Evelyn Gilla, Rex Shay, William Shay and Winifred Gentle on behalf of Yugunga-Nya/Western Australia/Wayne Lawrence Allie - [2001] NNTTA 161

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla, Rex Shay, William Shay and Winifred Gentle on behalf of Yugunga-Nya/Western Australia/Wayne Lawrence Allie, [2001] NNTTA 161 (19 December 2001)

Application No: WO00/436

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

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

Evelyn Gilla, Rex Shay, William Shay and Winifred Gentle on behalf of Yugunga-Nya (native title party)
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The State of Western Australia (Government party)
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Wayne Lawrence Allie (grantee party)

REASONS FOR DETERMINATION

Tribunal:                   Mrs Jennifer Stuckey-Clarke, Member
Place:  Perth
Date:  19 December 2001

Catchwords: Native Title – future act – proposed grant of prospecting licence – expedited procedure objection application – an act which attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s.237, Aboriginal Heritage Act 1972 (WA), Mining Act 1978 (WA).
Cases:Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co. Ltd (1911) 12 CLR 398
Ward v. Western Australia (1996) 69 FCR 208

Cheinmora v Striker Resources (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467
Western Australia/Derrick Smith & Ors on behalf of the Gnaala Karla Boodja People/ South Coast Metals, WO99/511, unreported, Deputy President Franklyn, 23 June 2000
Smith v Western Australia [2001] FCA 19
Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia, DO00/1-DO00/7, unreported, Deputy President Franklyn, 23 April 2001
Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO00/92, unreported, Member Stuckey-Clarke, 25 June 2001
Albert Little on behalf of the Badimia People v. The State of Western Australia and Wildbeach Corporation Pty Ltd [2001] FCA 1706
Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/Allan Neville Brosnan/Western Australia, WO00/427, unreported, Mr John Sosso, 17 August 2001

REASONS FOR DETERMINATION

Background

By notice dated 27 October 2000 issued pursuant to s.29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the Government party”) advised its intention to grant prospecting licence 20/1837 (“the prospecting licence”) to Wayne Lawrence Allie (“the grantee party”). The prospecting licence is over an area of 3.02 hectares located 4 kilometres north east of Cue, in the Shire of Mount Magnet (lat. 27^o 24 minutes, long. 117^o 54 minutes). The notice explained that the grant of a prospecting licence authorises the applicant to prospect for minerals for a term of four years from the date of grant. The notice included the statement:
“the State of Western Australia considers that these acts are acts attracting the expedited procedure.”
The notification date was 1 November 2000.
On 2 November 2000, Evelyn Gilla, Rex Shay, William Shay and Winifred Gentle on behalf of Yugunga-Nya (“the native title party”) lodged with the Tribunal an objection (by way of Form 4 made pursuant to the Act and the Native Title Tribunal Regulations 1993) to the statement in the s.29 notice that the grant of the prospecting licence attracted the expedited procedure.
In paragraph 7 of Form 4, objectors are required to include a statement of reasons why the proposed act is not one attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activities of the native title holders, areas or sites of particular significance and any lands or waters concerned. The native title party provided in paragraph 7, the following statement:
“The grant of the prospecting licence will interfere with the many Aboriginal sites of significance in the area and constitutes a major disturbance to the land and to the claimant’s attachment (including spiritual attachment) to the land.”
Paragraph 8 of Form 4 requires objectors to outline the type of evidence that will be adduced before the Tribunal in support of the objection. The outline is as follows:
1)   Historical (including oral history)
2)   Anthropological
3)   Genealogical
4)   Linguistic
The native title party’s Application for Determination of Native Title (WC99/46) was registered by the Tribunal on 12 June 2000. The prospecting licence 20/1837 is situated on this claim area.
The Tribunal accepted the objection application on 8 March 2001. The Government, grantee and native title parties were notified of the objection and a preliminary conference was held on 21 March 2001.
The State lodged with the Tribunal a statement of its contentions on 11 May 2001 and a copy of the documents upon which it proposed to rely on 8 May 2001. The native title party lodged its contentions and affidavit evidence of Nicholas Paul Green, on 23 May 2001. The native title party lodged a further statement of contentions and affidavit evidence of Cedric Stileman Davies on 12 July 2001.
The grantee party was not in attendance for listing hearings convened on 6 June 2001 and 15 June 2001 nor for a listing hearing convened before Deputy President Sumner on 13 July 2001.
I was appointed as the Member to conduct the inquiry on 16 July 2001.
On 4 September 2001 the Tribunal wrote to the parties convening a further listing hearing on 13 September 2001. At that time an objection to the Tribunal’s jurisdiction challenging the validity of the s.29 notice issued by the State of Western Australia based upon the decision of the Tribunal in Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory, NNTT DO00/1-DO00/7, 23 April 2001, had been raised in another matter before me for determination (WO01/9). Since the objection had been raised in that matter, I convened a further listing hearing to ask whether any of the parties wished to raise any objection to the Tribunal’s jurisdiction in this matter.
Whether or not jurisdiction is contested, the Tribunal must satisfy itself that it has jurisdiction to conduct its inquiry on the basis of the evidence before it. In Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467 at 473 Carr J. followed the dictum of Barton J. in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co. Ltd (1911) 12 CLR 398 at 428:
“Where jurisdiction is disputed, adequate and careful inquiry is still the duty of the court at first instance, just as it may become the duty of the superior court.
On the other hand, where jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal, be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.”
At the Directions Hearing, the representative for the native title party in this matter requested an adjournment in order to obtain instructions on the question of jurisdiction. The Government party did not oppose an adjournment (the grantee party was not in attendance). In addition, the representative for the native title party sought leave to file further evidence in the form of affidavits sworn by members of the native title group.
Directions were set on 17 September 2001 for the matter to be adjourned to 19 October 2001 to enable instructions to be sought as to any objection to jurisdiction, and leave granted to the native title party to file and serve any further affidavits. The Directions Hearing was further adjourned at the request of the representative for the native title party on 21 September 2001 and directions amended so that the matter was adjourned to 29 October 2001, with any documents to be submitted on or before that date.
A Statement of Additional Contentions of Objectors was filed by the native title party on 25 October 2001. Affidavit evidence of Evelyn Gilla, Hazel Grace Little and Mavis Claudette Curley all sworn 24 October 2001, were also filed on 25 October 2001.
The Directions Hearing of 29 October 2001 proceeded with only the Government and native title parties present. The representative for the native title party stated that he had instructions not to challenge the Tribunal’s jurisdiction. Clarification was sought as to how all contentions and affidavits submitted throughout the proceedings were to be considered. Mr Davies confirmed that three sets of contentions, submitted to the Tribunal on 23 May 2000, 12 July 2001 and 25 October 2001, were to be considered separately in that none substituted for another.
Since no party has sought to demonstrate by evidence that the s.29 notice issued by the Government party in this matter was not issued and notified in compliance with the Act, there is, in my view, no sufficient evidential basis upon which the Tribunal could find that it lacks jurisdiction to determine this matter. I will therefore proceed to determine this matter on the papers.

