HL (Name witheld for cultural Reasons) and Others (Warrwa #2) v 142 East Pty Ltd - [2014] NNTTA 49

NATIONAL NATIVE TITLE TRIBUNAL

HL (Name witheld for cultural Reasons) and Others (Warrwa #2) v 142 East Pty Ltd [2014] NNTTA 49

Application No: WO2013/0537

IN THE MATTER of the Native Title Act1993 (Cth)

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

(Name withheld for cultural reasons) and Others (Warrwa #2) (WC2012/009) (native title party)

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The State of Western Australia (Government party)

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142 East Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  20 May 2014

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

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

Cases:Crowe and Others v Western Australia and Another (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL [2010] NNTTA 99 (‘Tucker v Image Resources’)
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150 (‘Jango v Northern Territory of Australia’)
Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (‘Yi-Martuwarra Ngurrara, Kurungal and Gooniyandi v Western Australia’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (Tullock v Allarrow’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (‘Mark Lockyer v Mineralogy’)
The Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (‘Miriuwung Gajerrong 1 v Western Australia’)
Neowarra v State of Western Australia [2003] FCA 1402 (‘Neowarra v State of Western Australia’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock and Others v Western Australia and Another (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Walley v Western Australia, (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representative of the
native title party: Ms Kylie Panckhurst, HopgoodGanim

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

Representative of the
Grantee party: Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

On 30 January 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E04/2237 (‘the proposed licence’) to 142 East Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The s 29 notice describes the proposed licence as comprising 70 graticular blocks (approximately 228 square kilometres) with a centroid of 17^o 37’ S, 124^o 13’ E, located 72 kilometres south-easterly of Derby, in the Shire of Derby-West Kimberley.
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any person who, four months after the notification day, is a registered native title claimant in respect of the relevant land or waters (see s 29(2)(b)(i), s 32(3) and s 30(1) of the Act). (If there is no registered native title claimant when the s 29 notice is given, the application containing the native title claim must be filed sometime before the end of three months after the notification day included in the s 29 notice (see s 30(1)(a)(i)). The notification date for this matter was 30 January 2013. The three month period for filing a native title claim was 30 April 2013. The four month period for lodgement of objections was 30 May 2013.
The northern portion of the proposed licence is predominately overlapped by the Warrwa #2 native title claim (WC2012/009 – registered from 9 November 2012) at 60.8 per cent. The southern portion and a north-westerly portion of the proposed licence are overlapped by the Nyikina and Mangala native title claim (WC1999/025 – registered from 28 September 1999) at 38 per cent. A northerly portion of the proposed licence is overlapped by the Warrwa native title claim (WC2010/012 – registered from 13 October 2010) at 1.2 per cent.
The native title Applicants for each of the native title claims overlapping the proposed licence lodged objection applications with the Tribunal - the Warrwa objection on 21 February 2013, the Warrwa #2 objection on 23 May 2013, and the Nyikina Mangala objection on 30 May 2013 (designated Tribunal objection applications WO2013/0194, WO2013/0537 and WO2013/0557 respectively).
On 24 October 2013 the legal representative for the Nyikina Mangala native title claim advised via email that they had been instructed to withdraw objection application WO2013/557 ‘due to lack of evidence for Inquiry’ and the objection was withdrawn. In relation to objection application WO2013/194, the grantee party advised via email on 17 October 2013, it would excise the portion of the proposed licence overlapping the Warrwa native title claim. On 1 April 2014, the Government party confirmed the excision had been processed and on 14 April 2014, objection application WO2013/0194 was withdrawn.
No other native title claim was filed, or objection lodged, in respect of the proposed licence, and as such, the native title party with respect to these proceedings, being objection application WO2013/0537, comprises the native title Applicant for the Warrwa #2 native title claim (WC2012/009).
On 25 June 2013, a preliminary conference was held at which the native title party representative advised they would forward their preferred heritage agreement to the grantee party representative for consideration. At the second conference, on 30 October 2013, the grantee party representative advised they had not obtained ‘firm instructions’ and requested a two week adjournment. On 13 November 2013, a third conference was held, and the grantee party representative advised the grantee party wished for the matter to proceed to an inquiry before the Tribunal. On 15 November 2013, I set directions for the inquiry.
The Government party initial evidence was received on 16 December 2013 through the Department of Mines and Petroleum (‘DMP’), and the native title party submissions on 13 and 14 January 2014. The native title party submissions included the affidavits of Ms Glenys Lennard, Ms Patricia Juboy and Mr Nicholas Green, each sworn on 13 January 2014, and a request that the affidavits not be released to any party without the native title party’s written permission. On 21 January 2014, after further consultation with the native title party, I made s 155 non-disclosure directions in relation to the affidavits. The affidavits were then released to the grantee and Government parties subject to the non-disclosure directions. No party objected to this course of action.
The directions for the inquiry were amended to allow the grantee and Government parties the opportunity to consider the native title party affidavits and lodge their submissions, and for the native title party to reply. In accordance with the amended directions, the grantee party lodged its submissions on 5 February 2014 and the Government party lodged theirs on 11 February 2014. On 12 March 2014, following a request for an extension, the native title party lodged its contentions in reply and the affidavit of their legal representative Ms Kylie Panckhurst, sworn12 March 2014.
On 14 March 2014, each of the parties confirmed via email that they did not intend to make further submissions, and agreed the matter could proceed to be heard ‘on the papers’ in accordance with s 151(2) of the Act. On 20 March 2014, the Government party submitted a reply to the native title party reply, requesting that it be accepted. I sought the comments of other parties to this course of action. Both the grantee and native title parties advised they would make no further submissions or comments. I accepted the Government party reply.
A map prepared by the Tribunal’s Geospatial services was circulated to parties on 3 April 2014, and no party objected to the Tribunal using the map in the course of this inquiry.
I have reviewed the material before the Tribunal and I am satisfied the matter can be adequately determined proceed ‘on the papers’, in accordance with s 151(2)(b) of the Act.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

