Jaru Native Title Claimants/Western Australia/Golden Granite Pty Ltd/Krama Pty Ltd - [2013] NNTTA 123

NATIONAL NATIVE TITLE TRIBUNAL

Jaru Native Title Claimants/Western Australia/Golden Granite Pty Ltd/Krama Pty Ltd, [2013] NNTTA 123 (22 August 2013)

Application No: WO2012/0437

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Jaru Native Title Claimants (WC2012/003) (native title party)

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The State of Western Australia (Government party)

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Golden Granite Pty Ltd/ Krama Pty Ltd (grantee parties)

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

Tribunal: Helen Shurven, Member

Place: Perth
Date: 22 August 2013

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1966 (WA)

Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24 (‘Geotech International’)
Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/ Brockman Exploration Pty Ltd [2013] NNTTA 100 ('Brockman Enterprises')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 ('Parker 1')
Parker v Western Australia and Others (2008) 167 FCR 340 ('Parker 2')
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)
Ward v Western Australia (1996) 69 FCR 208 ('Ward')
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Asia Investment Corporation’)

Representatives of the Ms Zoe Ramsay, KRED Enterprises Pty Ltd

native title party:
Representatives of the    Ms Caitlin Martin, State Solicitor’s Office
Government party:          Ms Bethany Conway, Department of Mines and Petroleum

Representative of the Mr Peter Del Fante, Corporate Tenement Services
grantee party:

REASONS FOR DETERMINATION

On 11 January 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4636 (‘the proposed licence’) to Golden Granite Pty Ltd/ Krama Pty Ltd (‘the grantee parties’). The Government party tenement register notes that the application for this proposed licence is held jointly by these two companies. The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
According to the notice:
• the proposed licence is approximately 51.89 square kilometres in size;
• the proposed licence is located 58 kilometres south west of Halls Creek, in the Shire of Halls Creek; and
• the native title party had until four months after the notification date, that is, until 11 May 2012, to lodge an objection against the expedited procedure statement.
On 11 May 2012, an objection application was lodged on behalf of the Jaru Native Title Claimants (WC2012/003, ‘the native title party’) against the expedited procedure statement. The native title party claim wholly overlaps the proposed licence.
The registered native title claim of the Lamboo People (WC1999/020) also overlaps the proposed licence, by 19.27 per cent, but no objection was made by this claim group against the expedited procedure statement.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the closing date for lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. I was appointed by the then President, Mr Graeme Neate, on 19 December 2012 as the member for the purpose of conducting the inquiry.
It appears from the status conference notes that this matter was dogged by delay, including the grantee parties and native title party representatives being unable to attend various status conferences or respond to various drafts of an agreement in a timely manner. The native title party representative indicated the matter needed to be considered by the claim group and that the grantee parties would be expected to contribute to the cost of the meeting. An estimate was provided of between $7,500 and $30,000. Parties were unable to reach agreement and on 19 June 2013, the grantee parties requested the matter proceed to inquiry.
The following information and evidence was provided in relation to the proposed licence:

materials from DMP on 25 June 2013, including: report and plans from the Department of Aboriginal Affairs (‘DAA’ – formerly the Department of Indigenous Affairs) Sites Register; copy of the tenement application; and a Tengraph quick appraisal.
contentions and evidence of the native title party dated 9 July 2013, together with an affidavit of Ms Lizzy Jingle, sworn on 20 June 2013 (at Annexure A of this decision), and an affidavit of Ms Georgina Yeeda, sworn on 13 June 2013 (at Annexure B). Ms Yeeda lives on Indigenous held Lamboo Station on the proposed licence and Ms Jingle lives at Fitzroy Crossing. I accept both deponents have authority to provide evidence for the native title party.
contentions of the Government party dated 22 July 2013.

The grantee parties advised on 12 August 2013 that they would not be making a submission and would rely on the State’s contentions.
All parties confirmed they had no further submissions to make and no objection to the matter proceeding to be determined on the papers. I believe this inquiry can be determined ‘on the papers’, as provided for by s 151 of the Act.

