Jamukurnu-Yapalikurnu Aboriginal Corporation RNTBC v Source Localisation Pty Ltd - [2024] NNTTA 76

NATIONAL NATIVE TITLE TRIBUNAL

Jamukurnu-Yapalikurnu Aboriginal Corporation RNTBC v Source Localisation Pty Ltd and Anor [2024] NNTTA 76 (9 October 2024)

Application No:

WO2022/0885

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

- and -

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

Jamukurnu-Yapalikurnu Aboriginal Corporation RNTBC (WCD2002/002)

(native title party)

- and -

Source Localisation Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Member Glen Kelly
Place:	Perth
Date:	9 October 2024

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – restricted evidence – changes in Aboriginal heritage legislation – whether act likely to interfere directly with the carrying on of community or social activities – proximity of Aboriginal community – presence of permanent water source – intergenerational teaching – presence of grantee party constituting interference with community and social activities – essential characteristic of community and social activities – lack of instrument to establish communication and coordination processes - whether act likely to interfere with sites or areas of particular significance – restricted songlines and men only ceremonial site – mere presence on site of particular significance constitutes interference – amended Aboriginal Heritage Act unlikely to prevent disturbance – impact of State requirement for grantee parties to offer Regional Standard Heritage Agreement on prospects of agreement-making – whether act likely to involve major disturbance to land or waters – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Cultural Heritage Act 2021 (WA) (repealed) Aboriginal Heritage Act 1972 (WA), ss 17 & 18 Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) Mining Act 1978 (WA), s 66 Native Title Act 1993 (Cth), ss 29, 31, 32, 142, 148, 151, 155, 237
Cases:	Ben Ward and Others v Western Australia and Others [1996] FCA 1452 (Ward v Western Australia) Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba v Buxton Resources) Dolores Cheinmora & Others on behalf of the Balanggarra Native Title Claimants v Heron Resources Ltd and Another [2005] NNTTA 99 (Cheinmora v Heron Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (James v Western Australia) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another[2019] NNTTA 70 (Nyamal v Gianni) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People v Robin Boddington and Others on behalf of the Wajarri Elders and Others [2002] NNTTA 24 (*Walley v Western Australia) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants v Western Australia and Another* [2011] NNTTA 22 (Tullock v Western Australia) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni[2019] NNTTA 18 (Marputu v Gianni) Michael Daniel Teelow/Michael Page/Northern Territory, [2001] NNTTA 107 (Teelow v Page) Moses Silver, Ishmael Andrews & Sammy Bulabul v Northern Territory and Another [2002] NNTTA 18 (Silver v Northern Territory) Mungarlu Ngurrarankatja Rirraunkatja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (MNR v FMG Pilbara) Nyamal Aboriginal Corporation RNTBC vs Red Rock Australasia Pty Ltd and Anor [2024] NNTTA 8 (Nyamal v Red Rock) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Violet Drury and Others on behalf of Nanda People v Bywood Holdings Pty Ltd and Another [2002] NNTTA 171 (Drury v Bywood Holdings) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (*Yindjibarndi v FMG*)
Representatives(s) of the native title party:	Mr Andre Maynard, Cross Country Native Title Services Pty Ltd

Representative(s) of the grantee party:

Dr Gareth Roberts, Source Localisation Pty Ltd

Representatives(s) of the Government party:

Mr Domhnall McCloskey, State Solicitors Office

Mr Jake Lincoln, Department of Mines, Energy, Industry Regulation and Safety

REASONS FOR DETERMINATION

This is a decision on whether the expedited procedure of the Native Title Act 1993 (Cth) applies to the grant of prospecting licence E 45/6223 (proposed licence) to Source Localisation Pty Ltd (Source Localisation).
On 8 July 2022, the State of Western Australia (State) gave notice under s 29 of the Native Title Act of its intention to grant the proposed licence. This notice included a statement that the State considers the grant to be an act attracting the expedited procedure (see s 32 of the Native Title Act).
As outlined in s 237 of the Native Title Act, the expedited procedure applies if the grant of the licence is not likely to:
a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
If I decide the grant of the proposed licence does not attract the expedited procedure, the right to negotiate pursuant to s 31 of the Native Title Act instead applies.
The proposed licence is approximately 63 km² in size and is located approximately 151 km south of Telfer in Western Australia. It also sits entirely within the area of the Martu and Ngurrara native title determination (see James v Western Australia). The registered native title body corporate for the determination, Jamukurnu-Yapalikurnu Aboriginal Corporation (Western Desert Lands) RNTBC (JYAC), has objected to the application of the expedited procedure to the grant of the licence.
Initially under a delegation from the President of the Tribunal, Member Shurven was appointed to constitute the Tribunal for the purposes of the inquiry into this matter. Due to Member Shurven’s retirement from the Tribunal, Member Cooley was appointed on 23 November 2022, however in early March 2023, JYAC notified the Tribunal it would submit gender restricted material and requested a male Member be appointed to constitute the Tribunal. Following this, on 10 March 2023, I was appointed to constitute the Tribunal.
My decision is based on addressing the criteria set out in s 237 of the NTA and making a predictive assessment (see Yindjibarndi v FMG at [15]-[21] and cases cited therein) of whether the act is likely to result in the apprehended interference or disturbance. In making this assessment I must look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance. In doing this I must have regard to the rights conferred by the grant of the licence, evidence of the grantee’s intentions and the applicable regulatory regime (see Walley v Western Australia at [8]-[9] and cases cited therein).
JYAC contend the grant of the licence would be an act which is likely to interfere directly with the native title party’s community or social activities (S 237(a)) and interfere with sites of particular significance to the native title holders (s 237(b)). No contentions have been made by JYAC in relation to s 237(c).
For the reasons given below, I have concluded that the grant of the licence is not an act attracting the expedited procedure.

