Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Peter Andrew Wiltshire

[2009] NNTTA 119

NATIONAL NATIVE TITLE TRIBUNAL

Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Peter Andrew Wiltshire, [2009] NNTTA 119 (6 October 2009)

Application No:        WO08/299

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

Ike Simpson & Ors on behalf of the Wajarri Yamatji – (WC04/10) (native title party)

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The State of Western Australia (Government party)

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Peter Andrew Wiltshire (grantee party)

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

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  6 October 2009

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Mining Act 1978 (WA), s 63

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon CJ Sumner, Deputy President

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL [2002] NNTTA 43 (11 April 2002) Hon CJ Sumner, Deputy President

Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd [2002] NNTTA 236 (18 November 2002) Hon CJ Sumner, Deputy President

Crowe & Others v State of Western Australia [2008] NNTTA 71; 218 FLR 429

Silver v Northern Territory (2002) 169 FLR 1

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Representatives of the     Mr Mathew Punch, Yamatji Marlpa Aboriginal Corporation

native title party:            Ms Samantha Rosenfeld, Yamatji Marlpa Aboriginal Corporation

Representatives of the     Mr Domhnall McCloskey, State Solicitor’s Office

Government party:         Mr Greg Abbott, Department of Mines and Petroleum

Representative of the
grantee party:                 Mr Peter Wiltshire

REASONS FOR DETERMINATION

1. On 16 January 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E20/666 (‘the tenement’) to Peter Andrew Wiltshire (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The tenement comprises an area of 27.64 square kilometres located 55 kilometres north westerly of Cue. It is 100 per cent overlapped by the registered claim of the Wajarri Yamatji (WC04/10 - registered from 5 December 2005). The registered claim is a result of an order of the Federal Court of Australia made on 4 February 2005 to combine the applications of Ngoonooru Wadjari People (WAD6033/98, WC00/12) registered on 20 June 2001 and The Wajarri Elders (WAD6042, WC01/3) registered on 9 July 2001. No other native title groups overlap the tenement.

3. On 29 February 2008, the native title party made an expedited procedure objection application to the Tribunal.

4. On 3 April 2008, Deputy President Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

5. At an adjourned status conference on 6 May 2009 the grantee party requested the matter proceed to inquiry on the basis that he had offered the Regional Standard Heritage Agreement (‘RSHA’) and was not willing to negotiate anymore. This request followed a number of conferences and six requests to extend direction compliance dates to enable parties to negotiate a Weld Range Heritage Agreement. The matter was to proceed to inquiry on the direction compliance dates as amended, and approved by DP Sumner on 28 April 2009. The Listing Hearing date was set down for 2 July 2009.

6. Prior to the Listing Hearing, on 17 June 2009 the native title party requested a three week extension for direction compliance dates on the basis there was to be a planned trip on country to gather evidence from members of the native title party. A further request of one week was made on 13 July 2009. At the Listing Hearing on 30 July 2009 the native title party made a request for a two week extension to finalise the gathering of evidence and a further request for one week made at an adjourned Listing Hearing held on 13 August 2009.

7. At the adjourned listing hearing held on 13 August parties requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) the Act).

8. The Government party lodged its contentions and evidence on 4 May and 22 June 2009. The native title party lodged its contentions on 24 July and partially executed evidence on 20 August followed by fully executed evidence on 24 August 2009. The grantee party is to rely on the evidence submitted by the Government party.

9. On 21 August 2009, I was appointed by the President of the Tribunal as the Member for the purposes of the conduct of the inquiry.

Legal principles

1. 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.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]-[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.

2. Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used.  Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.

3. With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), DP Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)

Contentions of the Government Party

1. The Government party documentation establishes that the underlying land tenure on the tenement is 100 per cent Pastoral Lease no 3114/570.

2. The Government party documentation reports there are no Aboriginal communities identified within the area or in the near vicinity of the tenement.

3. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals five registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) within the tenement as follows:

• Site ID 6826 – Aga Khan Bora Ground (ceremonial, mythological, man-made structure – permanent register, closed access, no restriction);
• Site ID 21211 – Poona Mine A (artefacts/scatter, rock shelter, lodged, open access, no restriction);
• Site ID 21212 – Poona Camp A & B (artefacts/scatter, camp, lodged, open access, no restriction);
• Site ID 21579 – Poona Mine B1 (painting, artefacts/scatter, rock shelter, stencils, lodged, open access, no restriction);
• Site ID 21580 – Poona Mine B2 (painting, artefacts/scatter, lodged, open access, no restriction).