Legal principles

Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a)      the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters, on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).

Evidence in Relation to the Proposed Act

Government Party

Government party documentation establishes the underlying tenure on the proposed licence is:
· Indigenous held pastoral lease (I3114/1109 – Lamboo) at 19.3 per cent; and
· Pastoral lease (3114/1242 – Ruby Plains) at 80.7 per cent
Government party documentation establishes three previous exploration tenements existing between 1995 and 2011 and overlapping the proposed licence between 0.9 and 75.0 per cent, and all now surrendered or expired. There were no previous mining tenements noted, and one timber reserve existing between 1962 and 1963 overlapping at 27.9 per cent.
The quick appraisal document shows that services affected are: two historic mine sites; eight non perennial major water courses (including Creek Garden); 44 non perennial minor water courses and one spring/soak/rock hole/water hole. As there are no mining tenements shown on the quick appraisal, presumably the historic mine sites are related to exploration activities, although no party raises the possible location of these sites or extent to which such may have affected the proposed licence area in relation to native title party rights and interests.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal sites database maintained by the DAA, pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’), shows there are no registered sites within the proposed licence.
The draft tenement endorsements and conditions extract provided by DMP indicates that the grant of each of the proposed licences will be subject to the following conditions; in addition to the four standard conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]):
5. The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of the grant of the licence; or registration of a transfer introducing a new licensee; advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licencee attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependant vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependant vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas (Fitzroy River and Tributaries) the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11.Advice shall be sought from DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Area (Canning-Kimberley) the following endorsement applies:
12.The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.

The Government party do not appear to intend to impose any heritage conditions, such as a Regional Standard Heritage Agreement, in relation to the proposed licence.
Government party contentions are outlined in detail under the consideration of each limb of s 237 of the Act.

