercussions upon responsible men may be real and serious. It is similarly the case where women are responsible for women’s stories.
It is important that only appropriate people visit places in which a tjukurrpa is manifest. It is the responsibility of those looking after such areas to enforce that limitation. Mr Mrvelj says that during the surveys, members of the survey team would simply explain, “we cannot go to that place”, or, “we cannot go farther than this point”, leaving out any name or identifying feature. For the sites and tjukurrpa around the proposed tenements, responsibility now rests with the Native Title Party. If these places are interfered with, the Western Desert people believe that both the people who allow the inappropriate visits and the visitors will suffer consequences, both spiritual and physical. In particular, the Western Desert people believe that the tjukurrpa will make them, and others, sick if they do not protect it, and places associated with it, and ensure that only the right people are able to access such areas or sites.
Mr Mrvelj understands that people are fearful of being punished for cultural practice contraventions, which contraventions range from speaking inappropriately about a location or tjukurrpa story, to accidentally or intentionally accessing a place which they should not access, or failing to protect a place or tjukurrpa story from outside impact.
It is said that if “people” consider that another person has done the wrong thing, or allowed an exploration company, or other third party to do the wrong thing, there will be both spiritual and physical consequences. Any impact on the country impacts upon, or damages the tjukurrpa itself. Mr Mrvelj understands that even driving through an area can cause distress to the traditional owners.
Mr Mrvelj then deals with “natural significance and wildlife”. He says that, during the surveys they discovered, “extensive bilby and desert skink tracks near E38/3408”. He says that the area appears to be, “relatively populated with wildlife”. Such wildlife was associated with a large “papa kutjarra kutjarra” (four dingoes) rockhole in close proximity to E38/3409, where they found a family of dingoes living in the “den”. The wati considered this to be a very important rockhole. There is also a large Kurrajong tree to the south of E38/3408. Such trees are considered to be places of importance by members of the Western Desert cultural bloc, as they signify the presence of water. These sites have not been identified in the course of evidence. There is no suggestion that any of these areas lies within either of the proposed tenements.
In addition to the dingoes, bilbies and desert skink, one survey party came across a large flock of princess parrots. It is said that these parrots had not been seen in the area in decades. It is rare to see such large birds, unless there is a reliable water source nearby. Given the population of wildlife, Mr Mrvelj understands that, “the area where the [proposed tenements] are located is commonly used by the [Native Title Party] for hunting and camping”. It is said that the road from Laverton to Lake Rason is increasingly used by the community for access to “the area” and to other parts of the claim area, particularly Lake Rason.
There is no direct evidence of hunting in this area. I do not accept that Mr Mrvelj can reasonably infer from the presence of wildlife in a particular area, that the area is commonly used by the Native Title Party for hunting and camping, particularly as few, if any people seem to live in the area. Further, none of the wildlife was located within the proposed tenements.
The significance of Lake Rason Road is unclear. It seems to run from the lake, which is about 20 kilometres south-east of proposed tenement E38/3408, and about the same distance north-east of proposed tenement E38/3409. The road passes roughly midway between the two proposed tenements, about 12 kilometres from each of them. It then travels a significant distance to the west, before arriving at Laverton. It is difficult to see how traffic on that road can be of any relevance for present purposes.
At paras 46-53 Mr Mrvelj addresses the “potential for interference”. He suggests that should the proposed tenements be granted, and the Native Title Party not be given the opportunity to undertake a survey in the area, the potential for interference would be high. Curiously, he says that this view is largely based upon what is “not known” about the area around the proposed tenements. I take this proposition to mean that the bare possibility that there are areas or sites of particular significance in, or near, the proposed tenements is a sufficient basis for a finding that interference is not unlikely. Such an approach would go well beyond the test prescribed in s 237(b).
At paras 47-49, Mr Mrvelj says that there was “a lot of concern” regarding the tjukurrpa that passes through the proposed tenements and which tjukurrpa, Mr Mrvelj believes, physically manifests itself in breakaways, rockholes and wildlife. However the evidence does not clearly establish that any tjukurrpa runs through either proposed tenement. Further, the belief concerning the manifestation of the tjukurrpa is not said to be that of the Native Title Party. Rather, it is Mr Mrvelj’s belief. He was told only that an area (not identified in para 48) was an “area of importance”, wherever it was located. There is no demonstrated basis for such importance.
At para 49, Mr Mrvelj says that on the surveys, he perceived a “tension about” the unknown areas, especially to do with the breakaways. Again I note that it is not clear that there are any breakaways within the proposed tenements. He considers it likely that there were important cultural reasons for such tension and concern, but there is no evidence as to such matters.
Paragraphs 50 and 51 of Mr Mrvelj’s affidavit are a little difficult to understand. Paragraph 50 seems to deal with the shortcomings of work programmes provided by proposed grantees. He points out that such programmes do not focus on the actual locations of proposed drill holes. In para 51 he distinguishes between surveys and a “comprehensive cultural mapping exercise”. Mr Mrvelj then seems to assert that a survey of proposed drill lines will generally not allow for exploration, “everywhere in the area of the work program”, simply because such a survey would involve too much work. He then seems to opine that the number of important “sites” associated with landforms, particularly the breakaways adjacent to the area of the tenements, leads him to believe that there is likely to be a concentration of further sites and, potentially, rockholes in the area of the tenements. I have discussed this opinion.
At paras 52 and 53, Mr Mrvelj asserts that the only way of mitigating the impact of any exploration activities in the area of the proposed tenements is to conduct a suitable heritage survey with the Native Title Party, “to ensure any culturally sensitive locations are not disturbed”. Mr Mrvelj says that without such a survey, there is a “fair likelihood that sites may be inadvertently accessed and interfered with”. This proposition seems to depart substantially from the test prescribed by s 237(b). The Tribunal is not required to determine whether there should be a survey. The question is the likelihood or otherwise of interference with areas or sites of particular significance in accordance with the Native Title Party’s traditions.