Conduct of the inquiry

Member Shurven first made directions for the conduct of the inquiry on 21 July 2022, with compliance dates commencing following the 4 month notification date of 8 November 2022. A first preliminary conference was convened on 16 September 2022 where it was noted that the compliance dates for Source Localisation conflicted with the Christmas and New Year period. In recognition of this, directions were reissued to provide further time for Source Localisation to submit its contentions.
On 6 December 2022, following the appointment of Member Cooley, JYAC sought an extension to its compliance date due to December and January being the time period in which cultural business occurs. It is generally understood that this refers to ‘law time’ during which it can be difficult to access deponents from native title parties. The request was made for the JYAC compliance date to be adjusted to 30 January 2023.
In response to this request, Member Cooley sought clarification from JYAC as to why it would not be in a position to comply by the original compliance date, what steps had been taken towards compliance to that point and what steps were planned to ensure compliance by the proposed 30 January 2023 date. Member Cooley also sought comment from Source Localisation and the State once these clarifications were provided.
JYAC responded with a clarification and in light of this clarification, sought a modified compliance date of 7 March 2023. Source Localisation opposed this extension and provided reasons for this while the State noted that it did not oppose the extension however would be unlikely to support further extension beyond this compliance date.
Having considered this extension request, Member Cooley approved the extension and issued revised directions on 13 December 2022. In doing so, Member Cooley noted:
The native title party has been on notice since 16 September 2022 that the inquiry was proceeding. There is no indication of any steps taken towards compliance, prior to the circumstances outlined in the native title party’s email of 8 December 2022. In that context, the grantee party’s strong objection is acknowledged and well founded. Further, the Member agrees that the native title party should have brought these issues to the attention of the Tribunal and the parties as soon as they became known.
However, the Tribunal also acknowledges and understands the impacts of sorry business and cultural law time and notes the State does not oppose the extension. In all of the circumstances, and in the interests of obtaining material for the Tribunal’s inquiry, the Member has allowed the extension (amended directions attached). Given the very lengthy period allowed, no further extension will be granted. If the native title party’s material is not received by 7 March 2023, the Member will consider the objection for dismissal, without further reverting to the parties.
While generally unnoteworthy, the submission of the JYAC contentions and evidence was made in the very early morning of 8 March 2023, 12:23 am to be precise, rather than by close of business of 7 March 2023 as directed. Included in this submission was a notification that gender restricted evidence would be submitted and non-disclosure directions would be sought. Member Cooley sought comment from the parties on whether JYAC would be seeking the matter to be heard by a male Tribunal member, the views of the parties on the late compliance of JYAC, whether the materials should be accepted and the views of Source Localisation and the State on the non-disclosure directions sought.
Following this, JYAC submitted its materials should be accepted, insisting the slight delay was due to the development of the non-disclosure directions and the desire to provide materials in one package. It was also at this point, on 9 March 2023, that JYAC request the matter be reallocated to a male member of the Tribunal. Accordingly, I was appointed on 10 March 2023 as previously noted, and considered all further responses made to Member Cooley’s requests.
In its response, Source Localisation stated the view that the Tribunal should dismiss the objection due to the failure of JYAC to comply with the direction of the Tribunal, stating it would expect the same treatment should Source Localisation similarly fail to comply. It further submitted that after a prolonged extension, the processes involved with the submission were not an excuse for missing the deadline and that it demonstrated JYAC was not respectful of the time of the other parties or the importance of the legal process. The State submitted that it had no comments regarding the late JYAC submission.
Section 148(b) of the Native Title Act provides the Tribunal with the power to dismiss an application at any stage of on inquiry if the applicant fails within a reasonable time to comply with a direction of the Tribunal. Dismissals are not an action taken lightly by the Tribunal, however when they occur and depending on the circumstances, a dismissal generally occurs in a manner consistent with the principles outlined in Teelow v Page.
As is further set out in the statute, s 142 of the Native Title Act requires that the Tribunal must ensure that every party is provided a reasonable opportunity to present their case. This requirement, in addition to the principles set out in Teelow and Page, guide consideration of this issue.
Having regard to the submissions of the parties, I came to the conclusion that JYAC had complied with the direction of the Tribunal in a reasonable time and no party was unduly prejudiced by late submission, given the submission was a matter of hours late rather than days or weeks. Given this, I formed the view it would not be reasonable to dismiss the matter. Additionally, I formed the view that, given the lateness of the materials was a matter of hours, not accepting the JYAC materials would likely be in contravention of the Tribunal’s s 142 requirements.
Based on this, I declined to dismiss the objection and accepted the JYAC material into the inquiry.
Source Localisation also strongly objected to the non-disclosure directions sought by JYAC. These non-disclosure directions sought the affidavit of Mr Murphy Williams, aside from judicial review, not be disclosed to any other person other than male officers, employees or representatives of a party and the presiding member and male staff of the Tribunal. Additionally, communications pertaining to the restricted material be made confidential and that at the conclusion of the proceedings, copies of the restricted material be returned or destroyed, unless otherwise required to be preserved by a statute.
Source Localisation submitted that treating that affidavit as restricted would prevent independent assessment and that the further gender restrictions could further limit its ability to obtain advice from experts, effectively by excluding female experts from being able to advise. Source Localisation argued that preventing independent assessment of evidence and subsequent advice was a denial of natural justice.
Source Localisation also argued that the destruction of business documents is a poor business practice, that documents demonstrate and validate the time and expenditure commitments of Source Localisation and that as documents received or produced by Source Localisation, they cannot be destroyed or lost for legal, taxation, governance or audit reasons. The State made no submissions regarding the non-disclosure directions.
Section 155 of the Native Title Act provides that the Tribunal may prohibit the disclosure of evidence or restrict the disclosure of evidence to such persons as the Tribunal specifies. Prohibitions on evidence disclosure pursuant to s 155 are not infrequently put in place in expedited procedure inquiries through the mechanism of non-disclosure directions.
By way of explanation, should the evidence to be provided by a native title party be culturally and/or gender restricted, as is often the case with Aboriginal and Torres Strait Islander societies, it may not be able to be submitted if restrictions were not placed on its disclosure. If the difference between a native title party being capable of submitting evidence or not is the imposition of non-disclosure directions, the Tribunal would be unlikely to meet the requirements set out by s 142 of the Native Title Act if it were not to impose some form of restriction.
Even so, the submission from Source Localisation on the ability to attain expert advice and in turn have a reasonable ability to present its case also has merit, given s 142 applies to all parties. As such, there is a careful balance to strike between the needs of a native title party to submit evidence and a grantee party’s ability to assess that evidence.
This is not an unusual set of circumstances in expedited procedure matters, although generally, non-disclosure requirements are not strongly contested by the parties. Further, in some instances after their application, grantee and State parties are required to make adjustments in their advisory and representation personnel.
The fact that a grantee party may be required to change an advisor due to gender restrictions does not in my view, amount to a denial of natural justice or prevent them from being able to present their case. I accept that it may cause some inconvenience due to existing commercial or contracting relationships and time taken, however it is not excessively inconvenient for a grantee party to take advice from an alternate source should it be required. Alternatively, it would be a denial of natural justice if a native title party were unable to submit evidence simply because a grantee party was inconvenienced as to which expert it could take advice from.
Having considered the views of the parties, I decided to issue the gender restricted non-disclosure directions pursuant to s 155 of the Native Title Act, which were made on 10 March 2023.
In terms of materials, JYAC provided contentions (JYAC contentions), the affidavit of Mr Murphy Williams (Williams affidavit) which is subject to the previously described non-disclosure directions and contentions in reply (JYAC reply).
Mr Williams outlines that he is Martu, his language and his skin group. Mr Williams also provides that he is a native title holder in the Martu native title determination, is on the Board of JYAC, is a senior initiated man and has a cultural role of looking after sites. I accept Mr Williams’ standing in the native title group and his ability to provide evidence in this matter.
Source Localisation provided contentions (SL statement) while the State provided initial compliance which included mapping, tenure, and site data (State initial compliance) and contentions (State contentions).
A further procedural issue arose with the late submission of the JYAC reply, which was due to be submitted on 18 April. On 19 April, the Tribunal emailed the representative of JYAC seeking information on whether the native title party would be providing reply contentions. The representative of JYAC replied on 20 April with the JYAC reply and an explanation of certain personal circumstances which lead to the late submission. The State and Source Localisation were emailed later that same day, seeking their views on the acceptance of the late materials.
The State made no comment regarding the acceptance of the late JYAC reply. Source Localisation made comment with two distinct themes. The first was a relitigation of the issues surrounding the non-disclosure directions, however this had been previously decided. The second was that the Tribunal should dismiss the objection due to the failure of JYAC to adhere to the Tribunal’s directions.
Source Localisation raised a number of further grounds for the dismissal of the objection, the most relevant being that late acceptance of materials created unfairness for Source Localisation, which had complied with all time lines, disrupted the efficiency of the inquiry process and was not generally in the broader public interest.
It is not ideal that submissions were made almost habitually late by JYAC in the course of this inquiry, particularly when JYAC were provided with considerable flexibility at the commencement of the inquiry process and were provided with a considerable amount of time to make submissions. At this level, the frustration of Source Localisation is understandable. The questions at hand however are whether parties have been provided with a reasonable opportunity to present their case and, in the event of the late submissions, whether other parties’ interests were unduly prejudiced.