The Evidence

The documents produced by the Government party disclose that there are no registered sites on the proposed tenement and that there are no Aboriginal communities in its vicinity. The documentary evidence of the Government party does not otherwise address the question of interference with community life within the meaning of s.237(a) of the Act, nor interference with areas or sites of particular significance within the meaning of s.237(b) nor does it deal directly with the question of major disturbance to the land or the creation of rights which involve such disturbance.
The grantee party led no evidence and took no part in the proceedings.
The native title party relies upon five affidavits. The first to be filed was the affidavit of Nicholas Paul Green sworn 23 May 2001. Mr Green deposes to being the “Director of Research” employed by the Yamatji Land and Sea Council (‘the YSLC’) and to having “responsibility on behalf of the YLSC for anthropological research within the Yugunga-Nya WC 99/46 native title claim area.” No evidence is led as to the nature of any qualifications Mr Green has as an expert witness or how long he has been employed by the YSLC in his present capacity. In the body of his affidavit he swears to the general practice of the native title party to withdraw any objection once the grantee party has agreed to fund an Aboriginal heritage survey of the proposed tenement area (paras 2-4) and that the grantee party has not so agreed (para 5). He then goes on to depose to his understanding of certain beliefs which the Yugunga-Nya people hold in general terms (paras 6-7, 11-14) and he also deposes to his belief that the Register of Aboriginal Sites is “unlikely” to be “an accurate record of all the sites of significance within the area the subject of the proposed tenement P20/1837 (para 8-10).
The second affidavit to be filed was the affidavit of Cedric Stileman Davies sworn 13 July 2001. This affidavit is substantially identical to the affidavit considered by Justice RD Nicholson in Albert Little on behalf of the Badimia People v. The State of Western Australia and Wildbeach Corporation Pty Ltd [2001] FCA 1706 at [58] (“Albert Little”) in the appeal from Deputy President Franklyn’s decision in relation to that objection and to the affidavit considered by Member Sosso in Kevin Peter Walley & Ors on behalf of the Ngoonooru Wadjari People v. the State of Western Australia and Allan Neville Brosnan W0 00/427, NNTT, 17 August 2001(“Walley”). Suffice to say, it asserts that certain activities will be permitted if the tenement is granted, namely “Reverse circulation drilling in areas of hypersaline groundwater”, “diamond (core) drilling” and “the excavation of up to 500 tonnes of material” and goes on to describe the effects on land of such activities.
There were three further affidavits filed by members of the Yugunga-Nya claim group, Evelyn Gilla, Hazel Grace Little and Mavis Claudette Curley, all sworn on 24 October 2001 and all in identical form, swearing relevantly that they have read and understood Mr Davies’ affidavit and believe “that conduct of these activities in within (sic) the proposed tenement area will involve a major disturbance to land” (para 5).
It should be noted that leave was given to file these three affidavits after Member Sosso handed down his determination in Walley on the basis that the native title party sought to address the comments made in relation to the evidence of Mr Davies and the contentions made therein as to s.237(c) at [57] of the determination. Further, it should be noted that the filing of this evidence was delayed because of delays occasioned by the YLSC in convening a meeting of the claim group to authorise the deponents to give the evidence on behalf of the group.