Summary of the Native Title Party’s Evidence

Neither Mr Mrvelj nor Mr Murray seems to appreciate the significant difference between areas or sites located within the proposed tenements, and areas or sites lying outside of such tenements. The key to understanding the distinction is the fact that the exploration authorized by the proposed grants is exploration within identified boundaries. As a matter of common sense, one may infer the possibility that exploration activity may interfere with areas or sites lying within such boundaries, although such bare possibility is not the test prescribed in s 237(b). The cases suggest that conduct pursuant to the proposed grants may interfere with areas or sites outside of the proposed tenements, and that such interference may engage s 237(b). Such possibility will not be easily assessed. In most cases, for the purposes of proceedings of the present kind, it will generally be necessary that areas or sites outside of the proposed tenements be shown to be geographically proximate to an area where the consequences of the proposed grant may produce interference. This approach does not exclude possible interference of a spiritual kind, but some possible connection must be shown between conduct pursuant to the proposed grants and the relevant areas or sites. It is unlikely that the requirements of s 237(b) can be met by merely asserting the existence of unidentified areas or sites and unexplained connections which might lead to the possibility of interference.
Mr Mrvelj cannot usefully speculate about what he was not told, or why. Nor may he properly speculate about perceived “tension” on the part of survey participants, or the shortcomings of the surveys. The fact remains that the Tribunal must perform the exercise contemplated by s 237(b). That exercise necessarily requires the identification of areas or sites, assessment of their particular significance in accordance with the native title holders’ traditions and the possibility of interference. There is a difference between inferring that there is a particular area or site, and inferring that there may be an area or site.
Within the Native Title Party, there may be degrees of knowledge concerning such matters. The Tribunal accepts that the Native Title Party may be obliged to observe traditional laws and customs which restrict the disclosure of some information. Nonetheless, s 237(b) contemplates more than the acceptance of bare possibilities and speculation. How much further the evidence must go will depend on the circumstances of the case. All parties should keep in mind the possibility that access to evidence may be protected by a Tribunal order.
In this case, much of the evidence is contradictory or equivocal. As concerns the Seven Sisters tjukurrpa, Mr Mrvelj says, at para 22, that it travels through the area of the tenements. At para 23, he asserts that it, “traverses across many areas of the desert, possibly including the area of the [proposed tenements]”. There are said to be two men’s sites in “close proximity” to the proposed tenements. They are said to be “extremely sacred”, but nothing helpful is said about them. Even if one can attribute meaning to the expression “close proximity”, there is no evidence as to where the men’s sites lie, relative to the proposed tenements, or the meaning of the term “close proximity” in this context. At para 47 Mr Mrvelj says that he believes that the tjukurrpa which passes through the tenements physically manifests itself in the breakaways, rockholes and wildlife. However, as I have said, there is contradictory evidence as to whether the tjukurrpa passes through the proposed tenements. Nor has it been clearly shown that there are relevant breakaways within the proposed tenements. Although Mr Mrvelj considers that the area is of importance, the reasons for such importance were not made clear to him. It is said that those matters are kept private, as a matter of law. Nonetheless, one would expect rather more detail of these concerns than has been given. Discharge of the Tribunal’s duty to apply s 237(b) depends upon the availability of at least some evidence as to location and significance.
It may be suggested that areas or sites outside of the proposed tenements will suffer interference as a result of the Proposed Grantees’ accessing them. However, the Proposed Grantees’ evidence is that they will access the proposed tenements by using existing roads and tracks. That intention would effectively exclude the risk of physical interference outside of the proposed tenements. The Proposed Grantees also intend, where practicable, to use only existing roads and tracks within the proposed tenements. That arrangement would significantly minimize the chances of physical interference within the proposed tenements.