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

In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21].

Evidence in relation to the proposed act

The Government party provided the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the proposed licence application;
·A Draft Tenement Endorsements and Conditions Extract; and
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:
·Meda Pastoral Lease 3114/594 overlapping at 84.3 per cent;
·Blina Pastoral Lease 3114/1271 overlapping at 14.8 per cent;
·General Lease I150242 overlapping at 0.9 per cent; and
·Historical Lease 396/450 overlapping at 81.9 per cent.
The quick appraisal notes the following current and pending petroleum tenure;
·Petroleum Production Licence L 8 R1 overlapping at 21.6 per cent;
·Petroleum Exploration Permit EP 129 R5 overlapping at 1.4 per cent;
·Petroleum Production Licence L 17 overlapping at 1.2 per cent; and
·Petroleum Exploration Permit Application 5/07-8 EP overlapping at 75.7 per cent.
The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:
·2 surrendered exploration licences held from 2006 to 2007 and 2010 to 2012, respectively, each overlapping the proposed licence at 100 per cent;
·2 surrendered exploration licences held from 1986 to 1990 and 2002 to 2003, respectively, overlapping the proposed licence at 1.6 and 2.9 per cent respectively;
·37 surrendered or cancelled mineral claims, held between 1979 and 1982, overlapping the proposed licence between <0.1 and 0.5 per cent; and
·3 cancelled temporary reserves, one held from 1920 to 1921 overlapping at 100 per cent, one from 1965 to 1966 overlapping at 100 per cent, and one during 1966 overlapping at 99.9 per cent.
This suggests there is likely to have been some recent exploration activity over the proposed licence as a whole, and petroleum production over almost a quarter of the proposed licence.
The quick appraisal indicates the proposed licence contains the following services:
·three tracks;
·a fence line;
·three wells or bores;
·a non perennial lake;
·a non perennial major watercourse;
·26 non perennial minor watercourses (one named as Norman Creek); and
·a waterhole.
The report from the DAA Database shows no registered sites or heritage places within the proposed licence.
According to mapping prepared by the DMP and the Tribunal, there do not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]) and two standard conditions imposed for licences overlapping pastoral or grazing leases. These are:
1.     All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion;
2.     All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP;
3.     All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program;
4.     Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.     The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.     The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1.     The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.     The Licensee’s attention is drawn to the provisions of the:
·Water Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4.     The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.     The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.     The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.     Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway; and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
8.     The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
9. The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.

The Government party reply indicate it intends to impose a condition requiring the grantee party to enter into a Regional Standard Heritage Agreement (RSHA) with the native title party if requested (‘RSHA condition’), in the following terms:
In respect of the area covered by the licence, the licensee, if so requested in writing by the Warrwa #2 People, the applicants in Federal Court application No. WAD258/12, such request being sent by pre-paid post to reach the licensee'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 Warrwa #2 the Regional Standard Heritage Agreement ("RHSA") endorsed by peak industry groups (e.g. the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHA) and offered to the Grantee Party by the Native Title Party.