Reasoning

Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)        the act is not likely to interfere directly with the carrying out of the community or social activities of the persons who are holders …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…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.”
Both the Government party on 11 May 2000 and the native title party on 23 May 2001 filed Statements of Contention which were in substantially identical form to those filed in Walley. In paragraphs [12] - [28] of his determination in Walley, Member Sosso deals with the contentions of law set out in those contentions and I adopt his reasoning and conclusions as to the relevant legal principles relating to the nature of the predictive assessment which the Tribunal is required to make about the likelihood of the act in question, namely the granting of the proposed tenement, having any of the consequences set out in paragraphs (a)-(c) of s.237 and note that in Albert Little at [68-72] Justice RD Nicholson said, following the view of French J. in Smith, that:
“68. Whether the grant of the relevant exploration licence would in each case have been an act attracting the expedited procedure depends upon the tests set out in pars (a), (b) and (c) of s237 of the Act. As has been seen above, each of these tests depends upon whether the act of granting the licences would have been “likely” to have certain consequences……..[69] I agree with French J. in Smith on behalf of the Gnaala Karla Boodja People v State of Western Australia [2001] FCA 19 at [23] that the effect of the amending act is that the Tribunal is required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars. (a), (b) or (c) of s 237 so that a predictive assessment is involved being one not confined to a consideration of the legal rights conferred by the grant of the proposed tenement [70]. In Smith at [23], French J also held that consistently with the objects of the Act, the word ‘likely’ requires risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s.237….He therefore did not accept that the term “likely” was directed to a judgement on the balance of probabilities as to interference or major disturbance…..[72]. In his judgment, French J. set out the amendments to s237 of the Act and the explanatory memorandum. I agree with the submission for the applicants that neither of these compel the conclusion that the word “likely” in s237 means more probable than not. Having examined the authorities relied upon by French J – namely Tillmanns Butcheries and Jungarrayi – I consider that the decision reached by him should be followed”.
Further I adopt the reasoning of Member Sosso in the passages cited above in respect of the relevance and weight to be accorded to the failure or otherwise of the grantee party to lead evidence of its present intentions in respect of the exercise of its rights under the proposed grant and the adoption of the presumption of regularity, especially at [22] – [24] and any refusal or failure of the grantee party to participate in an Aboriginal heritage survey at [27]. The native title party invited me to draw certain inferences in its first Statement of Contentions filed 23 May 2001 at paragraphs 4 - 10 and for the same reasons as Member Sosso gave in Walley I decline to draw the inferences adverse to the grantee party.
Finally, I reiterate the view I expressed in Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO00/92, 25 June 2001 at [21] that the only relevant interference under s.237(a) must be acts likely to interfere directly with the physical conduct and physical manifestations of community and social activities of the native title holders on the land of the proposed tenement.
So far as s.237(b) is concerned, the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holders in accordance with tradition: Cheinmora v. Striker (1996) 142 ALR 21 at [34-5] per Carr J. Deputy President Franklyn has held that the areas or sites must be “capable of identification” and that their significance to the holders of native title of areas or sites must be established on the evidence. It will usually be the case that evidence relating to particular significance will usually be peculiarly within the knowledge of the native title party and although the Tribunal takes a common sense approach to evidence and questions of burden of proof are not determinative, as Carr J. held in Ward v. Western Australia (1996) 69 FCR 208 at [217]:
“Where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the Administrative Tribunal applies its commonsense approach to evidence.”
Thus, absent documentary evidence (for example, the Register of Sites), evidence of the existence and particular significance of relevant sites will be peculiarly within the knowledge of the native title party.
So far as s.237(c) is concerned, the requirement of “major disturbance” was considered by the Full Court of the Federal Court in Dann v. Western Australia (1997) 74 FCR 391. The Full Court held that the words should be construed in their ordinary meaning as those word are understood by the whole of the Australian community but giving due weight in each particular case to the views of people in the local area, including the native title holders.