PROPOSED GRANTEE PARTIES’ EVIDENCE

One of the Proposed Grantees, Trent William Potts, holds the degree of Bachelor of Science, majoring in geology, awarded by the University of Otago, New Zealand in 2011. For the last two years he has been working as a geologist in Canada and, for six years prior to that, as a geologist in Australia. At the time of making his affidavit, Mr Potts was in Peru. Then, he expected to return to Australia during March 2020, and thereafter reside here. I do not know whether that expectation has been realized, given current circumstances.
He is aware of the obligations imposed by s 17 of the AH Act, and that a Register of Sites is maintained in accordance with that legislation. It may readily be searched on a tenement-by-tenement basis. He has reviewed extracts from the Aboriginal Heritage Inquiry System relating to the proposed tenements. The extracts show that there are no RASs, and no OHPs within the proposed tenements. Mr Potts acknowledges that there may be sites which are not recorded on the Register. Further, some registered sites may no longer exist. He asserts that the Proposed Grantees intend to undertake the exploration described in statements previously prepared by him. He notes that under s 115A of the Mining Act, holders of tenements are required to file with the State, mineral exploration reports, containing records of the progress and results of mineral exploration, including drilling programmes and sampling activities. Using available geospatial data, he has discovered that the State holds at least 25 reports which relate to the whole or portions of each proposed tenement. Such reports are readily available. He says that historical exploration within the mining tenements has included in excess of 450 drill holes and 1,668 ground samples.
Numerous roads and exploration tracks provide access to both proposed tenements. There are also roads and tracks within the proposed tenements. Mr Potts attaches maps which show reported surface samplings within, and surrounding the proposed tenements. Maps also show roads and exploration tracks within, and surrounding them, based upon satellite imaging, which imaging is publicly available. Mr Potts says that the Proposed Grantees have applied for the proposed grants for the purpose of exploring for gold. He has identified reported surface sampling and drilling which indicate the presence of gold mineralisation. He has identified areas within which the Proposed Grantees will focus their exploration work. These are marked on an annexed map.
In order to access the proposed tenements the Proposed Grantees intend using only those roads and exploration tracks shown on the maps. To the extent practicable, they intend to limit movement within the proposed tenements to existing roads and exploration tracks. The red boxes marked on an annexed map (annexure TWP5) show the primary foci of the proposed exploration.

THE STATE’S EVIDENCE

The State has provided a significant amount of information. However, to the extent that it is relevant, it is identified in the parties’ evidence and/or contentions.

NATIVE TITLE PARTY’S CONTENTIONS

I have already indicated my concerns about much of the Native Title Party’s evidence, in particular its failure to distinguish consistently between sites which may be within either of the proposed tenements or outside of both of them, and the consequential increase in the difficulty to be overcome in demonstrating the likelihood of interference as the result of action pursuant to the proposed grants. I have also demonstrated my concern about generalized assertions of “sacredness” or other cultural significance without any demonstrated bases for such assertions. Further, I have noted the Native Title Party’s failure to provide evidence sufficient to allow evaluation of claims that areas and sites are of particular significance in accordance with native title holders’ traditions.

Paragraphs 1-5.4 of the contentions identify largely non-controversial propositions. At paras 5.5-5.13, the Native Title Party deals with s 17 of the AH Act. It points out that s 237(b) focusses upon areas or sites of particular significance in accordance with the native title holders’ traditions, whilst s 17 focusses on the State’s cultural heritage. It also notes that the AH Act contemplates the possible lawful destruction of Aboriginal sites. It is not easy to assess the extent to which the terms of the AH Act may contribute to the protection of areas or sites for the purposes of s 237(b). It may not be possible to perform such an assessment other than in connection with a particular fact situation. No party sought to perform such an exercise. Further, to some extent, protection under the AH Act will depend upon State decisions.
At paras 5.14-5.21 the Native Title Party makes a number of submissions which tend to put the protection offered by s 237(b) at its highest. It submits that, having regard to the cases:
·        it is not necessary that some particular form of damage be identified or inevitable in order that the Tribunal find that interference is likely;
·        the relevant interference need not be physical;
· interference may be trivial under s 237(a), but substantial for the purpose of s 237(b);
·        even the risk of “slight” interference “may” be “unacceptable”, having regard to the nature of the area or site, the nature of the potential interference, and the relevant traditions;
·        the Tribunal, having considered all relevant matters, need not explain why a particular activity is likely to interfere with a particular area or site;
·        the Tribunal is not required to state its findings as to the exact action which may constitute interference; and
·        an existing statutory regime (such as the AH Act) may not sufficiently protect an area or site from interference.
These propositions reflect observations made in particular cases in response to particular submissions. They should be so understood. They should not be treated as “principles”, having some sort of universal application. That interference need not be physical does not necessarily lead to the conclusion that any non-physical effect will constitute interference. Similarly, that interference may be trivial for the purposes of s 237(a) does not lead to the conclusion that such interference is “substantial” for the purposes of s 237(b). As to the two propositions concerning the Tribunal’s obligations, the Tribunal must discharge its obligations in accordance with the facts of a particular case. None of the above statements, detracts from the clear language of s 273(b).
The thrust of the Native Title Party’s submissions appears at paras 5.22-6.2 of the submissions. It purports to identify:
·        the areas or sites allegedly of particular significance to the Native Title Party;
·        the likelihood of interference with such areas or sites;
·        the aspects of the areas and sites which lead to the assertion that the AH Act, for present purposes, offers only minimal protection; and
·        its reasons for the assertion that negotiation between the Native Title Party and the Proposed Grantees is required in order to ensure that areas or sites of particular significance are not likely to be subject to interference.
In this case the primary question is the extent to which the Native Title Party has identified areas and sites of particular significance in accordance with the traditions of the traditional owners.