Native Title Party

The native title party filed contentions, as well as affidavits of Ms Jingle and Ms Yeeda, which are set out at Annexure A and B of this decision respectively. The native title party representative confirmed by way of cover letter to the affidavits that the references to Golden Granite Pty Ltd as the grantee party, is intended to also include Krama Pty Ltd.
In relation to s 237(a), the native title party cites the passage of Carr J in Ward, that the very thought of intensive exploration activities could interfere with ‘community life’ (at 14). As members of the Tribunal have said repeatedly in previous decisions, since the 1998 amendments to the Act the expedited procedure is only not attracted if there is direct interference with the carrying on of community and social activities of the native title holders which must involve a physical component. Carr J’s statement based on the previous wording ‘community life’ in s 237(a) is no longer applicable.
The native title party assert that its members undertake the following social and community activities on the proposed licence area:
·'belong to the country upon which the tenement area is’ (at 16(i) of the contentions; Ms Jingle’s affidavit at 4-5; and Ms Yeeda’s affidavit at 3, 5-7);
·'live close to the tenement area’ (at 16(ii) of the contentions; Ms Jingle’s affidavit at 4-6; and Ms Yeeda’s affidavit at 9);
·'go to the tenement area, to conduct their community life, regularly’ (at 16(iii) of the contentions; Ms Jingle’s affidavit at 11; and Ms Yeeda’s affidavit at 11 and 14);
·'fish in the tenement area’ (at 16(iv) of the contentions and Ms Yeeda’s affidavit at 14);
·'hunt kangaroo, porcupine and goanna in the tenement area’ (at 16(v) of the contentions and Ms Jingle’s affidavit at 9);
·'collect food and bush medicine such as sugar bag, yams, bush tomatoes and onions in the tenement area’ (at 16(vi) of the contentions and Ms Jingle’s affidavit at 10);
·'make objects from products they have collected in the tenement area such as boomerangs' (at 16(vii) of the contentions and Ms Yeeda’s affidavit at 18);
·'teach traditional hunting, fishing and gathering cultural ways to their children on the tenement area (at 16(viii) of the contentions; Ms Jingle’s affidavit at 9-10; and Ms Yeeda’s affidavit at 11-12 and 14-15);
·'teach skills to their children on the tenement area which can be used to generate income (at 16(ix) of the contentions; Ms Jingle’s affidavit at 9-10; and Ms Yeeda’s affidavit at 11-12 and 14-15); and
·'use the tenement area to teach their young people in a way which preserves the Jaru culture (at 16(x) of the contentions; Ms Jingle’s affidavit at 9-10; and Ms Yeeda’s affidavit at 11-12 and 14-15).
In relation to s 237(b), the native title party state that the proposed licence is located in an area which ‘has some significant sites’, and that the DAA register ‘is not a true representation of the volume of special places within the tenement area’ (at 19). In particular, the native title party contentions state they have Dreamtime stories connected to the proposed licence area (at 29(i) and (iii)).
Ms Jingle indicates in her affidavit that ‘[t]here are places in the tenement area that are important to the Jaru people’ (at 11) and that '[t]here are some special burial sites in and around the exploration license area’ (at 12). She goes on to describe the story of the ‘little people Murungurr who are from old dreaming time Ngarangarni side’ and the consequences the Murungurr will cause for those who go on Jaru country without permission from the native title party (at 15-20). Ms Yeeda also refers in her affidavit to the need under the native title party’s traditional law for anyone who is not Jaru to ask ‘permission and direction’ before going on to country (at 21).
The native title party’s contentions state there are burial sites in the area (at 28(ii)), which Ms Jingle notes in her affidavit (at 12, as noted above). Ms Yeeda refers to the proposed licence area as being a ‘special place’ for her Uncle Eddie Yarloot’s brother and uncle because they went to the area often during their lives for fishing and, as they were both artists, to collect wood to make boomerangs and other artefacts (at 18).
The native title party argues there are areas and sites of significance under the terms of s 237(b) of the Act which do not fall within the definition of ‘site’ under the AHA (at 20-25), and assert, for example, that ‘[m]ere presence at some areas may cause direct interference’ (at 24). They state where tenement areas are shown to be ‘site rich’, it is incumbent upon the grantee parties to lead some evidence to provide a basis upon which the Tribunal might be assured that interference, intentional or otherwise, is not likely given the practical difficulties with avoiding interference with sites in site rich areas, where not all sites may be included on the DAA site register (at 18).

In relation to s 237(c), the native title party contends that in the proposed licence area there are sites ‘which are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorised persons may not be present at them’ (at 36). The native title party subsequently refer to their ‘rights which may be subject to major disturbance’, which include the right to protect sites, right to care for country, right to go out onto country, right to hunt and fish on country, right to exercise cultural heritage storytelling and ceremony, right to gather produce from country, right to teach young people culture and right to visit historically significant places (at 37).

Grantee Parties

The grantee parties have not submitted any contentions in this inquiry. However, the Government party submission include an appendix containing a letter from the representative for the grantee parties to the Mining Registrar dated 28 July 2011, in which the grantee parties provided a proposed method of exploration. This includes: detailed literature research; interpretation of aerial photography; capture, analysis and interpretation of existing new data including remote sensing imagery datasets; systematic sampling and survey of the entire area; selection of potential drill targets; preliminary drilling and sample recovery from drilling; and subsequent assay analysis.