Section 237(a)

The Government party contended in paragraph 4 of its Contentions that the grant of the proposed tenement was not likely to interfere directly with the carrying on of the community or social activities of the native title party in relation to the land because:
“(a)There were no Aboriginal communities situated on, or in the vicinity of, the proposed tenement

Reserve

(b)in relation to the land the subject of Reserve 7273, section 24 of the Mining Act 1978 provides that mining on reserve land requires the written consent of the Minister for Mines who may refuse his consent or give his consent subject to such terms and conditions as specified in the consent;
(c)before giving his consent the Minister must, pursuant to subsections 24(3)-24(7) of the Mining Act, consult with and obtain either the concurrence or the recommendation of the Responsible Minister or the Responsible Minister and the body or person in which the control and management of the reserve is vested;

(d)section 26 of the Mining Act provides for terms and conditions that may be imposed pursuant to section 24 of the Mining Act by the Minister for Mines on the consent for mining; and
(e)section 46 of the Mining Act deems every tenement of the type proposed to be granted subject to the holder fulfilling certain conditions set out in the said section, i.e. reporting discoveries of minerals, making safe any holes, pits, trenches, etc, and preventing damage to property and livestock.”

That native title party made its main contentions in paragraphs 13 and 14 of its Contentions filed 23 May 2001 which were as follows:
“13.The grant of P20/1837, without clearance from the objectors is likely to cause spiritual and emotional distress thereby interfering directly with the carrying on of the community and social activities of the objectors. The act is likely to directly interfere with the carrying on of the community and social activities of the objectors in a non-physical sense, in addition to any direct physical interference that may occur.
14.The activities of the grantee party will impact negatively upon the flora and fauna in the area and will thereby interfere directly with the carrying on of the community and social activities of the objectors, namely hunting, gathering and associated activities.”
The evidence adduced by the native title party does not directly contradict the Government party’s evidence that there is no Aboriginal community in the vicinity of the proposed tenement. There is general and non-specific evidence given by Mr Green that the Yugunga-Nya people are the traditional owners of land which encompasses the area covered by the tenement (para 4) and that “the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment is upsetting to the Yugunga-Nya community and causes distress to members of that community” (para 14). However, Mr Green has failed to qualify himself as an expert anthropologist having given no detail as to his academic or other qualifications as an anthropologist or any details as to the period of time for which he has been employed by the YLSC as “Director of Research”. However, I accept that he is an expert witness of credibility since no objection was taken to his evidence being relied upon by the Government or grantee parties and his position itself is indicative of expert status as an anthropologist.
In any event, no evidence at all has been led which indicates that any specific community or social activities are in fact carried out by the native title party on the area of the proposed tenement so that the issue of whether any such activities will be interfered with does not arise. I agree with Member Sosso’s comments in Walley at [36 - 37] about the unhelpfulness of the native title party choosing not to place before the Tribunal any direct evidence of such basic factual matters and relying solely upon evidence given by their legal or other representatives.
I conclude therefore that there is insufficient evidence upon the basis of which the Tribunal could hold that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title in relation to the land or waters concerned.