1. The Government party Quick Appraisal documentation indicates that, as of 21 April 2009, there are five active and two pending tenements that affect the tenement. They overlap the tenement between 0.2 per cent and 11.6 per cent. The pending miscellaneous licence 20/43 is currently subject to s 31(3) application with the Tribunal for mediation assistance (matter No. WM07/45). An associated s 31(3) matter in relation to the same pending tenement is matter WM06/32, in which mediation was discontinued by the Member on 7 November 2006. The live prospecting licence 20/1885, previously granted was subject to an objection application by the pre-combination applicant Wajarri Elders (WC01/3). The objection application (WO03/427) was withdrawn on 8 June 2006 on the basis that an agreement had been reached. The pending prospecting licence 20/2076 was notified under s 29 of the Act on 28 August 2009 subject to the inclusion of the statement by the State that the act is an act that attracts the expedited procedure. The notification included a closing date of 29 December 2009 for the native title party to lodge an objection to the statement.

2. The Quick Appraisal documentation lists extensive activity in the area of the tenement dating back to 1912, including previous exploration and mining.

3. The grant of the tenement will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4).

1. In addition, the grant of the tenement will be subject to the following conditions 5-9:

   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 utilizing equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanized equipment.

   6.   The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:

   i.The grant of the Licence; or

   ii.Registration of a transfer introducing a new Licensee;

   advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

   7.   No interference with Geodetic Survey Station G20-12 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   8.   No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

   9.   The rights of ingress to and egress from Miscellaneous Licence 20/43 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

2. The following Endorsements (which differ from conditions in not making the licencee liable to forfeiture of the licence for their breach) will be imposed:

   1.   The licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;

   2.   The licencee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

3. The grantee party submitted no evidence or contentions of his own and relies on those provided by the Government party.

Evidence provided by the native title party

1. The submissions of the native title party include the combined witness statement (‘WS’) of Carl Hamlett and Brendan Hamlett (‘the Hamletts’). The statement is made in the following terms:

   ‘Statement of Carl Hamlett and Brendan Hamlett

   1.   We are the members of the Wajarri Yamatji people. Our father, Colin Hamlett, is an Applicant of the Wajarri Yamatji native title claim (WAD6033/98). He is recognized under the traditional Wajarri laws as winja/bardani [elder].

   2.   Our family speaks for the country, knows the country and belongs to the country including the Weld Range and the tenement E20/666.

   3.   We know the tenement area well, and we visited it as recently as last weekend.

   4.   We know the area in and around the tenement area. It is part of our country.

   Site of Significance

   5.   The tenement area lies just south of the Weld Ranges. It in country that the old people from the old days would travel past frequently.

   6.   The tenement contains an old law ground. The area registered with the Department of Indigenous Affairs (“DIA”) as the ‘Aga Khan Bora Ground’ contains the old law ground that we have been told stories about and that we protect.

   7.   Our father has passed onto us the responsibility for looking after that sacred place. He was given that responsibility by his father.

   8.   The Law ground is where our grandfather was initiated as a Wajarri law man. The old people conducted ceremonies and initiation rites at the place.

   9.   On the DIA Aboriginal Site register, it says that this site is ‘mythological’. But there’s nothing ‘mythological’ about it! It’s a real sacred place, where the law is. Only initiated men should go there. If people who aren’t suppose to be there go there, then they’ll get sick, they’ll get really sick.

   10.   The area around the law ground has sites that show you how important it is. There are rock and stone arrangements made by Wajarri’s that show you boundaries. The rock and stone arrangements are so that people can always find their way to this place.

   11.   The rock and stone arrangements around this law ground are also special because they tell people something else. They are a boundary around the place, showing the woman that they can’t go there.

   12.   Our grandfather told our father all about the old law grounds in this country. We work up here, to be near these places and protect them. That’s why we’re here.

   13.   We come out to these places regularly and check them, check out all our sites and see that nothing has been tampered with and check if vehicles have been around there and to make sure nothing has been taken away. I tell my boss that – he knows that I have to go sometimes to make sure these places are okay.

   14.   The law ground forms part of the stories that go from the Weld Range to Walga Rock. The old people would get their ochre from Wilgie Mia and walk to Walga Rock. Along the way, they would stop and do ceremonies, and paint and make carvings. There are places all over this country where people live.

   15.   The site is a particular significance to our family, and to all Wajarri people. The reason we are giving this information is because it has become our personal responsibility, through our father and his father, to look after that place and ensure it is not disturbed. Only certain people know about this place, where it is and what is there and we have to protect it.

   Site Rich Area

   16.   In the tenement, we’ve seen caves where people have lived – the smoke still marks the walls. There are breakaways all through the tenement. In those breakaways there are nunnggas (caves), which have paintings and art. Only are [sic] couple are registered sites. So many aren’t registered, but still need to be protected.