Considering the Evidence in context of s 237 of the Act

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). 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 (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of a grantee party in a particular matter are relevant in assessing whether their activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The native title party’s evidence in relation to s 237(a) is outlined at [24]-[26] above.
It appears that the claim in total is 28,915.2 square kilometres and the area of the proposed licence is just over 51.89 square kilometres. However, neither the native title party contentions nor the affidavits provide particularly detailed information about the extent and frequency of use of the proposed licence area in relation to the activities the native title party states are conducted within the proposed licence. The Government party note that while the Tribunal can accept Ms Jingle and Ms Yeeda’s affidavits are accurate statements of genuinely held beliefs and concerns, neither affidavit is particularly specific in its description (at 21).
The Government party states it is unclear whether the Jaru people currently engage in the activities deposed to, or whether these activities were the ones the native title party used to engage in within the proposed licence area (at 22 and 41-44). I agree that much of the evidence in relation to community and social activities is couched in the past tense. I also agree that the concerns deposed to are quite broad in their drafting, but do not agree with the Government party contentions that the affidavits are ‘speculative’ (at 23).
I disagree with the Government party’s contentions (at 45) that members of the native title party conducting their community life or teaching their children (to the extent that this is not in their capacity as pastoral leaseholder rather than capacity as native title holder) are not activities to which s 237(a) of the Act applies (see Brockman Exploration at [44]).
Government party contentions also indicate there is not likely to be direct interference with the community and social activities of the native title party because:
• The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, which are likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area (at 46(a));
• The proposed licence area is almost entirely covered by pastoral leases, which have affected at least any native title rights to control use of and access to the relevant land (at 46(b));
• There are no aboriginal communities within the proposed licence (46(c));
• The low-scale and infrequent exploration activities planned by the grantee parties do not appear likely to have any real disruptive effect upon the ability of the native title party to fish, hunt or collect bush tucker in the proposed licence area (46(d)); and
• Hunting and mineral exploration activity are, by their nature, inherently capable of coexistence (46(e)).
There is no evidence of previous mining activity, or that the non indigenous pastoral lease has interfered with the native title party. However, as the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation at [14]). Based on the available evidence, I cannot say it appears that exploration activities by their usual nature, would directly interfere with the community and social activities of the native title party as they are characterised in this matter.
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions. As noted, there are no DAA Registered Sites within the proposed licence, but this does not mean there may not be other sites, or areas of particular significance to the native title party, within the proposed licence 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 native title party’s evidence directed at s 237(b) of the Act is outlined at [27]-[30] above, and the grantee parties intended activities are outlined at [32] above.
I disagree with the native title party’s assertion that, where a proposed licence area is claimed to be ‘site rich’, the presumption is that interference is likely. As the Government party note (at 19-20), the presumption is that the grantee parties will comply with the regulatory regime, and unless evidence indicates otherwise, and I am satisfied there is no such evidence to the contrary in this case. The question is, even in complying with the regulatory regime, is interference with sites of particular significance likely if the expedited procedure applies and the normal negotiations between grantee parties and a native title party do not occur?
While the native title party assert there are ‘special burial sites’ on the proposed licence area, Ms Jingle does not identify the location of these sites, apart from them being on the proposed licence. Ms Yeeda refers to the exploration licence being a special place for two brothers and uncles (related to Mr Yarloot), and discusses the significance to an extent, and the connection of the Yarloot family to the native title party (at 11). I agree with the Government party that from this evidence it may be implied there are at least two burial sites in the area of the proposed licence. I note they are referred to as not merely 'burial places', but rather are 'special burial places'. I do not find that particular sites are identified in the contentions or affidavit material in relation to the Murungurr. Whether evidence about the consequences of disturbing the Murungurr reflects a general spiritual concern to which s 237(b) of the Act does not apply, depends on the evidence of the extent to which it attaches to physical interference with an identified area or site of particular significance. I do accept there are places that are ‘special’ which I accept as being of particular significance, namely the burial sites ‘in and around the exploration licence area’ (Ms Jingle’s affidavit at 14).