Section 237(b)

The Government party contended that the grant of the tenement would not be likely to interfere with areas or sites of particular significance because:
“(a)the Aboriginal Heritage Act 1972 applies to the land, and provides protection for Aboriginal areas or sites as defined in section 5 of the Act, of particular significance to the land;
(b)section 18 of the Aboriginal Heritage Act provides that the grantee party must have the consent of the Minister for Aboriginal Affairs before using the land for any purpose which would result in a breach of section 17 of the Act. Section 17 makes it an offence inter alia to excavate, destroy or damage or conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site; and
(c)the grant of the proposed tenement will include an endorsement that the grantee party’s attention be drawn to the provisions of the Aboriginal Heritage Act.”
The native title party contended at [17-20] of its contentions filed 23 May 2001 that:
“17.The protection afforded by section 17 of the (WA) Aboriginal Heritage Act 1972 covers only sites under the terms of that Act. The mechanisms set out in that Act which provide that the grantee party must have the consent of the Minister before using the land for any purpose which would result in a breach of section 17 of the Act, do not require that any holders of native title be consulted.
18.The (WA) Aboriginal Heritage Act 1972 gives the Minister power to override the protections otherwise afforded by the Act by consenting to the damage or destruction of sites of significance. That Act therefore cannot be relied on to provide protection for sites.
19.The protection against interference provided by legislation such as the (WA) Aboriginal Heritage Act 1972 does not require the NNTT to conclude that the prospect of interference to a site of significance is removed by the application of a presumption that the law will be observed by the grantee party: Ward v. State of Western Australia & Anor, supra at 24.
20.The Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers, issued by the Department of Minerals and Energy to tenement applicants, are advisory only and are inadequate to protect the rights and interests of native title holders.”
Mr Green in his affidavit deposes that on the basis of his experience as Director of Research and the YLSC (although the temporal extent of that experience is not deposed to), it is his opinion that the Register of Aboriginal Sites is unlikely to be an accurate record of all the sites of significance within the area of the proposed tenement (para 7) and that recording of sites, usually done in response to mining activity etc., is not usually done after the whole area has been surveyed and is unlikely to be complete (para 8). At paragraph 13 he says:
“Although all of the land is special to Yugunga-Nya people, some parts of the land are particularly significant. Such sites occur with frequency and it is likely that the land in question contains such sites of particular significance.”
Even accepting Mr Green’s opinion that the Register of Sites may not be a complete record of sites on the area of the proposed tenement, there is before the Tribunal in this matter no evidence of any specific site or area, still less of a specific site or area of particular significance in the relevant sense. The comments made by Member Sosso in Walley at [43-45] are equally apposite in this case:
“[43] In this case there are no sites registered under the Aboriginal Heritage Act 1972 in the area of the proposed tenement. Moreover the native title party has not identified any sites or areas of particular significance. The absence of any such information could lead to an inference that the native title party is unaware of any such site or area of particular significance on the proposed tenement.
[44] The inquiry demanded of the Tribunal under paragraph (b) is whether there is an area or site of particular significance to native title holders in accordance with their traditions which the proposed future act is likely to interfere with. It is not to the point for an objector to highlight that the Register of Aboriginal Sites is not exhaustive and that sites of significance may well exist on the proposed tenement.
[45] In my opinion it is a condition precedent for an inquiry under paragraph (b) that an objector bring to the attention of the Tribunal an area or site which it is alleged is of particular significance within the meaning of the Act. In the absence of such material the Tribunal would be left undertaking a speculative exercise based on generalities and suppositions.”

Finally, Justice RD Nicholson in AlbertLittle at [77] arguments similar to those raised by the native title party’s contentions and concluded:
“For the applicants it is submitted therefore that the Aboriginal Heritage Act does not provide unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s. 18 to permit a breach of s.17 may occur in the circumstances where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect of the sections in the Aboriginal Heritage Act. In other words the chance of such interference is not real and is remote in these circumstances.”The Tribunal is bound by this decision and is bound not to accept the contentions of the native title party set out in paragraphs 17-20 of the Contentions filed on 22 May 2000.”
I conclude therefore that there is insufficient evidence on the basis of which I could find that the grant of the tenement would be likely to interfere with sites or areas of particular significance within the meaning of s.237(b) of the Act.

Section 237(c)