Areas or Sites of Particular Significance

At para 5.22, the Native Title Party identifies four categories of areas or sites which are relevant for present purposes. They are:
·        manifestations, within the proposed tenements, of the Seven Sisters Dreaming, a Dreamtime story of particular significance to women;
·        manifestations, within the proposed tenements, of other tjukurrpa of particular significance to men, which Dreamings cannot be discussed by anyone except wati (initiated men) because they are extremely sensitive and sacred;
·        physical elements of the areas and/or sites, including breakaways and rockholes which, the Native Title Party believes, were created by the tjukurrpa, and for which members of the Native Title Party are responsible, in accordance with traditional laws and customs; and
·        multiple sites of particular cultural significance, which sites are restricted to initiated men only, and are adjacent to, or in close proximity to the proposed tenements.
As to the first three categories, the Native Title Party asserts that the areas or sites in question are within the proposed tenements. However no attempt is made to resolve the ambiguities in the evidence, to which ambiguities I have referred.
Concerning these four categories of areas or sites, the Native Title Party submits at paras 5.22(e) and 5.22(f):
(e) Members of the Native Title Party have an obligation, according to their traditional laws and customs, to maintain and protect sites of particular significance located within and near the [proposed tenements], as well as animals.
(f) Members of the Native Title Party risk sickness or physical injury in the event that the part of the Tjukurrpa story, and/or sites and/or areas of particular significance, located within and near the [proposed tenements] are damaged by activities conducted within the [proposed tenements].
I shall deal with the four categories in turn.

Seven Sisters Dreaming

In this regard, the Native Title Party refers particularly to Mr Mrvelj’s affidavit at paras 22-23. He asserts virtually no knowledge of this tjukurrpa, apparently because it is a women’s story. He knows that it is, “extremely important in a local and regional context and is known, at least in vague terms, to those across the communities of the Western Desert”. He then asserts that it traverses many areas of the desert, “possibly including the area of the [proposed tenements]”. This proposition is inconsistent with para 22 of his affidavit, where he asserts that the tjukurrpa travels through the area of the tenements. His evidence offers little or no basis for assessing the particular significance of the relevant areas or sites. All that we know is that there is such a story, and that it is said to be “extremely important”. Mr Murray makes no mention of it, perhaps because it is a women’s story.
Mr Mrvelj’s assertion of “extreme importance” is a matter of opinion. He offers no factual basis for it, other than the story’s wide recognition across the Western Desert. However that says little about its significance to the Native Title Party. The Tribunal must consider whether the term “extreme importance” can be translated into “particular significance”, not for the wider Western Desert community, but in accordance with the traditions of the Native Title Party. In summary, I have no firm information as to where the tjukurrpa tracks with reference to the proposed tenements, and no information as to the nature of its importance or “significance”.
As I have said, s 237(b) contemplates that areas or sites will be identified so that their particular significance, according to relevant traditions, may be assessed. Identification will generally involve some geographical element. This is particularly the case where it is suggested that actions within the proposed tenements will cause interference with areas or sites outside of the proposed tenements. In this case the evidence is too vague and inconsistent to justify an inference that there will likely be interference with relevant areas or sites. I am satisfied that it is not likely that there will be any interference with the Seven Sisters Dreaming, or areas related to it, as a result of the proposed grants.

Other Tjukurrpa of Particular Significance for Men

The Native Title Party refers to Mr Murray’s affidavit at paras 8, 16 and 22 and to Mr Mrvelj’s affidavit at paras 24-25 and 31.
In para 8 of his affidavit, Mr Murray says that he learnt about the tjukurrpa from his parents and other elders. It seems that he is referring to more than one tjukurrpa. He believes in them, but says nothing about their content or locations. At para 16 he refers to men’s sites “near” the proposed tenements, about which he cannot say much. In fact, he says virtually nothing. I have already discussed this evidence. Mr Murray says that it is for the initiated men to, “protect the sites and keep the story secret”. He says that it is very important that people other than initiated men not go near the sites, and that if they do, they may get sick. At para 22, he more or less repeats the content of para 16. Again, he says that there are several sites near the proposed tenements, offering no indication as to where, or how there may be a risk of interference. He says nothing which would allow an assessment of particular, as opposed to general, significance. Indeed, the only evidence of significance seems to be the alleged likelihood of sanctions for wrongful intrusion.
Paragraphs 24, 25 and 31 of Mr Mrvelj’s affidavit require careful reading. Paragraphs 24 and 25 assert that there are a number of men’s sites in “close proximity” to both proposed tenements. It is said that the wati pointed out two sites of significance in the “area”, presumably not within the proposed tenements. Mr Mrvelj says that he “understands” that the sites are extremely sacred and that accordingly, he cannot speak about them. He does not suggest that he has formed a view as to their sacredness. Again, I am left with bare assertions. As I have said, the term, “close proximity” is a relative term. I have no way of assessing it. I do not know whether the sites lie to the north, south, east or west of the proposed tenements. There is also no basis upon which I could assess the particular significance of such sites. There is no explanation as to how activity within the proposed tenements might interfere with them.
Paragraph 31 of Mr Mrvelj’s affidavit deals with tjukurrpa and with breakaway formations. Mr Mrvelj “considers” that the breakaway formations through E38/3408 and adjacent to it are “considered” by the native title claimants and wati to hold a “high degree” of cultural significance. It is not clear that there are any breakaways in that proposed tenement. See Mr Murray’s affidavit at para 13, and Mr Mrvelj’s affidavit at paras 26, 30 and 31. Such evidence concerning particular significance could hardly be less persuasive. As concerns the tjukurrpa, Mr Mrvelj “believes” that there “may be” numerous other tjukurrpa in the area of the proposed tenements, which tjukurrpa were not disclosed to him. That opinion is mere speculation.

