Johnson Taylor and Others on behalf of Njamal/Western Australia/XFE Pty Ltd - [2013] NNTTA 128

NATIONAL NATIVE TITLE TRIBUNAL

Johnson Taylor and Others on behalf of Njamal/Western Australia/XFE Pty Ltd, [2013] NNTTA 128 (27 August 2013)

Application No: WO2012/0812

IN THE MATTER of the Native Title Act1993 (Cth)

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

Johnson Taylor and Others on behalf of Njamal (WC1999/008) (native title party)

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The State of Western Australia (Government party)

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XFE Pty Ltd (grantee party)

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

Tribunal: Helen Shurven, Member

Place: Perth
Date: 27 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(2), 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 61(2), 66

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’)
Kanak v National Native Title Tribunal (1995) 61 FCR 163, ('Kanak')
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’)
Neowarra v State of Western Australia [2003] FCA 1402, ('Neowarra')
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431, ('Wakaya')
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’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v State of Western Australia [2001] FCA 19, ('Smith')
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Western Australia/Smith and Ors on behalf of the Gnaala Karla Boodja People/South Coast Metals Pty Ltd [2003] NNTTA 239, ('Gnaala Karla Boodja')
Wilma Freddie and Ors on behalf of the Wiluna native title claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17, ('Emergent')
Wilfred Goonack and Others/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)
Wilma Freddie and Ors on behalf of the Wiluna native title claimants/Western Australia/Globe Uranium Ltd [2007] NNTTA 37, ('Globe Uranium')

Representatives of the Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation

native title party:

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

Representatives of the Mr Greg Abbott, M&M Walter Consulting
grantee party:

REASONS FOR DETERMINATION

On 4 April 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E45/3727 (‘the proposed licence’) to XFE Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
According to the notice:
• the proposed licence is approximately 196 square kilometres in size;
• the proposed licence is located 15 kilometres east of the town of Shay Gap, in the Shire of East Pilbara;
• the native title party had until 6 August 2012 to lodge an objection application against the expedited procedure statement.

The Njamal native title claim (WC1999/008 – registered from 3 June 1999) wholly overlaps the proposed licence. On 30 July 2012, an expedited procedure objection application was lodged with the Tribunal by Johnson Taylor and Others on behalf of the Njamal native title claim group (‘the native title party’) in relation to E45/3727.
The proposed licence also overlaps the native title claim of the Birrimaya People (WC1995/060 – registered from 10 October 1995) by 47.53 per cent. An objection received from the Birrimaya People (National Native Title Tribunal ('Tribunal') matter WO2012/0572) was withdrawn on 1 May 2013.
In accordance with standard practice, the Tribunal gave directions to the 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 s 29 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.
On 19 December 2012, I was appointed by then President Graeme Neate as the Member for the purpose of conducting the inquiry.
Parties sought instructions and negotiated in relation to the matter for several months, and directions were extended on a number of occasions to enable negotiations to continue. It appears the negotiations were predominantly concerned with making agreement on exclusion zones around areas on the proposed licence - parties were unable to reach agreement and the matter was referred to inquiry.
Final directions were issued by the Tribunal, and in compliance with those:
·    the Department of Mines and Petroleum ('DMP') provided documents to the Tribunal and other parties on behalf of the Government party on 6 May 2013;
·    the native title party provided a statement of contentions on 24 June 2013, together with a sworn affidavit of Anthropologist, Ms Marnie Tonkin (dated 24 June 2013);
·    the grantee party provided a statement of contentions on 1 July 2013;
·    the State Solicitor’s Office (‘SSO’) provided the Government party’s statement of contentions on 8 July 2013.
The Government party contentions state that evidence provided by Ms Tonkin does not amount to first hand evidence of the native title party. I agree with that proposition. Nevertheless, in her affidavit, Ms Tonkin outlines her qualifications and experience, and relationship with the native title party. The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and support the Tribunal’s acceptance of it. The Federal Court has found that expert anthropological evidence of traditional laws, customs and connection to country which is based on field work and accords with the member of the native title claim group’s evidence, is probative (Neowarra at [388]).
As the Full Court of the Federal Court has noted, an anthropologist such as Ms Tonkin may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear (Wakaya at [89]). Ms Tonkin has stated that due to logistical reasons, evidence from native title party members themselves was unable to be provided. I accept this does occur on occasion, and I accept that Ms Tonkin has spoken directly with members of the native title party in gathering the evidence she has provided, and has their authority to so present it.
Her affidavit is supported by a report, annexed to the affidavit, which clearly delineates the information obtained from specific members of the native title party. Unlike the factual matrix in Emergent, where the anthropologist went beyond the evidence of the native title party, in the present matter Ms Tonkin, as the native title party anthropologist, reflects the evidence provided by the native title party. While it does not replace evidence from the native title party, I accept her evidence as being probative in relation to this inquiry, on the basis that she has expressed her opinion which is based on her direct knowledge and experience with the native title party and their claim area related to this proposed licence, as well as evidence from the native title party. I deal with this evidence in more detail at [42]-[47] of this decision.
The Tribunal provided parties with a map of the proposed tenement on 6 August 2013 to be used for the purposes of this inquiry, and no objections were received in response.
All parties agreed the inquiry could proceed to be determined ‘on the papers’ as per s 151 of the Act, and I am satisfied that it can be adequately determined in that way.