The Government party does argue that the burial places are not sites of particular significance, in that they do not stand out from other sites or areas (at 58). However, Ms Yeeda does outline the importance of the Yarloot family - for example, '[t]he exploration licence area is on a part of the Station which my Uncle Eddie Yarloot's family is most connected to' (at 12). She goes on to outline that Mr Yarloot's brother and uncle passed away, and it appears they are buried on the proposed licence area. The proposed licence 'was a special place for the two brothers and their uncle' (at 18). As such, I accept that these burial sites do stand out from others, as they have been described in this matter, and that they are places of particular significance to Mr Yarloot and his family, and to the native title party as a result of the Yarloot family connection to the proposed licence area and surrounds.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
In the general course of events, the regulatory regime is often held to be sufficient to minimise the risk of interference of sites. However, in Butcher Cheryl (at [91]), Member O'Dea noted:
If I had not had the benefit of the sworn evidence of the grantee’s deponents concerning the manner in which they intended to conduct the exploration program in relation to the proposed licence, and the steps they intended to take in order to address the issues raised by the native title party in relation to ss 237(a) and 237(b), I would not have been satisfied that the risk was remote, and indeed, it may well have been real.
In addition, the actions to be taken by the grantee parties to avoid interference to any sites of particular significance are often crucial to the assessment under s 237(b). As Member O'Dea explained in Geotech International (at [43]):
...the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided.
In the present matter, the grantee parties have not provided any contentions, and limited information has been provided by the Government party as to the grantee parties proposed activities. There is no evidence before me that the grantee parties have offered to enter into a heritage agreement and no response in relation to the special burial sites said to exist on the proposed licence. The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]), and this matter certainly has not been an easy one to draw conclusions on.
I find that although the evidence in relation to s 237(b) is somewhat general and not entirely satisfactory, I have on balance accepted that burial sites exist on and around the proposed licence and that they are sites of particular significance. In making this finding I have taken into account there appears to be a history of native title party activity in and around the area, including the Indigenous held pastoral lease, that Ms Yeeda is on the Register of native title applicants for the Jaru claim, that two senior men of the native title party are likely to be buried on or near the area and that information has been provided as to the particular significance of burial areas to members of the native title party. In addition, I have considered that no information has been provided by the grantee party which challenges the evidence of the native title party, or that gives any indication of how such burial sites may be approached by the grantee party.
While the evidence in relation to native title party activities was not particularised sufficiently to enable me to conclude there would be interference associated with s 237(a) of the Act, it does provide support that there has been long term and ongoing occupation by the native title party in this area and so there are likely to be burial sites in the area. I am satisfied that sites of particular significance in the form of certain burial sites exist in this area, and it is likely that inadvertent disturbance could occur to such burial sites in this area due to the activities of the grantee parties, executing the full suite of rights they are entitled to, even despite the regulatory regime.
The Government party contends (at 15) that the grantee parties’ letter to the Mining Registrar (referred to at [32] above) indicates the grantee parties 'will not exercise the full suite of rights conferred by section 66 of the Mining Act'. However, there is nothing in that letter, on my reading of it, which indicates the grantee parties will not exercise the full suite of rights - the letter merely outlines the 'proposed method of exploration' for year 1, and states that year 2 expenditure will depend on success of the year 1 program. There is no information about subsequent years, or about the extent to which the grantee parties will exercise their rights in the context of what they are able to do under the Mining Act.
The Government party expedited procedure is said to apply when the relevant threshold of likelihood of interference (as described in s 237 of the Act, Tribunal decisions and case law) is reached. It is sometimes a fine balance to draw conclusions in relation to the likelihood of interference, as it has been in this case. For the purposes of s 237(b), I conclude there is likely to be interference and as a result, the expedited procedure does not apply to the grant of this licence.