Physical Elements, Including Breakaways and Rockholes

The Native Title Party believes that physical elements of the areas and/or sites, such as breakaways and rockholes, were created by the tjukurrpa, for which elements they are responsible in accordance with its traditional laws and customs. The difficulty with this aspect of the case is the uncertainty as to the locations of the elements in question. Further, there is no real explanation as to the connection between areas or sites and the tjukurrpa, or as to their particular significance.
The inconsistency of this evidence is disturbing, as is the absence of any attempt to provide a basis for asserting the likelihood of interference. It is said at para 26 that there are deep caves which are important for men’s business, and for women’s business, probably birthing. However there is no evidence concerning locations, and there is no identified basis for assessing particular significance, save possibly for birthing. Even about that matter, Mr Mrvelj is equivocal.
The Native Title Party refers to paras 6, 7, 9, 10, 13, 19-21 and 23-25 of Mr Murray’s affidavit. It is difficult to identify the point or points being made in this submission. The cited passages demonstrate that Mr Murray has limited knowledge of the area, but has some responsibility for caring for country. In para 6, he asserts that he knows that there are tjukurrpa “for” the proposed tenements but provides no detail of either locations or particular significance. At para 13 he says that there are many breakaways, with rockholes and waterholes, along the edge of the claim area. He says that one such breakaway “comes into the eastern side” of proposed tenement E38/3408. However he does not identify it further. Nor does he say anything about its particular significance. He refers to a rockhole to the east of proposed tenement E38/3409, but does not provide any more specific information. He says that he has seen dingoes in the rockhole. He says nothing about the frequency of such sightings. The hole is said to be “quite near” to the proposed tenement, again a difficult statement to assess.
At para 20 Mr Mrvelj speaks of the princess parrots, seen to the east of proposed tenement E38/3409. He suggests that as they are “endangered”, the Native Title Party has a responsibility for looking after animals and birds, including them. He says that it is very important that they care for rockholes and waterholes. However there is no suggestion that the sighting was in an identified nesting or feeding area, or that it is of any particular significance to the traditional owners, save for the general responsibility for the land and fauna. At paras 23-25 he again asserts his view concerning the risk of interference but adds nothing to his earlier statements.
The Native Title Party also relies upon Mr Mrvelj’s affidavit at paras 13-19 and 26-41. Paragraphs 13-18 concern the general significance of the tjukurrpa to members of the Western Desert cultural bloc. Paragraphs 19 and 20 relate specifically to the Native Title Party. It is suggested that during the surveys, Mr Mrvelj noticed “hesitation” in approaching certain, unidentified areas or in speaking about them, and “reluctance” about sharing names and details of the tjukurrpa. Such observations suggest that Mr Mrvelj’s opinions are based on his interpretation of conduct rather than information provided to him. There are difficulties in acting upon such interpretation.

Multiple sites of particular cultural significance, limited to initiated men

The Native Title Party relies upon paras 16-17 of Mr Murray’s affidavit. Mr Murray identifies “sacred men’s sites” near the proposed tenements, about which he says only that the relevant information is kept secret by the initiated men, and that it is important that others not go to such sites.
The Native Title Party also relies upon paras 24-25 and 27-31 of Mr Mrvelj’s affidavit. Paragraphs 24 and 25 refer to sacred men’s sites, said to be in close proximity to the proposed tenements. I have previously dealt with that evidence. At paras 27-31, it is said that the wati expressed “serious concern” regarding any exploration through the breakaway areas located within, and to the east of proposed tenement E38/3408. I have drawn attention to the inconsistency concerning the location of breakaway areas within the proposed tenements. As to para 28, Mr Mrvelj merely speculates about the reasons for the watis’ concern.
As to paras 29-31, I accept generally the evidence as to women and children avoiding breakaways and hills. However Mr Mrvelj’s assertion that the particular breakaway “is seen as an area requiring respect and protection” is unsupported by any explanation of the circumstances leading to such view. At para 31, no basis is offered for an inference as to the existence of other tjukurrpa, or as to the assertion that breakaway formations through proposed tenement E38/3408 and adjacent to it, are held in a “high degree of cultural significance”. Again, the lack of evidence relating to location is also of concern.
As to para 5.22(e) of the Native Title Party’s submissions, I accept that members of the Native Title Party have obligations, pursuant to traditional laws and customs, to maintain and protect sites located within, or near to the proposed tenements, and that such responsibility extends to animals and birds. However I do not accept that there is sufficient evidence to identify the existence or location of relevant areas or sites, nor as to their particular significance. At best, the evidence as to both aspects is equivocal.
As to para 5.22(f), I accept that members of the Native Title Party believe that they risk sickness or physical injury in the event of damage to a tjukurrpa story and/or areas or sites of particular significance. However I do not accept that any such areas or sites have been identified in order to enable the assessment required by s 237(b). No other specific damage to the tjukurrpa has been suggested.
As to para 5.23, I accept that areas or sites of particular significance may, on occasions, be of such a nature that interference is likely. However the absence of evidence concerning such areas or sites prevents me from inferring that there is any such likelihood in the present case. I also accept that such interference may cause emotional disturbance to members of the Native Title Party. Again, my findings lead to the conclusion that such interference is unlikely. For these same reasons, I reject the assertions in para 5.25.
At various stages in its submissions and evidence, the Native Title Party seems to invite me to decide whether or not there should be “meaningful” consultation and negotiation between the Native Title Party and the Proposed Grantees. If adopted, this submission would lead to error. The purpose of the objection process is to determine the need for good faith negotiation by reference to s 237. It would not be appropriate for the Tribunal to apply a different test, based upon the relevant Member’s view as to whether “consultation and negotiation” are desirable.
As to para 5.24, it cannot be asserted that the AH Act will offer no protection to relevant areas and sites. However I accept that such protection may not be sufficient to render it unlikely that there will be interference with relevant areas and sites. There is insufficient evidence to establish the existence, let alone the locations of areas or sites of particular significance for the purposes of s 237(b), either within the proposed tenements or outside of them, or to enable any assessment of the likelihood of interference.