Legal principles

While the native title party have not stated they restrict their contentions to s 237(b) only, they have not provided any detailed or specific contentions that clearly and discretely relate to s 237(a) and s 237(c). As such, the main substance of this determination is directed at a consideration of s 237(b).
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 history and interpretation of s 237(a) from Tarlpa at [57]-[64].
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38] and [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 is likely to be done, rather than what could be done (see Little, in particular [588]-[589]).

Evidence and contentions in relation to the proposed act

The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs ('DIA', now the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.
Government party documentation establishes the significant underlying land tenure of the proposed licence to be as follows:
·   Pastoral Lease 3114/1215 (Yarrie) at 39.6 per cent
·   Pastoral Lease 3114/1233 (Muccan) at 5.4 per cent
·   Three general leases totalling just over 55 per cent
·   Two historical leases at 46 per cent in total
·   Special prospecting authority (PA67 – STP-SPA-0055) at 37.3 per cent
Government party documentation establishes: 13 previously granted exploration licences overlapping the claim area variously between 0.1 per cent and 79.2 per cent between 1984 and 2010; 7 mining leases all overlapping at approximately 0.1 per cent and all granted and surrendered between 1993 and 1994; and 15 temporary reserves overlapping between 100 per cent and less than 1 per cent between 1958 and 1981. All previously granted licences are now surrendered, cancelled or expired.
There are three live miscellaneous leases over the area, all granted in 2008 and overlapping between 0.1 and 0.2 per cent.
The quick appraisal document shows that services affected include: seven minor roads and ten tracks; some railway infrastructure; two fence lines; three well bores (two with windmills, including Cabbage Tree); 29 minor non-perennial watercourses (including Salt Well Creek); and five Standard Survey Mark's (Yarrie 23-27 inclusive).
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows there are five DIA registered sites within the proposed licence as follows:
·Site ID 6285, Chinaman Springs 2 (artefacts/scatter);
·Site ID 6291, Cattle Gorge 8 (artefacts/scatter/rock shelter);
·Site ID 6969, Ulungnganya (a closed site, ceremonial/mythological/water source);
·Site ID 6994, Chinaman Springs (a closed site, artefacts/scatter/archaeological deposit/rock shelter/water source);
·Site ID 28972, PIL_1063 (artefacts/scatter/archaeological deposit/rock shelter).
Government party contentions indicate there are six other heritage places recorded on the DIA’s heritage inquiry system and these are:
·      Site ID 6288, Cattle Gorge 5 (artefacts/scatter, rock shelter)
·      Site ID 6289, Cattle Gorge 6 (artefacts/scatter, rock shelter)
·      Site ID 6290, Cattle Gorge 7 (artefacts/scatter, rock shelter)
·      Site ID 12138, Shay Gap (painting)
·      Site ID 21381, Cundaline Ridge (mythological)
·      Site ID 21396, Cattle Gorge 9 (artefacts/scatter)
Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licence.
The draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), in addition to the following:
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, 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 details of the grant or transfer.
7.The rights of ingress to and egress from Miscellaneous Licence 45/127, 45/187, 45/195 and 45/196 being at all times preserved to the Licensee and no interference with the purpose and installations connected to the Licence.
8.No interference with Geodetic Survey Stations G45-15 and Yarrie 23 to Yarrie 27 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.No mining on a strip of land 60 metres wide with the Railway Line as the centre line and no minerals being deposited or machinery or buildings being erected on such strip of land.
10.Blasting operations being controlled so that no damage or injury can be caused by fly rock, concussion, vibration or other means.
11.No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
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 the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder;
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained;
3.The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land;
4.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for Iron.
The Government party states in its contentions (at 20) that it will also place the following Regional Standard Heritage Agreement condition on the grant of the proposed tenement (‘RSHA condition’):
In respect of the area covered by the licence, the Licensee, if so requested in writing by the Njamal, the Native Title Claimants in Federal Court application no. WAD6028/98 (WC99/8), such request being sent by pre paid post to reach the Licensee’s address not more than 90 days after the grant of this licence, shall within 30 days of the request execute in favour of Njamal the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups and the Pilbara Native Title Service.