In the first instance, the JYAC representative gave an explanation for late submission that were of a personal nature. I accepted this explanation. The reply submission was made 2 days after the compliance date and while not ideal, I have not formed the view that this unduly prejudiced the interests of Source Localisation as there was no material impact on the inquiry process. In the alternative, I formed the view that the interests of JYAC would be prejudiced if the material was not accepted, and therefore accepted the reply contentions into the materials of the inquiry.
On the question of dismissal, given this issue concerns late submission of contentions in reply rather than primary evidence or contentions, dismissing an objection based on this is not a decision that could be reasonably taken. If such a path were taken, the native title party would be so deeply and obviously prejudiced that no such decision would stand judicial scrutiny. While Source Localisation proposed this course of action, the Tribunal taking this path would likely have created substantial and lengthy litigation which, I would assume, would not be in any party’s interest, including Source Localisation.
In any event, the question that was put to the parties was whether the late material should be accepted. As indicated, having considered the views put to me, I accepted the material into the inquiry.
Following the submissions of the parties, the inquiry process was interrupted by the changes in State legislation regarding Aboriginal heritage. Initially, the inquiry was to consider the application of the Aboriginal Cultural Heritage Act 2021 (WA) (ACHA) which came into force on 1 July 2023. It was announced in August 2023 that the ACHA would be repealed in its entirety, creating significant uncertainty as to the way Aboriginal heritage would be managed in Western Australia. Given the core role of State based protection regimes in the consideration of expedited procedure matters, this delayed the making of this determination.
This was not resolved until 15 November 2023 with the passage of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) which repealed the ACHA and reinstalled, in amended form, the Aboriginal Heritage Act 1972 (WA).
Given this substantial legislative flux, I formed the view the parties should be provided the opportunity to make further submissions on the operation of the heritage regime. On November 29, the Tribunal emailed the parties seeking their views on whether they may wish to make additional submissions concerning the application of the Aboriginal Heritage Act, with a recirculation of this email on 1 December.
On 21 December 2023, the State submitted that it did wish to make a submission. While this was some weeks after the expiry for a response to my request, the State submitted there would be no prejudice to the other parties in it making a submission. While not entirely satisfied of the prejudice question as it related to timing, given the nature of the subject matter is of primary importance in expedited procedure determinations, I decided to make directions for supplementary submissions on this topic. In doing so, I came to the view that all parties would be prejudiced if not provided with the opportunity to make further submissions on this key topic, outweighing timing considerations.
Directions to this effect were made on 30 January 2024. Under the supplementary directions:
(a)the State provided supplementary contentions (State supplementary contentions) and further reporting from the Aboriginal Cultural Heritage Inquiry System reflecting the legislative changes (ACHIS report December 2023); and
(b)JYAC provided supplementary contentions (JYAC supplementary contentions).
As was the pattern in this process JYAC again submitted late, 5 days on this occasion. In making this late submission JYAC argues that other parties were not unduly prejudiced and the materials should be accepted. While noting disappointment to the parties in the consistent late submission making of JYAC, given the subject matter I decided to accept the materials into the inquiry. As a further step to ensure other parties were not unduly prejudiced by this late JYAC submission, I adjusted compliance dates for following directions to ensure other parties were provided with sufficient time to make their submissions.
All parties agreed, and I am similarly satisfied, that the issues for determination can be adequately determined on the papers as permitted by s 151(2) of the Native Title Act. It should be noted that in submitting its consent for the inquiry to be determined on the papers, Source Localisation again raised issues surrounding procedural fairness and inquiry integrity. The main issues raised were again those of the non-disclosure directions, late submission making and the acceptance of late submissions. These have been previously explained and in the case where there was disadvantage to Source Localisation, compliance dates were changed to ensure procedural fairness for the grantee party.