Submissions of the native title party

The submissions of the native title party include: the affidavits of Ms Glenys Lennard, Ms Patricia Juboy and Mr Nicholas Green, each sworn on 13 January 2014; a statement of contentions; a reply to the Government and grantee parties; and the affidavit of their legal representative Ms Kylie Panckhurst, sworn 12 March 2014.

The native title party contends grantee party activities on the proposed licence are likely to:
·interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land concerned;
·interfere with areas or sites of significance to the persons who are the holders of the native title in relation to the land or waters concerned; and
·involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In support of these contentions, the native title party relies on the affidavits of Ms Lennard, Ms Juboy Mr Green and Ms Panckhurst. I accept Ms Panckhurst is a native title party legal representative. Ms Juboy is one of the persons comprising the native title party Applicant and Ms Lennard describes herself as an elder for the native title party. I accept they have authority to speak on behalf of the native title party for the country which is subject to the proposed licence.
In his affidavit, Mr Green states he is the 'officially endorsed anthropologist for the Warrawa #2 native title claimants'. Mr Green states that he is an anthropologist and archaeologist with 33 years experience, including being a 'past Registrar of Aboriginal Sites responsible for the administration of the Aboriginal Heritage Act (1972)'. He states he is the 'officially endorsed anthropologist for the Warrawa #2 native title claimants'.
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and support the Tribunal’s acceptance of it. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work is probative (see Neowarra v State of Western Australia at [388]). And that this is particularly so when it accords with the native title party evidence. For example, in Jango v Northern Territory of Australia (at [291]-[292]), the Court outlined:
It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist’s evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people.
Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps.
Mr Green states Ms Lennard 'has been consulted' and some clarity around that consultation process may have assisted in this matter. I note his affidavit outlines that collecting evidence in this matter was difficult due to a recent death in the native title party, and I appreciate the problems this would have caused in relation to providing evidence. Mr Green’s evidence has not been challenged by other parties, apart from his reliance on 'predictive modelling' which is dealt with later in this decision. I accept his sworn evidence in support of the native title party contentions.
No request was made for Ms Panckhurst's affidavit to be covered by non disclosure directions. In relation to the three other affidavits, I was satisfied that they contained culturally sensitive information. On 21 January 2014 I made directions pursuant to s 155 of the Act, restricting the disclosure of that evidence to the parties to the inquiry, their legal representatives, the Tribunal Member conducting the inquiry and staff assisting the Tribunal.
For the affidavits subject to non-disclosure directions, I do not intend to reproduce large parts of those documents in these reasons. However, as I specified in the directions, they do not prevent me from appropriately explaining the reasons for my decision, and I am required to set out the findings of fact upon which any inferences have been drawn and identify the source of those findings (see Crowe v Western Australia at [35] and s 162(2) of the Act).Notwithstanding my obligation to disclose the findings on which my decision is based, I acknowledge the native title party’s desire, and other parties’ agreement, to limit the disclosure of culturally restricted information, and I discuss the contents of those documents only to the extent necessary to support my conclusions.

Submissions of the grantee party

In summary, the grantee party makes the following contentions:
·The native title party’s claim overlaps 60.8 per cent of the proposed licence and the area of the proposed licence covers ‘a very small area’ relative to the native title party’s claim area (at 1 and 41);
·The proposed licence is overlapped by two pastoral leases, Meda and Blina, a general lease and 43 previous mining tenements (at 45);
·The native title party provides no evidence ‘as to how many people access the tenement area, the frequency..., the proportion of the Tenement that is so utilised, or whether the activities that take place are so specialised that they are unable to be conducted in other areas of the Claim’ (at 32);
·The activities described by the native title party ‘are of such a nature to be able to co-exist with the rights proposed to be granted to the native title party’ (at 33);
·The proposed exploration activities are limited to the usual activities associated with exploration licences, including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys. These activities are not likely to involve major disturbance to any land or waters, or create rights whose exercise is likely to involve major disturbance to any land or waters (at 38);
·The proposed exploration activities are of a low-level and temporary nature and that any interference with community or social activities will not be substantial (at 39);
·Given current and previous tenure over the proposed licence, it is likely that any community or social activities are already subject to these, or coexist (at 44-46);
·There are no Aboriginal communities situated on the proposed licence;
·There are no registered Aboriginal sites located on the proposed licence;
·The grantee party is willing to enter into a RSHA with the native title party, is aware of its obligations under the AHA, has never been prosecuted and as such believes its attitude towards the protection of Aboriginal heritage should be taken into consideration by the Tribunal (at 12-21);
·The native title party does not provide sufficient evidence of the location of sites within the proposed licence or provide details of the interference likely to occur (at 75);
·The evidence of Mr Green does not identify specific sites within the proposed licence or likely interference with these sites, and is based on ‘predictive modelling’ rather than specific knowledge of the proposed licence (at 80-84); and
·Major disturbance to land or waters is not likely, taking into account the current and previous tenure, the conditions and endorsements proposed by the Government party, and the existing wider regulatory regime (at 87).