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

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party’s evidence in relation to s 237(c) is outlined at [31] above, and the grantee parties intended activities are outlined at [32] above.
To the extent the native title party suggest the Jaru people have a particular process which they prefer to go through when strangers enter their country, I agree with the Government party (at 68 and 72-79) that the mere fact that strangers enter the area is not ‘interference’ with, or a ‘major disturbance of’, in relation to s 237(c). I also agree with the Government party (at 69) that s 237(c) of the Act is only enlivened when there is, in fact, a significant, direct physical disturbance of land and waters by the grantee parties, and does not involve interference with ‘rights’ of the native title party outside of that context.
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including:
·    The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
·    The endorsement to be placed on the proposed licence dealing with water;
·    The endorsements on the proposed licence directing the grantee parties attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licences E80/4636 to Golden Granite Pty Ltd/Krama Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
22 August 2013

ANNEXURE A
AFFIDAVIT OF ELIZABETH JINGLE

1.    My name is Lizzy Jingle, my bush name is Gayut and my skin group Nyawuru. My bush name came from the sound of a waterfall. I have two sisters, all three of us got our name from the sound of a special waterfall and the old people wanted to name us after. The waterfall was in the back country from Willy Willy, we called that place Daliman. The waterfall area is all dried up now, but I know about this water fall from the old people. My Jariny, which is my birth totem, is the Bush Potato Beera.
2.    My mother was Amy Rogers, her bush name was Kayder and her skin group was Nyajili. My mother was a Jaru Gooniyandi woman.
3.    My father was a Kija man from Chinaman Gardens.
4.    I grew up on Lamboo Jaru and walked all over that country with the old people and travelled sometimes by donkey listening to their stories. My Uncle taught us all about where the special places were on that land, burial places and other special places.
5.    The Jaru named applicants identified that Eddie Yarloot, who is part of my family should help to decide who might be the best person to talk about this country. Eddie Yarloot identified I, a real Traditional Owner should be spoken to about the place discussed in this affidavit. Under our Law I have authority to speak about Jaru land matters.
6.    I know the area where Golden Granite Pty Ltd “the grantee party”, have applied for Exploration Licence Number E80/4636 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

7.    We know the area around Garden Creek.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
8.    The exploration licence area falls wholly within Jaru country.
9.    My family and community use (sic) to go out of the place of the exploration license are as a special holiday camp and hunting ground. The hunting on the exploration license area was very good and included goannas, kangaroo and porcupine.
10.     We use (sic) to collect bush tucker when we go out to the tenement. What we use (sic) to collect depended on what time of year it is. The bush tucker included sugar bag, yams and bush tomatoes and onions.

AREAS OR SITES OF PARTICULAR SIGNIFICANCE

11. I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Jaru people.
12. There are some special burial sites in and around the exploration license area.
MAJOR DISTURBANCE TO LAND OR WATER

13.     I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
14.     Their exploration could cause a real disturbance to our ancestor’s burial places where they have become one with the land or their spiritual place which is also linked to the land.
15.     In the area of the exploration license area there are little people Murungurr who are from old dreaming time Ngarangarni side. They walk around and look after country, they can be cheeky and give you humbug. You cannot see the Murungurr but we Jaru people can sense with our spirit when they are around.
16.     The Murungurr do not like people coming onto country without having been invited or announced. When you go out to the exploration license area you should sing out to the country and the Murungurr and let them know you are coming proper way with their permission. When you are visiting the country of the exploration licence area and you sing out to the country and the Murungurr sometimes the Murungurr will give you a sign that they heard you and they are happy for you to be there. After you sing out you need to be really quiet in the country and listen for sounds to see if you can hear that sign.
17.     If you go out to the country without permission you can get sick, have an accident or get lost. Not anyone can sing out to the country, Traditional Jaru Owners need to go out to the country with strangers to announce their presence and let the Murungurr know the strangers are invited and have not gone out to country without permission.
18.     It is dangerous for the grantee to go out to the exploration license area without proper Jaru permission as the Murungurr will cause humbug for them, if the grantee is properly introduced to the Murungurr then they will welcome the grantee and also protect them in the exploration license area from accidents and bad luck.
19.     The traditional owners would like to help the explorers by announcing them to the country. To disturb the country may cause humbug for everyone. We Jaru people need to clear the country and do heritage surveys before anyone goes out there. It is important the explorers get the right Traditional Owners to go out with them not just one family, there are a few families connected to this country but my family is the proper family to talk to about this part of the Lamboo Station.
20.     Under our law anyone who is not Jaru needs to ask permission and direction before they can go out on to our country so that they can be accepted by that country and we can protect our special places.