   17.   On the road into the Poona Mine, there are some big granites. There’s carvings on those granites. There are engravings all through this tenement and paintings too.

   18.   The old people used to go all through that country where the tenement area is, camping there and walking there from Wilgie Mia and Walga Rock.

   19.   Wilgie Mia is one of the most important areas in Wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert.

   20.   The old people used to take the ochre from Wilgie Mia and paint in the caves on the west side of the range too. The caves in the Tenement Area have been painted by the old people taking ochre from Wilgie Mia.

   21.   In the past Aboriginal people wouldn’t tell white people – and some black people too – where there sites were. This is because if people found out they would go there and destroy them. That’s why there are lots of sites that aren’t registered.

   22.   There are artefacts in the area that show where the Old people camped on this land, and how they lived, and they are important historical and cultural material for us. Any exploration activity in the rocky parts of the tenement could damage or destroy these sites.

   23.   There are lots of wudajis and mundungu [spirit people] that live in the hills and the caves of the Weld Range. They’re in the Tenement area and the country round there too. That’s their home. These people are little hairy men/spirits. If wudajis get upset then they upset Aboriginal people and they will make you get sick, sometimes they’re cheeky enough to give people a flogging or they throw them out of bed.

   24.   People shouldn’t go out to that area unsupervised; they need someone to go with them who knows the area so nothing gets touched. We need to negotiate with people who want to go to this area, to make sure the law ground is protected and that there is an exclusion ground around it and that no one goes there. Only the right people can go there.’

2. The evidence from the Hamletts is uncontested and I accept it.  Both are members of the native title party and they say it is their personal responsibility through their father and grandfather to look after and protect the area of the proposed tenement (WS15).  I accept that the Hamletts have the authority to speak for country on behalf of the native title party.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the tenement 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 interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’).  The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.

3. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community and social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect those activities (Walley at 441-442 [12]).

4. The evidence of the Hamletts states that their father, Mr Colin Hamlett, a named applicant and recognized under the traditional Wajarri laws as winja/bardani [elder] has passed onto them responsibilities for looking after sacred places (WS7). They state they know the area of the tenement well and visit it regularly to ‘check out all our sites and see that nothing has been tampered with and check if vehicles have been around there and make sure nothing has been taken away’ (WS13). Both provide that they are employed in the area to be near the sacred places to protect them and they have explained to their employers that they go to these places to make sure they are okay (WS13). They state that the tenement contains an old law ground registered with the Department of Indigenous Affairs (‘DIA’) as the ‘Aga Khan Bora Ground’ and the ‘old people conducted ceremonies and initiation rites at the place’ (WS6). It is also stated that the tenement lies just south of the Weld Ranges and in country that the old people from the old days would travel past (WS5).

5. The evidence in this matter stands in contrast to that adduced in previous matters, involving the Weld Range area.  (see for example, Walley; Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL [2002] NNTTA 43 (11 April 2002), Deputy President Sumner (‘Hampton Hill’); Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd [2002] NNTTA 236 (18 November 2002), Deputy President Sumner (‘Richmond’)). The evidence adduced in those matters is not reproduced in this matter and does not provide descriptions for carrying on of social and community activities of a physical kind such as hunting and gathering, camping, swimming, stories and teaching young people and descriptions of food sources, bush medicines and flora and fauna.

6. The evidence is vague as to the frequency of visits to the tenement by the Hamletts, (WS13).  The evidence produced does not mention access to the area by other members of the native title claimant group. There are also no communities within or near the tenement area.

7. In making a ‘predictive’ assessment the evidence adduced in this matter by the native title party does not provide any basis for suggesting that there are significant social or community activities carried out by the native title party in or within the vicinity of the tenement, and within in recent times.  I find that the grant of the tenement is not likely to directly interfere with the exercise of the community and social activities of the native title party.

Sites of particular significance (s 237(b))

1. The next 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 (i.e., more than ordinary) significance to the native title party in accordance with their traditions.  As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows there are five sites within the tenement, but this does not mean there may not be other sites or areas of particular significance over the area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider, whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea, (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether the presumption of regularity and the protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making that assessment, the intentions of the grantee party are critical.