Considering the Evidence

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

The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smithv Western Australia at [23]).
My assessment of s 237(a) must be contextual, taking into account factors that may already have impacted on the native title party’s community or social activities (such as mining or pastoral activity) (see Smithv Western Australia at [27]).
The native title party contends Ms Lennard’s affidavit evidences younger members of the native title party continue to frequent the proposed licence area, hunt animals, gather seeds for foods and medicines, and engage in cultural practices relating to marking some of the vegetation (at 21).
Ms Lennard deposes that a number of bores and a creek, all of which are named, have long been used by members of the native title party as places to camp and for hunting. According to Tribunal mapping, part of the creek and one of the bores are located within the proposed licence. She also deposes the area was and remains a traditional hunting ground for the native title party. However, neither Mr Lennard’s affidavit, nor the other affidavits submitted by the native title party identify, with any particularity, the numbers of people involved, or the frequency of the community or social activities, such as hunting and camping. I also note there do not appear to be any Aboriginal communities in the area. Although the proposed licence/claim area overlap is of a significant size (approximately 138 square kilometres), there is nothing in the evidence which suggests such activities are not done, or could not be done, outside the overlap area. The total area of the native title party claim is approximately 6898 square kilometres. Consistent with previous Tribunal decisions, including the Hon C J Sumner’s reasoning in Tuckerv Image Resources (at [27]), I find the size of the proposed licence/claim overlap area in the context of the much larger native title claim area makes it less likely that exploration activity will interfere with community or social activities as described by the native title party.
With reference to the practice of marking trees, as described by Ms Lennard, it appears this activity occurs on certain trees, and was also undertaken by ancestors of the native title party. As such, while I have looked at this as an activity under s 237(a), some of these trees may also be sites of significance or particular significance to the native title party, and will be addressed under s 237(b) below. The grant of the proposed licence will be subject to the Government party’s RSHA condition which in this matter allows the native title party to choose the RSHA it prefers – from either the South West, Pilbara/Geraldton, Goldfields or the Central Desert regions. I have considered each of these RSHAs and note that all require the grantee party to notify, consult and, if necessary, carry out surveys with the native title party. I conclude that each of the RSHAs provide for consultation prior to the removal of the marked trees, and the grantee party is aware (through the affidavit evidence) of the specific species of tree involved in that marking process.
Specifically, the Central Desert RSHA requires surveys to be undertaken if ground disturbing works are contemplated in any area not previously subject to a survey under the RSHA. The definition of ground disturbing works includes vegetation clearance. The Pilbara/Geraldton RSHA requires no survey only if: low impact exploration is undertaken by the grantee party; parties agree; the native title party waives all or part of its rights under the agreement; or a heritage survey has already been conducted in the area. The South West RSHA requires the grantee party to issue a survey request to the native title party should ground disturbing works be contemplated.
The Goldfields RSHA requires parties to consult with each other to decide which areas require a survey. If the grantee party intends to conduct a low impact activity, it may elect a site avoidance survey or a site identification survey without cultural detail. If it intends to conduct more significant activity, then a sites identification survey without cultural detail is required.
The native title party also contends the grant of the proposed licence will directly impact their rights and responsibilities under traditional law and custom to decide who enters their country and to care for the land (at 22). While I accept the native title party may have deep spiritual concerns about their rights and responsibilities, there is no specific evidence from the native title party detailing these rights and responsibilities, and how they may be impacted as a result of the grant. With reference to the legal principles applied in this matter (as outlined above), the Tribunal’s approach in relation to s 237(a) is referred to in Silver v Northern Territory at [49]-[62], Walley v Western Australia at [13]-[21] and Tullockv Western Australia at [66]. The Tribunal has, on numerous occasions, held that there must be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted. The emotional or spiritual concerns of some individuals must be linked to a community or social activity that could be interfered with in a physical way. To this end, I accept the Government and grantee party contentions, (at 33 and 27 respectively, citing Silver v Northern Territory at [49]-[62]), that spiritual activities are within the scope of s 237(a) only when rooted in physical activities.
Both the Government and grantee party submit that current and previous tenure over the area suggests the community and social activities of the native title party already coexist with other lawful interests within the proposed licence area, and have done so for a period of time. I agree that the underlying tenure outlined in DMP documentation supports this submission. The proposed licence is subject to Blina and Meda pastoral leases, a general lease, two petroleum production licences, and has also been subject to recent exploration licences.
Mr Green states ‘there is a high probability of the presence of Aboriginal sites of significance to the Warrwa people’ in the claim/proposed licence overlap. He suggests he has deduced that would include:
a)Waterways (and names one referred to by Ms Lennard and Ms Juboy);
b)A dreaming track;
c)Scarred trees;
d)Good areas for hunting; and
e)Significant areas of ground.
While each of these areas are referred to very generally by Ms Lennard and Ms Juboy, there is not sufficient information to indicate activities of the grantee party would interfere with any social or community activities associated with these features. These features are also dealt with in reference to s 237(b) below (apart from hunting areas which are relevant only to s 237(a)).
In addition, Mr Green concludes that he believes hunting and resource procurement will be affected through disturbance of flora and fauna by grantee party activities, but again, does not provide any detail in relation to the activities or interference.
I have considered the nature of the activities evidenced by the native title party and also the prior and current interests held by various third parties in relation to the proposed licence area. I also note the activities to be carried out by the grantee party will be exploratory in nature. In relation to these points, I accept past and present pastoral, petroleum and mining exploration activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already, to some extent, have interfered with the native title party’s community and social activities (see Tullock v Western Australia at [122]).
Based on the evidence provided by the native title party and other information provided by parties, I am satisfied it is unlikely the grant of the proposed licence would interfere directly with the conduct of the social and community activities of the native title party on the area.