THE PROPOSED GRANTEES’ CONTENTIONS

[108]The Proposed Grantees’ contentions, and those of the State tend to focus on many of the apparent discrepancies and inadequacies in the Native Tile Party’s evidence, to which I have already referred. In summarizing their contentions, I shall try to avoid unnecessary repetition. In the Proposed Grantees’ contentions, paras 1-8 deal with general submissions and references to the evidence. Thereafter, the contentions deal with the following matters:
·        the absence of evidence as to any particular area or site within the proposed tenements, which area or site is asserted to be of particular significance;
·        the relevance of Mr Mrvelj’s evidence;
·        available inferences as to the areas or sites within the proposed tenements;
·        interference with areas or sites outside of the proposed tenements;
·        intentions of the Proposed Grantees; and
·        evidence of interference.

There was some dispute concerning the admissibility of Mr Murray’s evidence, largely based upon difficulties experienced in having the affidavit executed. In the end I do not understand there to be any real point of dispute concerning such admissibility, although the Proposed Grantees have suggested that the weight given to such evidence ought be discounted in some way. As I have demonstrated, there are deficiencies in Mr Murray’s evidence, which deficiencies may adversely affect my conclusions concerning that evidence. However I draw no adverse inference from the circumstances in which the affidavit was prepared, and its content adopted by Mr Murray.

Turning to the first of the six matters identified above, I have already demonstrated that there is no clear evidence of any relevant area or site within the proposed tenements. Much of the evidence is contradictory or equivocal. As to areas or sites outside of the proposed tenements, there is very little evidence even as to approximate locations. The Native Title Party has made little or no attempt to inform the Tribunal as to the particular significance which may be attributed to areas or sites, save by way of simple assertion, sometimes, but not always, using the language of s 237(b).
As to the relevance of Mr Mrvelj’s evidence, the Proposed Grantees’ criticism is largely based upon the circumstances in which he came to participate in the surveys. I have already commented upon the curiosities concerning that matter, and the uncertainty about aspects of it. I have taken these matters into account in assessing his evidence as outlined above. I adopt the observations made by Member McNamara in Peregrine Resources Pty Ltd v Ashwin [2014] NNTTA 59 and cited in the Proposed Grantees’ contentions at 10.16 as follows:
[87] In the present matter, there is no evidence of any sites or areas of particular significance within the proposed licence area. Nevertheless, the first native title party contends that it is possible sites or areas may exist in the area, though they have not been identified or recorded. In this respect, the first native title party placed significant emphasis on the fact that none of the Wutha people have participated in a survey over the proposed licence area or have been invited to do so.
…
[88] The submissions of the first native title party on this point come down to an argument that there is a chance that areas or sites of particular significance will be affected unless a heritage survey is conducted in the form endorsed by the Wutha people. I do not accept that argument. It is not open to infer that, because a survey has not been undertaken, there is a greater likelihood of interference with areas or sites of particular significance. The precondition of the inquiry is the identification of sites or areas of particular significance (see Yindjibarndi v FMG Pilbara at [125]). As Deputy President Sosso rightly noted in Monadee v Western Australia at [13], the kind of argument advanced by the first native title party essentially requires an inference to be drawn from speculation (that is, the existence of sites) based on the non-occurrence of an event (the heritage survey). If it is claimed that areas or sites of particular significance exist, they must be capable of identification (see Western Australia v McHenry; Silver v Northern Territory at [91]). In the absence of further evidence, I find that there is no more than a remote possibility that sites or areas of particular significance to the first native title party exist within the proposed licence area.
Subject to my earlier observations, I do not reject Mr Mrvelj’s evidence as entirely, or even largely, irrelevant. However I treat it with consideratble caution.
Concerning available inferences as to the existence and/or location of relevant areas or sites within the proposed tenements, the Proposed Grantees point out that there is no evidence as to the actual locations of rockholes or waterholes within the proposed tenements, or outside of them, save for the suggestion that it (or they) may lie to the east of proposed tenement E38/3408. The Proposed Grantees also submit that there is no evidence that anybody (other than Mr Murray and his family) takes water from rockholes or waterholes outside of the proposed tenements. That proposition may be literally true but, in my view, it is likely that if people visit such areas, they will take water from wherever they can find it. The real point is that no attempt has been made to identify any specific rockhole or waterhole, inside or outside of the proposed tenements, from which visitors might take water.
The Proposed Grantees also point out that it is unlikely that any rockholes or waterholes outside of the proposed tenements will be subject to interference, partly because the Proposed Grantees intend to restrict access to existing roads or tracks. Further, the absence of evidence concerning the location of any rockhole or waterhole makes it difficult to assess the likelihood of interference.
The Proposed Grantees contend that they are familiar with their obligations under the AH Act and accept the relevant guidelines prescribed by the State. That evidence is, to some extent, reassuring. I put it to no higher than that.
Finally, the Proposed Grantees submit that the history of exploration within the boundaries of the proposed grants is such that it may be inferred that there is no real risk of interference with significant areas or sites, let alone areas or sites of particular significance. This submission is not infrequently made, but rarely accepted as persuasive. However, in this case, it is reasonable to infer from the evidence that there has been fairly extensive exploration of the proposed tenements, whether or not the Native Title Party was aware of it at the time. The Native Title Party has apparently not located evidence of any adverse consequences of such interference. Had there been any such evidence, the Tribunal would surely have been informed of it in the course of these proceedings.