The proposed licence and the proposed activities

The proposed licence is an exploration licence, a type of licence outlined in s 66 of the Mining Act 1978 (WA). Exploration licences are granted for a period of 5 years, with a possible further 5 year extension in certain circumstances. Source Localisation submits that it intends to explore for manganese, copper, gold, zinc, lead, silver, rare earths and graphite mineralisation (SL statement [12]).
Source Localisation submits that in the initial exploration stage it will conduct non-ground disturbing activities including a desktop review of historical exploration material and existing geological information. Based on analysis of these materials, an on ground exploration program would then be developed with identified targets to be ground truthed using low-impact exploration methods such as rock chipping, hand specimen and soil sampling using hand-held tools and subsequent geochemical analysis. Source Localisation submits that light vehicle (4WD) access on existing tracks will be used whenever possible (SL statement [16]).
Source Localisation also submits that once the initial stages of exploration have occurred, a further program will be determined which may include additional low impact activity such as reconnaissance exploration, prospecting activities or additional aerial survey. Ground disturbing activities such as exploration drilling may also feature as part of this further program.
The information provided by Source Localisation is general, driven as it is by a sequence of activities with each stage defining the activities to be carried out in the next, including locations. As a result of this, Source Localisation has not been able to provide a detailed description of its potential on ground program, aside from putting forward that ‘in areas of the tenement, such as the north-eastern area of the tenement that contains various places of spiritual and heritage importance, the grantee party will not carry out any ground-disturbing activities’ (SL statement [11]). Source Localisation also signed the Regional Standard Heritage Agreement (RSHA) which, it submits, ensures that the lands and rights of the Martu People are protected (SL statement [8]).
These assurances are positive however still include non-ground disturbing activity in the indicated portion of the proposed licence, are imprecise in terms of location and are non-binding or otherwise unenforceable. Additionally, JYAC indicated early in the process that it was not of the view that the RSHA provided the types of protections stated by Source Localisation and rejected it, proposing instead its own draft agreement.
As a result of these limitations, there is nothing that obliges Source Localisation to exercise its rights to anything less than their full extent over the full extent of the proposed licence. As such, I will assume that Source Localisation may do just this, which is consistent with Tribunal practice in such circumstances (Silver v Northern Territory [30]). In arriving at this view I would also state there is nothing that indicates Source Localisation will not adhere to the statutes and conditions it is required to; my assumption here relates to those rights it would lawfully possess.

CONSIDERATION

Section 237(a): Is the grant of the licence likely to interfere directly with the native title party’s community or social activities?