Evidence and contentions provided by the grantee party

The grantee party statement of contentions indicates that it supports the SSO contentions and provides further detail as outlined below.
In regard to s 237(a), the grantee party states (at 1.1) that it will not exclude any community activities upon the proposed licence unless, during a particular exploration activity, it is considered temporarily unsafe for the conduct of community activities. The grantee party states it will notify the native title party prior to any exploration activity ‘likely to restrict the gathering of bush tucker and medicines, fishing and hunting of game and will consult with the Traditional Owners to minimise any disturbance’ (at 1.2).
In regard to s 237(b), the grantee party notes (at 2.1-2.3), there are five registered Aboriginal sites, that the grantee party will comply with the AHA, and has never been prosecuted in relation to breaches of the AHA. The grantee party states it will ‘take steps to protect Aboriginal heritage sites by agreeing to have heritage surveys undertaken by Traditional Owners if requested within ninety (90) days of the grant of the tenement and to adhere to the Aboriginal Heritage Act’ (at 4.2).
As to s 237(c), the grantee party contends the exploration activity will not constitute 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 (at 3.1). It further states that it will restore land immediately after carrying out its exploration programme, and that it will be restored as close as possible to the condition prior to exploration being undertaken by the grantee party or its agents.

Evidence and contentions provided by the native title party

The native title party contentions state (at 2a), that the inquiry should be conducted in light of ‘the requirement to construe the NTA in a beneficial manner to the native title parties’ (Kanak at page 124).
They also point to the relevance of the grantee party’s intentions. Gnaala Karla Boodja is cited stating grantee party evidence is relevant to likelihood. They also refer to a matter where directions were given by consent that the grantee party provide details of their methods of exploration, details of strategies for the protection of Aboriginal sites and details of proposed rehabilitation of the area - it is not clear, however, which case they are referring to on this point, or the precise point that is being made in relation to grantee party activities.
I do agree, given that no information has been provided regarding the grantee party's intended activities, it is open for the Tribunal to infer that the grantee party will exercise their rights under the Mining Act to their full extent.
Native title party contentions in relation to s 237(b) state (at 17) there are areas of particular significance in the proposed licence, and also that areas or sites of particular significance outside the proposed licence ‘may be impacted upon by the grant of the proposed Tenement’ (citing, for example, Silver). I do note, however, that case indicated that a ‘clear nexus’ between offsite activities and issues being considered under s 237 must be shown.
Native title party contentions state that the proposed licence is in an area of particular ethnographic significance and importance to the native title party ‘as it encompasses an important ceremonial ground [which is unnamed] and mythological sites, one of which (Ulugngany) involves a water source and another a painting (Shay Gap)’ (at 18). I assume that the reference to Ulugngany is also a reference to the DIA site Ulungnganya and I will refer to that site using both references interchangeably. I also note Shay Gap is recorded as an 'other heritage site', of a painting type, with DIA. Ulugngany is in the lower south west corner of the proposed licence, and has a boundary around it of approximately 2 square kilometres. Native title party contentions state Ulugngany is a closed site, which is confirmed by the DIA register. The Shay Gap site is located on or very near to Cundaline Ridge.
It is not clear from the contentions whether Cundaline Ridge may be the unnamed ceremonial ground referred to by the native title party. I note that Cundaline Ridge is recorded by DIA as a mythological place, and from Tribunal mapping it stretches for approximately 10 kilometres in a north west/south east orientation along the western boundary of the proposed licence. I also note that Tribunal mapping shows the railway line, which is subject to condition 9 (as outlined above at [28]), runs adjacent and parallel to Cundaline Ridge.