THE STATE’S CONTENTIONS

As to the State’s contentions, paras 1-17 relate to various aspects of the evidence to which I need not again refer. At paras 18-20 the State contends that the Proposed Grantees have offered to enter into an RSHA with the Native Title Party, that they have confirmed that they are aware of their obligations under relevant legislation and guidelines, and that they intend to comply with them. It is submitted that I should infer that the Proposed Grantees will not act in breach of the relevant legislation, regulations or conditions. Further, the State submits that the Native Title Party’s concerns about exploration activity, or conduct by other explorers are not sufficient to overcome the assumption that the Proposed Grantees will comply with the regulatory regime. Whilst I do not dismiss this submission, I give it only limited weight. I need not deal expressly with paras 21-25.
At paras 26-29 the State summarizes various “principles”. Whilst I accept that the “tests” identified in paras 26 and 27 may accurately be described as “principles”, the matters discussed in paras 28 and 29 might be more accurately described as “considerations”. It is necessary that I distinguish between matters prescribed for consideration by s 237(b) and matters which, from a practical, or evidentiary point of view, are relevant to the application of that section.
At paras 30-36 the State identifies the difficulties associated with the Native Title Party’s case, including its failure to locate relevant areas or sites within the proposed tenements and beyond. I have taken those submissions into account in my assessment of the Native Title Party’s contentions.
At paras 37-41 the State deals with the significance of the alleged areas or sites. The State submits that the Native Title Party has not demonstrated the particular significance of the Seven Sisters Dreaming. It is clearly unable to do so because of Mr Mrvelj’s limited knowledge. Similar comments apply to the other tjukurrpa.
Although the State’s primary contention is that the Native Title Party has not identified relevant areas or sites of particular significance according to its traditions, it submits in the alternative that access to the proposed tenements is unlikely to interfere with any area or site of particular significance, whether located within the proposed tenements or elsewhere. The State’s reasons for this conclusion largely reflect those of the Proposed Grantees, particularly that the history of exploration within the proposed tenements makes such interference unlikely.
The State submits that as the Native Title Party has not established, with sufficient particularity, sites or areas of particular significance according to its traditions, it is reasonable to infer that s 17 of the AH Act offers sufficient protection of Aboriginal sites as defined in s 5 of the AH Act. I need not say anything more about that contention.