General

In approaching s 237(a), the Tribunal is required to undertake a predictive assessment on whether the proposed act will involve a real chance or risk of interference with community or social activities of the native title party (Smith v Western Australia [23]). As set out in Smith v Western Australia at [26], the ‘notion of direct interference involves rather an evaluative judgement that the act is likely to be a proximate cause of the apprehended interference’ where this interference is substantial in its impact rather than trivial.
Silver v Northern Territory at [59]-[60] provides a useful analysis of the term ‘community’, which I adopt for the purposes of this determination. It also adduces that for the purposes of s 237(a), it is the physical manifestation or ‘active manifestation’ of these activities that are in question (Silver v Northern Territory [61]), including where the activities have a spiritual dimension (Silver v Northern Territory [62]). This is an approach that has been adopted by the Tribunal previously (see Tullock v Western Australia [75] and Cheinmora v Heron Resources [33] for example), as it is in this determination.
In Drury v Bywood Holdings at [17.2], Deputy President Franklyn provides a useful summation of the consideration to be taken for s 237(a). I adopt this framework in making this determination.

Community and Social activities identified by JYAC

JYAC submits the Martu people from the Parnngurr community carry out regular community or social activities on the area of the tenement, Parnngur being located around 16 km north of the proposed licence (JYAC contentions [6]).
In his affidavit, Mr Williams outlines that routinely, large groups from Parnngurr visit a locality in the north eastern portion of the proposed licence that has permanent water, these visits lasting several days at a time. The Williams affidavit describes this place as providing hunting opportunities and having good supplies of bush foods and materials to make tools from for the gathering and preparation of food. Mr Williams also describes this provides opportunities for the passing on of culture and continuing the songs for the area.
JYAC contends that it is reasonable to infer that community and social activities occur particularly intensively in the location of the permanent water due to its permanence. This is not an unreasonable contention given the aridity of the surrounding environment.
While the above is a summary due to the restricted nature of the evidence, I accept the activities described to be community or social activities within the meaning of s 237(a). While these activities are not scheduled, which would be an unreasonable expectation in any event, I am satisfied of the evidence as to their frequency, their duration and that they occur in a particular location in the north eastern portion of the proposed licence.
In terms of interference, the overarching JYAC contention is that exploration activity and the presence of exploration personnel in the vicinity of these activities would produce interference. More specifically, JYAC contends exploration would interfere with intergenerational teaching, as the showing of significant places and passing on of cultural knowledge is not an activity that occurs in the presence of strangers due to this not being culturally appropriate and being an invasion of privacy. JYAC also contend exploration activity would increase the difficulty of organising the outings described, presumably as a result of the uncertainty of presence of exploration personnel (JYAC contentions [11]-[13]).
In its contentions, Source Localisation sets out that it will 'will ensure that any on-the-ground activities will not inhibit nor restrict Martu families regularly visiting the area to camp, hunt, visit places of significance and teach showing the generations’ (SL statement [10] and ‘will not inhibit nor restrict the Martu People’s Community or social activities’ (SL statement [11]). While these contentions are made, there is no mechanism provided as to how this will be managed or achieved aside from the RSHA, which JYAC rejected as being insufficient in its terms.
The State contend there is insufficient evidence to establish there will be interference under s 237(a) for a number of reasons. These are that:
(a)there are no Aboriginal communities on the proposed licence;
(b)the proposed exploration activities will be low-impact and non-intrusive;
(c)Source Localisations has provided assurances it will not inhibit or restrict activities which evidences an intention to conduct activities with cultural sensitivity and maintain good relations with JYAC and the native title group;
(d)mineral exploration in general cannot be said to be likely to cause substantive interference with the ability of native title holders to access land and conduct activities;
(e)mineral exploration and activities such as hunting and are capable of coexistence;
(f)to the extent that activities conducted on the proposed licence are ceremonial in nature, the likelihood that such activities will be affected by exploration activity has not been demonstrated in the JYAC evidence as the frequency, location and degree of participation in any ceremonial activities has not been adequately particularised (State contentions [21]).
I agree with the State that mineral exploration is capable of co-existence with community and social activities and that mineral exploration cannot generally be said to cause substantive interference. Each matter needs to be taken on its own merits however, and in this case, I see no binding evidence that the proposed exploration activities will only be low impact or non-intrusive. Rather, Source Localisation sets out that it intends to conduct a drilling program if results of desktop and initial field work justify this.
The grant of a licence doesn’t constitute interference merely because a grantee party’s presence in the area is unwanted (see MNR v FMG Pilbara at [108]). However in determining the likelihood of interference I may have regard to the essential characteristics of the activity, including any traditional laws and customs which underpin the activity (see MNR v FMG Pilbara at [105]). There must be evidence the apprehended interference will be substantial in its impact upon community or social activities (see Smith v Western Australia [at 26]).
While Source Localisation has provided assurances it will not restrict access and maintain good relations with JYAC, its commitments are non-binding and unenforceable. Having also rejected JYACs alternative to the RSHA, there is no instrument in place to establish communications between the parties on when and where exploration activities will occur, or otherwise allowing coordination between the parties on their respective activities.
In relation to JYAC’s contention regarding interference with intergenerational teaching, I note JYAC maintains the doing of this activity would be disrupted by the presence of strangers during, as would I expect, the intensive camping and teaching that occurs around the sole permanent water source in the greater area. I accept this contention given the nature of the activities and the nature of community itself. It is not a question of Martu people not wanting Source Localisation’s presence in the proposed licence, but rather the impact on the ability of Martu people to carry out these particular activities in the presence of Source Localisation’s personnel in an unmediated manner.
I have also accepted that community and social activities occur particularly intensively in the north east area of the proposed licence due to the presence of permanent water in this location. Given the close proximity of the Parnngurr community to the proposed licence and relative aridity of the surrounding environment, I cannot conclude that the community and social activities outlined by JYAC can easily be undertaken elsewhere.
While I would again set out that I am in agreement with the State that mineral exploration is capable of co-existence with community and social activities, potential interference would be mitigated or eliminated with some coordination between Source Localisation and the community. Given there is no instrument in place to establish communications between the parties or allow coordination of their respective activities, I have formed the view there is a real risk of interference with these community activities.
As a result, I find there is a risk of interference with the community or social activities of the native title party.

Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title party, in accordance with their traditions?

For an area or site to be regarded as being of particular significance, it must be of special or more than ordinary significance to the native title party in accordance with their traditions. It must be known, able to be located and for its significance to be explained to the Tribunal (see Yindjibarndi v FMG [17] and cases cited therein).
JYAC submits there are 4 places or areas of particular significance within the meaning of s 237(b). Due to evidence restrictions, I will not name them but will provide the following descriptions:
·the range which traverses the area;
·a restricted men’s site;
·a restricted men’s song line; and,
·a restricted women’s song line.

The Range

In his affidavit, Mr Williams characterises the range as a sacred place in itself and that it contains springs, caves, camp grounds and places related to law business. JYAC contend it has been a camping site for Martu people for generations and there has been continuous intergenerational visiting and teaching within the described area.
The initial compliance of the State shows a site in the area, confirmed by Mr Williams in his affidavit, labelled as ‘other heritage place’. This was further refined in the supplementary submission by the State following the re-establishment of the Aboriginal Heritage Act and is described as a place where information has been received, however assessment has not yet taken place.
The main upshot of this is that with the cross referencing of these sources from the State and Mr Williams, I am satisfied of the location of the area and that it is within the proposed licence.
Mr Williams and JYAC do provide a general picture of the significance of the area, however the description is broad. Given the description is general, there is no further evidence that establishes the particular significance of the area to the extent required within s 237(b). As a result of this, I cannot make a finding that the Range area is a place of particular significance.

Restricted men’s site and the restricted men’s songline

I deal with these two places or areas together as they appear interlinked.
Mr Williams’ evidence indicates a particular site which he identifies by name. Mr Williams states this corresponds with a site shown on the initial State compliance, although he deposes it is named incorrectly in the State materials. Again, the supplementary State materials show this as a place where information has been submitted but a site registration assessment has not taken place.
The site identified is in the north eastern section of the proposed licence and, given the description provided by Mr Williams and the cross referenced information from the State, I am satisfied of the location of the site and that it is within the area of the proposed licence.

Mr Williams sets out the restricted men’s site is a place for initiated men only and that people who are not initiated must stay away and are not permitted to speak of the place. Mr Williams describes a number of the attributes of the sites in addition to a number of the cultural elements and prohibitions that are associated with it. He also sets out that it is of strong significance, that the story of the place is still told, that it is used for what he terms serious law business each year, describes that it is part of a yearly ceremony and the purpose of that ceremony.
Regarding the men’s restricted song line, Mr Williams describes the song line as passing through the same area as the location of the men’s restricted site and describes the restricted men’s site as being part of this songline. JYAC contends it is one of the most important song lines for Martu and throughout the desert.
The description of the men’s restricted songline is fairly general in nature. While I am satisfied with the explanation of location and that it passes through a portion of the proposed licence, the description doesn’t go beyond an assertion of its significance, with no in depth information provided to support its particular significance. As a result of this, I cannot be satisfied that the restricted men’s songline is a place of particular significance for the purposes of s 237(b).
The description of the restricted men’s site is more detailed than that of the songline. The significance of the site is explained, including information about aspects of the cultural and ceremonial use of the site, albeit without describing the details of ceremony which I accept would likely be inappropriate, the frequency of this use and its cultural and social significance to the Martu people. Given the evidence provided and my previous remarks on location, I am satisfied the restricted men’s site is a place of particular significance which is located within the area of the proposed licence.

Restricted Women’s Song Line

The description of this songline is brief, with Mr Williams setting out that this separate songline also passes through the area but that only women can speak for it. As a result of this Mr Williams provides no further information, aside from to say that Martu people have responsibility to look after their part of these song lines.
Given this is the extent of the description and the evidence before me, I am unable to conclude that the restricted women’s songline is a place or area of particular significance. Further evidence may have altered this conclusion, however as it stands on this occasion, the evidence is insufficient to draw a conclusion of particular significance for the purposes of s 237(b).

Is the grant of the license likely to interfere with sites of particular significance?

What constitutes interference?

As I have found the restricted men’s site to be a place of particular significance, I must examine whether there is a likelihood of interference, taking into consideration the laws and customs of the native title holders in regard to what constitutes interference.
Given the nature of the site, Mr Williams describes restrictions over access to the site and outlines the belief that if it is disturbed or the wrong people go to the place, it causes sickness. Mr Williams also outlines information around cultural responsibility, stating that only those with cultural responsibility are able to visit or show the place to non-Martu people should that be required.
It can be said that in general, the native title party asserts that visitation or physical access itself constitutes interference with the site and that should visitation be necessary, this can only occur with those Martu people with cultural authority over the site. Given the nature of the site described, its ceremonial use and the cultural access prohibitions that are described, I accept that access would constitute interference in accordance with these traditions, in the same manner contemplated in FMG v Yindjibarndi at [75] and [76].

Are the activities of Source Localisation likely to give rise to interference?