The native title party contentions state that ‘the ceremonial and mythological grounds are so significant that the objectors believe they should not be disturbed’ (at 19). They go on to state that ‘without proper Aboriginal heritage site avoidance procedures being taken, it is likely that any activity permitted pursuant to the granting of the future act will impact negatively on the sites of particular significance within the Tenement’ (at 20).
In relation to the AHA, the native title party contends the grantee party can interfere with a site without being in breach of the AHA ‘as the concept of interference is of wider import than the prescribed activities in the AHA’ (at 21). The native title party state (at 23) the Tribunal should take into account: the nature of any site; whether the area is ‘site rich’; whether there is an area of particular significance; the nature and size of such an area; and the intentions of the grantee party with respect to the protection of sites. The native title party refers to the decision Globe Uranium Ltd (at (34)) in support of this contention, however, I could not see anything at [34] of that decision that was relevant to the argument put – rather, that paragraph related to negotiations with the native title party and radiation exposure. Later paragraphs of that decision do deal with the concept that interference under s 237(b) is wider than that related to the AHA. However, I do note, at [53] of that decision, Deputy President Sumner concluded on this point as follows: 'Despite this decision suggesting there is not complete coincidence between the coverage of the AHA and s 237(b) the Tribunal has in most cases held that that the coverage is sufficiently adequate to ensure that the interference referred to in s 237(b) is not likely to occur and the Federal Court has endorsed this position'.
The native title party contentions have annexed a map titled 'Unclaimed area northern Pilbara February 2013', but it is of small resolution and it is not clear how it relates to the contentions.

Ms Tonkin's affidavit

The native title party provided an affidavit of Ms Tonkin, who states she is an anthropologist employed by the Yamatji Marlpa Aboriginal Corporation (YMAC). She attaches a report which she has prepared specifically for this objection inquiry (Report into whether the grant of E45/3727 is likely to interfere with sites of particular significance to the Njamal People (‘the Report’)), and which contains her anthropological opinion as to whether the grant of the proposed licence is likely to interfere with sites of particular significance to the native title party. She states that the native title party preference in this matter was to also file affidavit evidence from Njamal people themselves. However, 'this was not possible for logistical reasons in the time available’. The Report is dated June 2013. Ms Tonkin also records her direct conversations with members of the native title party in the Report.
In the Report, Ms Tonkin states she holds a Bachelor of Arts (Honours) in Anthropology and that she is currently employed ‘to conduct research to progress native title claims in the east Pilbara and ensure protection of the heritage of the claimant groups’ (at 3). She states in preparing the Report she conducted a desktop review of reports and literature on the area, and interviewed Njamal claimants who are members of the Njamal community acknowledged to have rights and interests in the Shay Gap-Yarrie area. This included Njamal elder Mr Morris [Maurice] Coppin and his son Mr Graham (Marty) Coppin - I note Mr Maurice Coppin is an applicant for the Njamal native title party claim on the Tribunal's Register of Native Title Claims. Evidence provided by the native title party and recorded in Ms Tonkin's Report I regard as being equivalent to an unsworn statement of those native title party members (for example, the points below from paragraph 10 of the Report).
Ms Tonkin states that ‘previous discussions I have recorded with other Njamal claimants have addressed historical activities... [in the area] ... informing my background knowledge of the area’ (at 2). She also draws on an autobiography by Njamal law man Mr Peter Coppin. I will not restate the contents of Ms Tonkin’s Report, save to note that she states:

That the Njamal men she interviewed were clear about the area subject to E45/3727 in her discussions with them.
There is a major mythological song cycle ‘specific to the Njamal landscape and language. ... Within the Njamal language group various sub sets or family areas are acknowledged and understood to speak for significant sites and natural features’, and this song cycle is part of the Shay Gap/Cundaline Ridge/Chinaman Springs region (at 5-6).
The interviewees confirmed hunting occurred, as well as grinding stones existing ‘around there where all the people been’ (at 10b). They stated they knew the song-line at Yarrie and that the song-line goes 'through there' [the proposed licence]. They stated during the interview ‘means a lot that area. Men’s only sing this one. Big law place, Yarrie area...’ (at 10e). They also stated ‘it would affect us big time, we gotta lot of stuff there, big song-line’ (at 10f).
There is a painting near the station 'Mundarinya Range' (at 10l) that children are taken out and ‘show them around all the rock holes, ranges, where the law grounds so they know where they can walk, know all the Njamal names, know all the places, sit around the camp fire’ (at 10m) - [I take this to be a reference to Mundarinya Ridge, which is to the south east of Cundaline Ridge, as there appears to be no feature nearby called Mundarinya Range. I note Mundarinya Ridge is not on the proposed licence].
There are ten registered Aboriginal sites within the tenement (site ID’s 6969, 6994, 6285, 6997, 28972, 6291, 21381, 12138, 6970, and 6996). [I note that of the sites in the Report, five are registered with DIA (as noted at [24] above), two are recorded as 'other heritage sites' with DIA (as noted at [25] above), and three (6997, 6970 and 6996) are just outside the south east boundary of the proposed licence. In addition, the Report has not referred to 'other heritage sites' 6288, 6289, 6290 and 21396, which are on the proposed licence. I do not believe anything turns on these omissions or additions to sites on the proposed licence, as the map annexed to the Report, which was provided to the interviewees and upon which Ms Tonkin relies, shows the proposed licence area to be the same as that recorded by Tribunal mapping. In addition, there is consistency in relation to the three main sites relied upon (Cundaline Ridge, Ulugngany and Shay Gap).]
She has refrained from citing sensitive information to protect the cultural intellectual property of the Njamal community.
Cundaline Ridge is an important area.

Ms Tonkin states in the Report that 'Previous developers in the grant E45/3725 have respected the requirements of the Njamal community to protect and preserve the physical locations and the association heritage value attributed to these important sites in a way that allows needs of developers and the needs of claimants and their neighbouring claim groups to co-exist through communication and negotiation' (at 16). The Report then goes on to quote from a report prepared by a large company from a survey conducted in 2009, where 'it was agreed that Mundariny Ridge [Mundarinya Ridge] immediately to the southwest of Cundaline Ridge is a no-disturbance area...' [emphasis added].
There are some problems with this evidence. Firstly, the holder of E47/3725 is the grantee party in the present matter, and not the large company referred to - it is not clear whether there is any link between the large company and the holder of E45/3725, but none is provided in the native title party evidence or contentions. Secondly, while Ms Tonkin's Report appears to draw a link between E45/3725 and Mundarinya Ridge, that area does not fall within E45/3725. In addition, according to Tribunal mapping, Mundarinya Ridge is actually to the southeast of Cundaline Ridge, rather than to the southwest of it. As such, while I appreciate the native title party may have negotiated exclusion zones with other grantee parties on other tenements, the description of this process as presented in the Report is not precise enough to enable any firm conclusions to be drawn about such negotiations, or how they apply to the proposed licence in the current matter. In addition, if the native title party’s intention was to rely on a nexus between sites outside of the proposed licence with sites inside the proposed licence, I do not believe that nexus has been clearly or definitely made out in relation to Mundarinya Ridge.
Ms Tonkin concludes that the grant of the proposed licence ‘is likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the Njamal people, unless appropriate consultation takes place’ (at 20). She talks about establishing exclusion zones around the sites recorded on the DIA register and also around those sites recorded during numerous surveys in the area, in consultation with the Njamal people. She states that standard heritage agreements do not provide for exclusions zones. Nothing in the present matter suggests the RSHA proposed would allow for negotiation in relation to such zones. However, to say broadly that such zones should be negotiated in relation to the 'sites recorded on the DIA register' and those recorded from 'numerous surveys' is not particularly helpful in this matter.