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

In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [19], the DAA Database shows there are no registered sites in the area of the proposed licence, and no ‘other heritage places’. This does not mean there are no sites or areas of particular significance to the native title party within the proposed licence area or in the vicinity. The Register of Aboriginal Sites does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
Without disclosing the details, the affidavits of Ms Juboy and Ms Lennard identify the following sites which are likely to be within the proposed licence:
·A named creek which contains a dreaming story;
·Certain trees marked both by ancestors and current members of the native title party;
·Ridgelines which form part of dreaming tracks; and
·Geographical features within those ridgelines in which ancestors may have camped.
The native title party contends that permitted land disturbing activities, including the use of mechanised equipment, may result in the destruction or damage of sites for which certain members of the native title party would be responsible (at 27). No evidence is provided by the native title party regarding how these exploration activities may interfere with sites within the proposed licence. However, should the native title party take advantage of the RSHA condition proposed by the Government party, the native title party will have the option to choose which of the RSHAs best provides for their interests: the grantee party will then be required to notify, consult and, if necessary carry out surveys with the native title party in relation to ground disturbing works.
In its reply, the native title party contends (at 14) the RSHA condition is not set out in the Government party’s proposed conditions. However, the Government party’s subsequent reply (at 1) does set out the wording of the RSHA condition it is prepared to impose (as outlined at [23] above). There is no evidence that the Government party won’t include the RSHA condition when it finalises the conditions prior to grant.
With reference to the evidence of Mr Green, I accept the Government party’s contention that his assertions of sites within the proposed licence are based on his concept of ‘predictive modelling’, as is outlined by Mr Green himself. While this concept is not specifically explained in Mr Green's affidavit, I understand it to mean the statements are based on knowledge of what may be, rather than specific knowledge of what is actually on the area of the proposed licence (at 56). I do note Mr Green’s comment that the recent passing of a member of the native title party greatly affected the community and so little information was able to be provided by the native title party.