Source Localisation does not make any specific contentions on what constitutes interference but does acknowledge on a number of occasions that there are areas of high spiritual and cultural importance within the area of the proposed licence. Source Localisation also states it will avoid areas of particular significance (SL statement [22]) although this is contrasted elsewhere where it is stated it will not carry out any ground disturbing activities in places of high significance (SL statement [11]), thereby not ruling out non-ground disturbing activity.
Source Localisation provides a list of activities which may be carried out as part of the exploration program (SL statement [19]), which mostly appear to fit the description of being ‘non-disturbing’ or ‘low impact’. This list of activities doesn’t cover the full suite of rights available to Source Localisation under the Mining Act however, and it is noted that exploration may ‘not be limited to’ these activities and include further ground disturbing activity if results warrant (SL statement [19]).
Source Localisation also states its view that its activities will not impact on the rights of the Martu people and notes it has signed what it describes as the State government endorsed RSHA which it asserts would ensure the lands and rights of Martu people are protected (SL statement [8]).
The State contend the evidence does not support a finding that there will be interference with sites of particular significance for three main reasons. Firstly, due to the awareness of Source Localisation of significant areas and it’s stated willingness to work with JYAC to avoid interference. Secondly, Source Localisation intends to consult with JYAC which indicates an intention to comply with its legal obligations, respect and accommodate Aboriginal cultural issues and engender good relationships, all of which the State contends, is likely to help it to avoid interference with or disturbance of areas or sites of particular significance.
Thirdly, the State contends there will be a low likelihood of interference as the Grantee’s evidence shows that most of the activities it will carry out will be low impact, non–intrusive and conducted in a way that should not adversely impact such sites (State contentions [24]).
In its reply contentions, JYAC contends that it is appropriate to infer that the rights under the proposed exploration licence will be exercised in full as the contentions of Source Localisation make it clear it intends to carry out ground disturbing works of varying scales and that no specific information on the location of activities over the term of the exploration licence is provided (JYAC reply [3]). To that end, JYAC also contend there is no evidence to support the State’s assertion that most of the activities that will be carried out are of a low impact nature.
JYAC also contend that Source Localisation has made a bare assertion in its statement that ground-disturbing activities will not be carried out in areas that contain places of spiritual and heritage importance such as the north eastern or other areas of the proposed licence. In making this contention JYAC notes that Source Localisation has not provided maps, shown areas it will avoid or provided any indication of what it views as ‘places of spiritual and heritage importance’ (JYAC reply contentions [4]).
To that end, JYAC effectively argue that interference is likely due to a lack of information on exactly where exploration activity may occur, aside from broad statements, a lack of commitment to inform JYAC of planned work activities and a contention that Source Localisation make no commitment to further consult with JYAC (JYAC reply contentions [5], [6]).
As previously noted, Source Localisation has set out that it does not intend to conduct ground disturbing activity in the vicinity of the site of particular significance, however it has not discounted non-ground disturbing activity. Also, as previously noted and consistent with FMG v Yindjibarndi at [75] and [76], I have accepted that simple entry onto this site would constitute interference due to the nature of the site and the traditions that surround it.
Alternatively, Source Localisation states it will avoid restricted areas, presumably referring to the same area as above, however as contended by JYAC, is unaware of the exact location of these restricted areas and has not defined the area it considers may be restricted or of spiritual and heritage importance.
It is difficult to understand which of these alternatives is more likely, given both have been presented. As such, I must take a precautionary approach and will assume the area may be accessed for non-ground disturbing activity, which may give rise to interference. This would not be overcome if I assumed Source Localisation would instead seek to avoid the area due to the avoidance area not being defined and this avoidance not being enforceable.
As to the State’s contention that Source Localisation has stated a willingness to work with JYAC to avoid sites and intends to consult with JYAC, there is no evidence before me to suggest that this may be the case, aside from the assertions of the grantee party. While these assertions are positive they are non-binding and unenforceable without some form of agreement in place which would crystallise such commitments.
Having considered what would constitute interference to this particular site, the potential exploration activities and the absence of any binding instruments to mitigate, I have formed the view that there is a risk of interference as a result of exploration activities. It may be possible however, that these risks are overcome by the regulatory regime.