The Government party contended at [6] of its contentions:
“The government party contends that the grant of the proposed tenement is not likely to involve major disturbance to the land or create rights whose exercise is likely to involve major disturbance to land, as the grantee party, acting lawfully in the exercise of the rights given to it by the proposed tenement, will not cause a physical disturbance to the land which consititiutes a major disturbance by the standards of the whole Australian community.”
The Government party also referred to the deemed conditions on the proposed tenement pursuant to section 46 of the Mining Act and to the Schedule of Endorsements/Conditions to be attached to the proposed prospecting licence.
The native title party’s contentions filed on 23 May and 13 July 2001 and the affidavits of Cedric Davies and Nicholas Green were in substantially identical form to those filed by the native title party in Walley. I agree with and adopt for the purposes of this determination the observations made by Member Sosso in Walley at [48-56] and [58-60] in respect of those contentions and the affidavits of Cedric Davies and Nicholas Green.
In Walley, Member Sosso concluded in respect of those contentions and the evidence of Cedric Davies and Nicholas Green at [57] and at [59-62]:
“[57]     If those contentions had been supplemented by actual evidence of objectors or evidence specific to the proposed tenement they would have been of considerable assistance to the Tribunal. As it is, however, the Tribunal has been presented with no original evidence at all. The Tribunal has not been presented with specific material relating to the area of the proposed tenement ( ie. Whether there are any geological , environmental or other factors that could be said pose a real risk of major disturbance should exploration activities occur), or aboriginal communities in the vicinity of the proposed tenement or the specific concerns of native title holders on how the exploration activity will impact on their life, customs or tradition.
…
[59]       After the Full Court decision in Dann, the Tribunal in approaching its task pursuant to paragraph (c) has evaluated whether major disturbance has occurred from the viewpoint of the general community, but taking into regard its effect on local people. In that regard the concerns of Aboriginal people in the locality are important, and the Tribunal has regard to ‘matters such as community life, customs, traditions and cultural concerns.” Dann v. Western Australia (1997) 74 FCR 391 at 401 per Tamberlin J.
[60]       The only evidence of any general assistance in this regard in the Affidavit of Mr Green who sets out in a very general sense certain beliefs of the Ngoonooru Waadjari People. While the Tribunal has before it legal contentions by Mr Ritter and general geological material from Mr Davies, in reality the material does not provide much assistance to the Tribunal in its first task in this regard, namely evaluating the impact of the proposed exploration activity on the relevant land and waters from the viewpoint of the local people.
[61]       The government party has submitted its standard material on the steps it will put in place to ensure that there is not major disturbance. There is no specific evidence of any sensitive geological or environmental matters in the area of the proposed tenement. There is no evidence of any Aboriginal people in the immediate vicinity. There is no direct evidence of the specific concerns of the objectors with respect to major disturbance. There is no evidence of anything other than standard exploration activities that will occur.”…
I agree that the specific factors outlined by Member Sosso are relevant factors to be taken into account when the question of major disturbance is being assessed and I also agree that the specific concerns of any local Aboriginal people are likely to be matters peculiarly within the knowledge of the native title party and that if they do not lead any evidence, an adverse inference may be drawn: Walley at [63].
After the determination in Walley was handed down, on the application of the native title party I granted leave to file further contentions and affidavit evidence from the native title party which I was told would address the specific matters Member Sosso had adverted to in Walley, especially at [57]. Those further contentions and the affidavits of Hazel Grace Little, Mavis Claudette Curley and Evelyn Gilla were filed on 25 October 2001. I accept that each deponent was duly authorised and qualified to speak for the native title claim group because I was informed that the evidence was taken after an authorisation meeting was held with the native title group and that their evidence is to be given appropriate weight and is not simply to be given the weight of an individual member of the Yugunga-Nya People: c.f. AlbertLittle at [78-79] per RD Nicholson J.
However, their evidence which is in identical form and substance simply amounts to an assertion that having understood the matters already deposed to by Mr Davies, they believe that conduct of the prospecting activities will involve a major disturbance to land. Although the affidavits deposed to their belief that the grant of the tenement will cause major disturbance, there is no evidence of any specific concern of the local Aboriginal people giving rise to that belief other than having understood the matters set out in Mr Davies’ affidavit. On one view, what they are deposing to is a belief as to a conclusion of law, nevertheless, I accept their evidence as evidence of a truly held belief. Further, none of the factors enumerated by Member Sosso in Walley, such as community life, customs, traditions and cultural concerns have been addressed with any specificity so far as those matters relate to the specific area in order to enable me to take those factors into account in assessing whether the effect of the prospecting activity on the land is likely to cause major disturbance to land within the meaning of s.237(c).
Therefore, on the basis of the evidence before me, I conclude that the exercise of the rights conferred by the prospecting licence could result in some disturbance to land in the area of the proposed tenement. However, having regard to the nature of the conditions and regulatory regime which would apply to the exercise of the prospecting licence when granted, the fact that there is no Aboriginal community in the vicinity of the proposed tenement and no evidence of any community or social activities on the land of the proposed tenement, I find that the grant of the prospecting licence 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 such lands or waters.

Determination

The determination of the Tribunal is that the grant of prospecting licence 20/1837 to Wayne Lawrence Allie is an act which attracts the expedited procedure under the Native Title Act 1993.

J. Stuckey-Clarke

Member

19 December 2001