ANNEXURE B
AFFIDAVIT OF GEORGINA YEEDA

1.    My name is Georgina Yeeda.
2.    I was born on 3 October 1971 in Port Hedland.
3.    My mother was Winnie Button until she married my father Charlie Yeeda. My mother is a Jaru woman from old Lamboo, her mother is the second oldest of the Rogers family until she got married to a Button and her father was a member of the Button family.
4.    My father was a Kija man.
5.    We came back from Port Hedland to Lamboo country when I was very young, most of my childhood was spent around Lamboo. I grew up in and around Lamboo and my mother told me Jaru stories and taught me all about traditional Jaru ways and Jaru country. I remember growing up around Lamboo and travelling all around Jaru country. The only time I did not live around Lamboo was when I was sent, like all of the children into the school hostel to do my schooling.
6.    I am a Jaru named applicant. At a meeting of all of the Jaru named applicants the group decided I was the right person to speak for this country with my Uncle Eddie Yarloot who is sitting with me while I make this statement.
7.    Under our Law I have authority to speak about Jaru land matters.
8.    I know the area where Golden Granite Pty Ltd “the grantee party”, have applied for Exploration Licence Number e80/4636 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked ‘A’.
9.    I know the area of the exploration license area very well as it is on the pastoral lease which our Aboriginal Corporation owns and which I live on.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

10.     I live at Lamboo Station which is on the exploration license area and it takes under an hour to get there if the road is good.
11.     The families who are all connected to the area around and of the exploration license areas are the Yeeda, Riders, Yarloot, Button, Jingle/Rogers, Woodhouse and Imberlong families. These families lived together, the old people walked and lived all of this country but some families feel more strongly about some parts of old Lamboo but for the exploration license area is all of the groups.
12.     The exploration license area is on a part of the Station which my Uncle Eddie Yarloot’s family is most connected to. Uncle Eddie Yarloot is sitting with me as I give this affidavit.
13.     The exploration licence area falls wholly within Jaru country.
14.     The exploration licence area has always been a special fishing and camping place for our community.
15.     Because the Jaru people of Ngunjiwirri Corporation own the Station which the exploration license area is on, the Jaru of Ngunjiwirri Corporation also have cattle which use the exploration license area. The Jaru people of Ngunjiwirri Corporation rely on the income from the exploration license area to keep the Corporation going.
16.     No-one can come onto the station without telling us where they are going and what they are going to do. The station has always been managed this way as long as the Jaru people of Ngunjiwirri Corporation have held the lease as a Corporation. When people come out to the station and let us know where they are going we can direct them away from special places or send monitors out with them.
17.     If an Explorer comes out to exploration license area they need to follow the rules the Jaru people of Ngunjiwirri Corporation have created to care for the station, the country which is Jaru, and covered by the lease.
SPIRITUAL SIGNIFICANCE
18.     I know that my Uncle Eddie Yarloot is keeping some clothes for his brother and uncle who passed away and he will take those clothes out the exploration license area next time he goes and leave them there as a gift for his brother and uncle. Uncle Eddie Yarloot use (sic) to go out to the exploration license area with his brother and uncle often when they were alive. They would go out for fishing and to collect wood to make boomerangs and other artefacts because his brother and uncle were artists. His deceased family’s things should be in the country around the exploration license area because it was a special place for the two brothers and their uncle and the people who have passed away would have wanted Eddie to do this.

MAJOR DISTURBANCE TO LAND OR WATER

19.     I am aware of the activities which the grantee party could do on the exploration licence area under the Mining act if they are granted an exploration licence.
20.     Their exploration could cause a real disturbance to our water in the exploration licence area which would affect the water ways which our cattle rely on, and the good fishing in the exploration license area. In this way the grant of the exploration license area may affect our income.
21.     Under our law anyone who is not Jaru needs to ask permission and direction before they can go out to our country so that they can be accepted by that country and the Jaru people of Ngunjiwirri Corporation can protect our special places.