The native title party contends (at 28) there has been no consultation with the grantee party regarding sites or heritage and that the grantee party may inadvertently interfere with sites or areas of significance. Citing Tullock v Allarrow, the native title party (at 40) contends the Tribunal has previously found that, by their very nature, dreaming tracks 'are not sites which might be readily identifiable by persons other than those instilled in the mysteries of the [dreaming stories]'. However, the evidence presented in that matter was more comprehensive than provided by the native title party in this matter. The affidavits provided by the deponents in Tullock v Allarrow did not simply note the presence of dreaming tracks, but gave detailed information concerning their nature, their significance to the native title party, and the direct consequences of any interference. For example, (at [39] in Tullock v Allarrow):
Without disclosing the contents of the restricted affidavits, it is clear from the deponent’s statements that the area defined as ‘the Lake Way Area’, which includes the proposed tenement, is an area of particular significance to the native title party and to the wider Martu culture to which it belongs. The Lake Way Area comprises a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to Martu religion. Two of these sites or areas are the Abercromby creek and soak system in which the proposed tenement is located, and Lake Way itself, which includes a surrounding seasonal overflow or “wash” area and encroaches upon the proposed tenement. It is also clear from the careful language used by the deponents that cultural information regarding the Lake Way Area is extremely sensitive and restricted to certain members of the native title party. Under Martu traditional law and custom, those certain members have an enforceable obligation to monitor and control any person’s access to and activities within the Area, and failure to fulfil that obligation, even if they were unable to do so due to circumstances outside of their control, has resulted, and will continue to result in corporal punishment.