Considering the evidence and contentions

Community or social activities (s 237(a))

Ms Tonkin's Report refers to hunting activities, grinding stones in the area, children being taken to Mundarinya Ridge, and general ceremonial activities associated with a songline. 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]).
The Hon C J Sumner, Deputy President, made it clear (in Tarlpa 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’.
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])). The evidence provided in this matter in relation to s 237(a) falls into the general and unspecified category. Apart from noting that certain ceremonial activities may be men only in nature, there is no indication, for example, of how often such activities are undertaken, by whom, and whereabouts on the proposed licence, apart from in general terms.
Based on the available evidence, the activities which the grantee party would be permitted to carry out under a grant of the proposed licence are unlikely to directly interfere with any community and social activities of the native title party as presented in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine in relation to 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 (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are 5 registered sites and 6 'other heritage sites' within the proposed licence area. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence 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 contentions and evidence directed at s 237(b) of the Act are outlined at [35] - [49] above.
The grantee party contentions directed at s 237(b) of the Act are outlined at [33] above.
The Government party contentions accept there is sufficient evidence to demonstrate that Ulugngany and Shay Gap are sites of particular significance. The Government party states that interference with those areas is not likely for the following reasons:

The grantee party is aware of any sites of particular significance within the proposed licence and of its obligations in respect of those sites;
The grantee party has agreed, ‘at least through the RSHA’, to avoid interfering with such sites (at 49b);
The proposed licence has been subject to prior exploration and possible mining activity and is largely covered by pastoral leases, so activities contemplated by the grantee party would be the same as or no more significant than such previous activities;
The AHA and its associated processes are likely to prevent interference with sites of particular significance.

The Government party point out that the native title party’s contentions specifically identify three sites, those being an important ceremonial ground, and the two mythological sites of Ulugngany and Shay Gap. As noted above, the Government party agree that Ulugngany and Shay Gap are sites of particular significance, but state that the evidence in relation to the ceremonial ground and the song-line which passes through or near it is not sufficient to establish that it is a site of particular significance.
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]). I accept the native title party’s contentions and evidence that the closed site of Ulugngany and Shay Gap are sites of particular significance, but can draw no firm conclusion about the area related to the songline or about any other area or site, due to the lack of specificity of evidence, including Cundaline Ridge.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see 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 that there will be interference with sites of particular significance.
In the present matter, I conclude there are at least two sites of particular significance to the native title party. Having considered the Tribunal notes from the preliminary and status conferences, it is clear that the negotiation of exclusion zones occupied parties during the various hearings for this matter, and there is no evidence that the RSHA proposed in the current matter provides a mechanism for negotiation of such exclusion zones. I note there is no evidence to say the grantee party will exercise anything other than its full suite of rights under the Mining Act, and that blasting in the proposed licence area is contemplated, as per condition 10 to be imposed on the grant by the Government party. I also note condition 9 as proposed, allows for no mining, machinery, buildings or minerals 60 metres either side of the railway line. However, beyond the 60 metre mark sits directly on Cundaline Ridge, and also on or very near the site of particular significance, Shay Gap.
There is no evidence from the grantee party or Government party that previous mining has interfered with these sites (with only 0.1 per cent overlap each, that is unlikely), nor that previous exploration or pastoral activity has done so either.
I am not satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed tenement, are likely to prevent interference with any area or site of ‘particular significance’ in the context of exploration activities.
Taking all of these factors into account, I find there is a real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.

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

It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas at [84]). There are some general contentions and evidence regarding cultural concerns about unauthorised access made by the native title party. It has been noted on many occasions by the Tribunal that s 237(c) relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]).
In the absence of any evidence or contentions regarding significant, direct physical disturbance of land or waters on the proposed licence, I do not find that major disturbance to land and waters is likely to occur, as envisioned by s 237(c) of the Act.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E45/3727 to XFE Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
27 August 2013