The Aboriginal Heritage Act

It may be possible that these risks are overcome by the regulatory regime. An examination of the reinstated Aboriginal Heritage Act is conducted within Nyamal v Red Rock commencing at [55]. In its supplementary contentions regarding the Aboriginal Heritage Act, the State makes an initial contention that there is nothing to indicate Source Localisation will act in a manner which will offend the Aboriginal Heritage Act, and in particular section 17 (State supplementary contentions [11]). I accept this contention.
The supplementary contentions of the State revolve mainly around the additional procedures and rights that a native title party possesses under the reinstated Aboriginal Heritage Act in the event of a s 18 application being made, which is an application for approval by the Minister to use land in a manner that may offend s 17. Section 17 makes it an offence to excavate, destroy, damage, conceal or alter a site. Approval granted via s 18 therefore, is to lawfully conduct activity which may do one or more of these things.
The State also draws attention to new procedures available to a native title party both in consultation requirements in the event of a s 18 application and in instances where they are aggrieved by a decision made by the Minister such as being able to apply to the State Administrative Tribunal for a decision review, presumably if the Minister has granted approval for site disturbance or destruction.
The State also refers to the Aboriginal Heritage Act Guidelines and Consultation Policy for s 18 applications, both of which are available via the Department of Planning Lands and Heritage (DPLH) website. Overall, the State contends, the regime established by s 18 of the Aboriginal Heritage Act should be afforded significant weight and this regime supports a determination by the Tribunal that the expedited procedure should apply (State supplementary contentions [19]).
JYAC make the initial point that the Tribunal should take note of the destruction of Juukan Gorge, an event that has generated a re-examination of Aboriginal heritage management and protection nationally, which occurred in circumstances that were in compliance with the Aboriginal Heritage Act. Based on this, JYAC contend that even with the presumption of regularity, the regulatory regime does not eliminate a real chance of interference (JYAC supplementary contentions [6]).
JYAC further contend that the regulatory regime is pointed towards a process whereby a grantee party can obtain permission from the Minister to damage or destroy a site and while the views of the native title party are now taken into account, this is ultimately a decision of the Minister (JYAC supplementary contentions [11]). As a result, JYAC contend, the operation of the Aboriginal Heritage Act cannot be relied on to fulfil the conditions of s 237(b) (JYAC supplementary contentions [9]) and the only effective way of eliminating risk is to require consultation via the right to negotiate process (JYAC supplementary contentions [7]).
While, as the State argues, further procedures have been provided to native title parties in the event of a s 18 being applied for, this contemplates that a site is to be interfered with given this is expressly the purpose of Ministerial permission via s 18. In other words, if Source Localisation were to apply for a s 18 permit, it would be to avoid prosecution if it disturbed or destroyed the site either inadvertently or in a planned way.
While I acknowledge the further measures provided to a native title party, this does not overcome the fact that the express reason for a s 18 is to disturb a site. Should an application be made, there is no guarantee it would be refused despite the native title party’s views being taken into account. Further, if JYAC were to exercise the further procedural rights of review native title parties now possess, it would be because permission has been granted to disturb or destroy the site. While I would echo the sentiments of Member Eaton at [62] of Nyamal v Red Rock, at this point I am not satisfied this would overcome the risk of interference.
In any event, should Source Localisation conduct even non-ground disturbing activity as is open to it, this would give rise to the possibility that the site in question is accessed, inadvertently or otherwise, which would constitute interference. This type of activity, that is simple access, does not appear to constitute an offence under s 17 of the Aboriginal Heritage Act and would therefore not be required to be subject to a s 18 application in the first instance. The consultation and procedural steps afforded to JYAC would not be triggered in this circumstance.
Given these circumstances, I am not satisfied the regulatory regime would overcome the risk of interference from exploration activities.

Regional Standard Heritage Agreement

To overcome this, JYAC asserts the only effective means of overcoming risk of interference is to require consultation through the right to negotiate. This is not the only option available as the parties could enter into an agreement in which binding commitments to eliminate the risk of interference could be made. In an attempt to provide this, Source Localisation states that it offered the RSHA however, as noted, this was rejected by JYAC. JYAC instead contends it has ‘developed a preferred heritage agreement that is culturally appropriate and contains arrangements for the effective protection of Martu heritage’ (JYAC contentions in reply [9]).
Relevantly, and in response to the assertion of the State that Source Localisation is willing to work with and consult JYAC to avoid interference, JYAC contend it is unlikely that effective consultation will occur given, amongst other reasons, that Source Localisation refused to consider JYAC’s preferred agreement (JYAC contentions in reply [8]).
The RSHA has been remarked upon in a number of other Tribunal determinations, notably Marputu v Gianni at [66] where President Dowsett stated ‘…the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk’. Member Cooley in Nyamal v Gianni remarks at [66] that ‘to rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn.’
Despite these and other Tribunal determinations and despite the RSHA being broadly rejected by native title parties across Western Australia in expedited procedure matters, the State continues to promote it as solution when the weight of evidence shows it is not. It could also be understood given this promotion of the RSHA by the Department of Energy, Mines, Industry Regulation and Safety (DEMIRS) in particular, there may be some surprise by grantee parties such as Source Localisation when a native title group rejects the RSHA and instead seeks an alternative.
It’s also possible that the DEMIRS promotion of the RSHA, which lends it more legitimacy as a solution than it would appear to have, gives rise to a level of inflexibility or lack of openness to other potential solutions by prospective grantee parties. This may be the case in this instance given the Source Localisation characterisation of the RSHA as ‘state endorsed’ (SL statement [8]), indicating reliance on it for this reason.
In this regard, Source Localisation could be forgiven for feeling somewhat misled by the State as to what a reasonable solution was. Even so, an alternative was presented which Source Localisation itself rejected, leaving the commitments of Source Localisation non-binding and unenforceable.
In my view then, an agreement in which an area of particular significance can be properly identified and set out in mapping between the parties in addition to enforceable commitments to avoid that area would overcome any risk of interference. There is no such instrument in this case, and in its absence and given the other factors discussed in this determination, I am of the view the risk of interference is not overcome.
As a result of this, I find there is a risk of interference to the site of particular significance.

Section 237(c): Is the grant of the licence likely to involve major disturbance to any part of the licence area?

JYAC does not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grants of the proposed license is likely to involve major disturbance to any of the land or waters concerned. As such, there is no factual material before me which indicates the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). Therefore, applying the approach outlined in Ward v Western Australia at [26] I find that major disturbance under s 237(c) is unlikely.

Determination

I determine the grant of exploration license E45/6223 to Source Localisation Pty Ltd is not an act attracting the expedited procedure.

Glen Kelly
Member
9 October 2024