NATIVE TITLE PARTY’S CONTENTIONS IN REPLY

The Native Title Party has provided extensive contentions in reply. Contentions in reply should not generally be so lengthy, but circumstances peculiar to this case have produced that outcome. I have, in any event, sought to synthesize all of the submissions and my views concerning them. It will not be necessary that I add much in connection with the contentions in reply.
At para 1.2 the Native Title Party submits that:
(a)      there is sufficient evidence to demonstrate that sites and/or areas of particular significance exist within and adjacent to the areas of the Tenements;
(b)      given the nature of the sites and/or areas of particular significance, neither the [RSHA], the [AH Act], nor any undertakings or ‘intentions’ of the [Proposed Grantees], are sufficient to mitigate against the type of interference contemplated by section 237(b) of the [Native Title Act];
(c)      so as to reduce the likelihood of interference with sites and/or areas of particular significance, the [Proposed Grantees] must negotiate an agreement with the Native Title Party that allows for heritage surveys prior to the conduct of all exploration activities pursuant to the [proposed grants];
(d)      the only way to ensure the [Proposed Grantees] participates in such negotiations is to apply the right to negotiate to the grant of the Tenements.
The validity of the assertions in paras 1.2(b), (c) and (d) depends upon the validity of the first proposition, namely that there is sufficient evidence to demonstrate that sites and/or areas of particular significance exist within, and adjacent to the area of the tenements. For reasons which I have given, I do not accept that proposition. The Native Title Party has pointed out that there was no cross-examination of Mr Murray, implying that his evidence should be accepted at face value. However my primary concern is about the inconsistency and ambiguity of Mr Murray’s evidence. It was for the Native Title Party to deal with those matters.
As to Mr Mrvelj’s evidence, similar comments apply. The Proposed Grantees and the State suggest that he lacked the independence and impartiality expected of an expert witness. Whilst his language may have suggested support for the Native Title Party’s cause, for present purposes, I am not willing to infer that he allowed any partisan considerations to affect his evidence. However I agree with the Proposed Grantees’ submission that the circumstances leading to his involvement in the matter are difficult to understand. The Native Title Party seeks to justify speculation by Mr Mrvelj by reference to cultural sensitivity and his status as an uninitiated man. It is said that his disclosure of these matters demonstrates his honesty concerning the limitations of his knowledge. However that is not the point. The Tribunal must act on the evidence before it, not the evidence which might have been given, had the Native Title Party produced more knowledgeable witnesses, and/or had it otherwise found a way to provide evidence which would satisfy the requirements of the Tribunal, whilst taking account of the sensitivity of the information concerned.
At paras 7.2 to 7.5 of its contentions in reply, the Native Title Party simply disagrees with the submissions made by the State and the Proposed Grantees, without adding anything to its earlier submissions. At para 7.6 and 7.7 the Native Title Party reiterates its submission that actions within the proposed tenements may interfere with areas or sites of particular significance outside of the proposed tenements. I accept that proposition as a possibility, but it has no present application, given that the Native Title Party has not identified any relevant area or site, within or outside of the proposed tenements, either by way of location or by reference to particular significance.
At paras 7.8 and 7.9, the Native Title Party responds to a submission that there are no RASs or OHPs disclosed in State records. I accept the Native Title Party’s submission that such absence is not conclusive for the purposes of s 237(b). However it reinforces my concerns about the failure by the Native Title Party to identify relevant areas or sites in ways which can be verified.
Concerning the question of interference, the Native Title Party submits that notwithstanding the indications given by the Proposed Grantees as to the exploration work which will be undertaken, there remains a risk of interference as a result of changed circumstances or changed opinions. However that submission has no real relevance, given the Native Title Party’s failure sufficiently to identify any relevant areas or sites. The Native Title Party asserts the risk of ground disturbance activity in the course of exploration, and the risk of intentional or unintentional entry to areas, access to which is forbidden other than to initiated men and women, or otherwise subject to gender restriction. These are matters which the Tribunal must consider. However it cannot do so where there is only inconsistent and equivocal evidence as to basic questions such as the locations of relevant areas and sites, whether within the proposed tenements or otherwise, and where no attempt has been made to demonstrate the reasons for asserting that such areas and sites are of particular significance in accordance with the Native Title Party’s traditions. It is not necessary that I say anything further concerning presumptions of regularity or the relevance of an extensive history of exploration within the proposed tenements.
At paras 8.17 to 8.22 the Native Title Party considers the endorsements and conditions to be imposed by the State, suggesting that it has not explained how such conditions and endorsements would mitigate interference of the kind contemplated by s 237(b). In effect, the Native Title Party also rejects the proposition that any RSHA would be of protective value. In view of my other findings, the issue is of little relevance.
At para 8.21 the Native Title Party observes that meaningful consultation and negotiation of an agreement, allowing for heritage surveys prior to the conduct of any exploration activities, would mitigate against interference of the kind contemplated by s 237(b). However it submits that save for applying subdiv P, there is no mechanism by which it can ensure that the Proposed Grantees will participate in such a process, or that such provisions will be enforceable under normal contractual principles. It submits that the Tribunal has no option other than to make a determination that the expedited procedure does not apply. As I have previously observed, the question for the Tribunal is not whether negotiation is desirable or necessary. Parliament has enacted s 237(b) as the basis for determining whether the expedited procedure applies.
At para 8.22 the Native Title Party asserts that the Proposed Grantees have not indicated that they will adopt a policy of allowing heritage surveys in advance of non-ground disturbing activities (as opposed to ground disturbing activities). The justification for this assertion is said to be that the nature of the relevant areas and sites makes it necessary that there be such surveys in order to avoid interference. The Native Title Party’s failure to provide evidence of the locations of relevant areas and sites, or as to their particular significance makes it unnecessary to take this matter further. In any event, as I have previously observed, the absence of any evidence of interference, as the result of previous exploration, suggests that unacceptable interference is unlikely.

CONCLUSION

I have already said more than enough about the inadequacy of the Native Title Party’s assertions concerning the existence and location of relevant areas and sites, and of its assertions concerning their allegedly particular significance. No doubt, its conduct of the matter has been significantly influenced by a desire to observe traditional requirements as to secrecy, particularly concerning gender-restricted matters. No doubt too, it is motivated by a desire to protect areas and sites from inappropriate exposure and possible damage. However it cannot seriously be suggested that s 237(b) contemplates an objection being upheld simply because the relevant native title party asserts, without more, that there are areas or sites which are of particular significance by virtue of such traditions, either within or outside of the proposed tenements. Parliament clearly intended that the Tribunal would consider these matters and make an informed decision.
There is certainly room, in that process, for according due respect to the traditional needs of the Native Title Party for confidentiality, and for the protection of areas and sites. Nonetheless, the Tribunal can only perform its functions by considering identified areas and sites, and evidence going to their significance. The Tribunal can, where necessary, provide protection against disclosure of sensitive material. However it seems that in the present case, the Native Title Party has not been inclined to seek such protection.
The balance of the Native Title Party’s contentions in reply deal with the AH Act and RSHAs. In view of the absence of any sufficient information concerning areas or sites of particular significance, there is no point in adding further to my earlier observations concerning those matters.
In the circumstances, I conclude that on the evidence, it is unlikely that the proposed grants will interfere with any areas or sites of particular significance in accordance with the traditions of the native title holders. I conclude that the proposed grants attract the expedited procedure, as contemplated in s 32(4).

The Hon John Dowsett AM, QC
President
3 December 2020