The native title party also contends that on numerous occasions, the Tribunal has found that lack of information about the grantee party’s exploration program means there is a real risk of interference with sites of particular significance as a result of the grant of the proposed exploration licence (citing Simpson v Western Australia; Freddie v Western Australia; Bunuba and Gooniyandi v Western Australia; Miriuwung Gajerrong 1 v Western Australia; and Yi-Martuwarra Ngurrara, Kurungal and Gooniyandi v Western Australia). The native title party states the Tribunal has made this finding even where the grantee party is aware of its obligations under the AHA Act. I have considered each of the cases referred to by the native title party, and note the evidence provided is distinguishable from that provided by the native title party in this matter. The evidence presented in each matter cited by the native title party went beyond simply identifying sites or areas likely to contain sites: each evidenced the nature and the extent of the sites and their importance to each native title party’s heritage and/or spirituality. As such, this enabled the Tribunal to determine the sites to be of particular significance to each of the native title parties concerned, and that the sites were at real risk of interference should the expedited procedure apply (see, for example, Simpson v Western Australia at [52]; Freddie v Western Australia at [17]; Bunuba and Gooniyandi v Western Australia at [13], [15] and [34]; Miriuwung Gajerrong 1 v Western Australia at [40]-[46] and Yi-Martuwarra Ngurrara, Kurungal and Gooniyandi v Western Australia at [55]-[65]). In the present matter, there is insufficient evidence for me to conclude that the sites as noted in the affidavit evidence are of particular significance to the native title party.
The native title party contends the AHA does not provide adequate protection for sites which may be within the proposed licence, for example, the dreaming tracks which may be located within the ridgelines (at 28-29). No evidence is provided in support this contention. However, as the native title party rightly contends in its reply (at 8), the defence of s 62 of the AHA is not available to the grantee party. From the evidence of Ms Lennard and Ms Juboy, the grantee party is on notice that the named creek, the marked trees, the ridgeline areas and features within the ridgelines located within the proposed licence, may be sites as contemplated by the AHA.
The Government party contentions state the assessment required in considering whether s 237(b) applies involves an assessment of whether the regulatory regime is sufficient to make interference to a site unlikely. The Government party cites the finding of Nicholson J in Little v Western Australia (at [77]), that interference with areas or sites of particular significance is unlikely given the protective effect of the AHA. Further, the Government party indicates the Tribunal may have regard to a grantee party’s attitude to entering into an RSHA, and other evidence of the grantee party directed toward Aboriginal heritage. I agree with these contentions from the Government party. The grantee party submits it is willing to enter into an RSHA, is aware of its obligations under the AHA and states it has never been prosecuted. I accept the grantee party’s contention that it’s attitude towards the protection of Aboriginal heritage, including its intentions to fully comply with the relevant legislation and the terms and conditions of the proposed licence, should be taken into consideration by the Tribunal.
The native title party reply (at 10-18) contends the grantee party’s behaviour is a relevant consideration for the Tribunal when undertaking the predictive assessment. It appears the behaviour referred to relates to that which occurred following the lodgement of the objection application (at 5-8): the native title party contends it made continued attempts to engage with the grantee party which were not responded to. Ms Panckhurst's affidavit outlines the circumstances of those contacts, which occurred between July to September 2013, in the form of telephone calls to the grantee party and contact with the grantee party representative. It is said the grantee party sent the matter for inquiry, rather than engage in heritage and cultural agreement discussions with the native title party representative. In considering the native title party’s contentions and evidence on this issue, I note the findings in Mark Lockyer v Mineralogy (at [48]-[49]):
There are no mandatory consultation procedures required of grantee parties by the expedited procedure provisions of the Act.... There is no obligation imposed by section 237 on the grantee party to negotiate, attend meetings or otherwise manifest good faith with a native title party. The issue to be determined in an inquiry of this type is of very short compass. It is to assess if the grant of the relevant future act will be likely to have any of the consequences outlined in paragraphs (a) to (c) of section 237. While the intention of a grantee party can be of relevance, this should not be confused with an obligation on a grantee party to negotiate in good faith with a native title party prior to the grant of a tenement. A government party asserts that a future act attracts the expedited procedure because it is allegedly of a low impact nature and a full right to negotiate is not required. Consequently the focus of an expedited procedure objection inquiry is to assess if the proposed future act will be likely interfere or cause disturbance as outlined in section 237, and not whether the parties have engaged in the "normal negotiation procedure" as prescribed by section 31.
Bad relations between parties can sometimes be of direct relevance for a predictive risk assessment. If there is a history of a grantee party engaging in activities of a type that are dealt with in section 237 then this would be a key issue. Further, if the bad relations relate to previous breaches of the law by the grantee party or threats or overbearing behaviour, such that there is a real fear that the grantee party would not obey the law, then this also would be relevant. Any of these matters would be pertinent to the issue of whether the presumption of regularity should be applied. However, if the bad relations are of the type highlighted in this matter, and relate to interpersonal, commercial and process issues, then they are largely irrelevant to a section 237 predictive risk assessment.
Whilst it is alleged the grantee party did not engage in negotiations with the native title party over its preferred agreement in this expedited procedure matter, it has no obligation to do so under the Act. It has indicated agreement to enter into an RSHA with the native title party, commits to comply with all relevant legislation and government policy (at 48 and 74), and refers to the presumption of regularity that it will act lawfully (at 73, citing Silver v Northern Territory). The grantee party has not specifically responded to the material relating to the nature of negotiations between them and the native title party, nor is such a relevant consideration for me in an expedited procedure matter. Nevertheless, I make the general comment that clear and ongoing communications between parties, as far as possible in any process, even where not relevant in a technical or legal sense, can only ever assist parties in maintaining good relations. This is particularly so for parties in situations which may endure for many years. In relation to expedited procedure matters, there are no enforceable obligations regarding the conduct of parties, although such may become relevant for those matters which enter the right to negotiate process (under s 31 of the Act), where the determination is that the expedited procedure does not apply.
Having regard to all of the considerations outlined above, I find that even if the sites referred to by the native title party were considered to be of particular significance, evidence as presented in this matter does not suggest the grant of the proposed licence is likely to interfere with sites of particular significance to the native title party in accordance with its traditions.

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

The Tribunal is required under s 237(c) to make an evaluative judgement of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Littlev Oriole at [41]-[57]).
The native title party contends the grant of the proposed licence will create rights whose exercise is likely to involve major disturbance including the digging of pits, trenches and holes, sinking of bores and tunnelling. However, I note the proposed conditions and endorsements for the proposed licence which regulate such activities. It is also appropriate that I have regard to historic and current interests held in the area. As previously noted, the proposed licence area is subject to Blina and Meda pastoral leases, two petroleum production licences, and has been subject to recent exploration licences. The creation and operation of these interests will inevitably have impacted on and altered the environment of the area, and will have required that the native title party’s rights and interests co-exist with those rights held by the pastoral lessees and the existing and previous tenement holders over the area.
The native title party has not established there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In addition, I accept the contentions of the Government party that the requirements imposed by the conditions of the licence, the protection of the AHA, and other relevant legislation will ensure the grant of the proposed licence is unlikely to involve a major disturbance to any land or waters.
In summary, I find the grant of the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.

Determination

The determination of the Tribunal is that the grant of exploration licence E04/2237 to 142 East Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member

20 May 2014