3. The Hamletts state that the DIA registered site Aga Khan Bora Ground, No. 6826 contains a law ground of ‘particular significance to our family, and to all Wajarri people’ (WS15). The law ground is where ‘our grandfather was initiated as a Wajarri law man’ and ‘It’s a real sacred place, where the Law is. Only initiated men should go there’ (WS9). The Hamletts state that the area around the law ground has sites that show you how important the area is. They refer to the caves in the tenement where people have lived – ‘and the smoke still marks the walls’ (WS16). They state that the law ground also forms part of stories that relate to the Weld Range to the Walga Rock. The Wilgie Mia area which they explain ‘is one of the most important areas in Wajarri country’ and the ‘old people used to take the ochre from Wilgie Mia and paint in the caves on the west side of the range. The caves in the Tenement area have been painted by the old people and by ochre from Wilgie Mia’ (WS20). The Hamletts conclude in their statement that people should not go to the area unsupervised to protect the law ground and they say an exclusion ground should be placed around it so only the right people go there (WS24).

4. The evidence of the native title party is uncontested and I am satisfied that there are sites of particular significance within the tenement, including the Aga Khan Bora Ground.  Aga Khan Bora Ground is specifically referred to by the Hamletts as having ‘particular significance’ (WS15) but the descriptions of other sites, including areas of rock and stone arrangements around Aga Khan (WS10-11), caves and paintings on the road to Wiglie Mia (para 14, 16 and 20), and the granites on the road into Poona Mine, appear objectively to be sites of particular significance to the native title party (WS17).

5. The Tribunal has found, on numerous occasions, that the Weld Range is an area of particular significance to the Wajarri People, the native title party in this matter.  That finding is foundered on the magnitude of the sites of significance in the area, both in terms of numbers and ceremonial importance (refer [33]).

6. The proposed tenement is either in or near the Weld Range but that of itself is insufficient to establish that the area contains sites of particular significance.  In coming to the conclusion that there are sites of particular significance within the area of the proposed tenement, I have relied on the uncontested evidence of the native title party.  However, the fact that there are areas of particular significance to the native title party in much of the surrounding vicinity of the Weld Range, particularly between Walga Rock and Wilgie Mia, does assist me in making the ‘contextual’ evaluative assessment that is required of me (see French J in Smith at 451-452 [27]).

7. I must now consider whether there is likely to be a real risk of interference with areas or sites of particular significance.

8. In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the tenement. In the absence of evidence to the contrary I must assume that the grantee will fully exercise his rights under the Mining Act, (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).

9. The grantee party has not provided any evidence of its intentions with respect to the protection of Aboriginal sites or consultation with the native title party regarding those sites. However, there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. The Government party contends that the grantee party has signed a statutory declaration saying it has executed and forwarded a copy of the RSHA to the native title party’s representatives which reveals an awareness of its obligations. This is in accordance with the Government party’s submission (GPS5e) and the condition of the grant of the tenement:

   ‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Wajarri Yamatji People, the Applicants in Federal Court application no. WAD 6033 of 1998 (WC04/10), such request being sent by pre-paid post to reach the Licensee’s address c/- Peter Andrew Wiltshire, 61 Huxtable Terrace, Baldivis WA 6171, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wajarri Yamatji People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Yamatji Land and Sea Council.’

10. The Government party contends in its submission that in making a predictive assessment the Tribunal can have regard to the enhanced effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1, Hon CJ Sumner (‘Champion’) at [71], (GPS21) and the grantee party’s attitude to the RSHA: Champion at [30-[34] (GPS23). They contend that the Tribunal may have regard to the extent the grantee party will go to ensuring that the risk of interference is minimised: Champion at [30] & [34] (GPS24). Furthermore, the Government party contends, by way of example that in Silver v Northern Territory (2002) 169 FLR 1 at [49] Member Sosso referred to the desire of the grantee party to ensure that any exploration activities are ‘conducted in a culturally sensitive manner’ (GPS24).

11. The area of the proposed tenement contains a number of sites of particular significance to the native title party. Despite the protective effect of the AHA and RSHA, their existence and imposition does not settle the question of whether, in the circumstance, it is not likely that they will suffer interference (see Walley at [51] Champion at [33] and Crowe & Others v State of Western Australia [2008] NNTTA 71; 218 FLR 429 at 454 [89]). Every inquiry which comes before the Tribunal needs to be carefully assessed in light of its own peculiar circumstances. In this matter, notwithstanding the protective effect of the AHA and the RSHA, I believe the uncontested evidence of the Hamletts as to the sites of particular significance within the area of the proposed tenement and within the vicinity of it, is such that further, more detailed negotiation needs to take place before exploration should be undertaken. Consequently, I find that interference with sites of particular significance is likely.

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

1. No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).

Determination

1. The determination of the Tribunal is that the grant of exploration licence E20/666 to Peter Andrew Wiltshire is not an act attracting the expedited procedure.

Daniel O’Dea
Member
6 October 2009