Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members/Western Australia/ASJ Resources Pty Ltd - [2009] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members/Western Australia/ASJ Resources Pty Ltd, [2009] NNTTA 77 (23 July 2009)

Application No: WO09/24

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Karajarri Traditional Lands Association (Aboriginal Corporation) – (WC00/2) (native title party)

- and -

The State of Western Australia (Government party)

- and -

ASJ Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  23 July 2009

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Banjo Wurunmurra and others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005) Hon C J Sumner (referred to below as Deputy President Sumner)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Member O’Dea
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Deputy President Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005)
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Deputy President Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (referred to below as both Member and Deputy President Sosso)
Rosas v Northern Territory (2002) 169 FLR 330
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Representatives of the Mr Robert Houston, Kimberley Land Council

native title party: Ms Ania Maszkowski, Kimberley Land Council

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

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

Representative of the
grantee party: Mr Steve Milner, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

On 3 October 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1790 (‘the proposed licence’) to ASJ Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 290.97 square kilometres located 131 kilometres south of Broome, in the Shire of Broome. It is 100 per cent overlapped by the Karajarri Traditional Lands Association (Aboriginal Corporation) prescribed body corporate (registered on 12 February 2002 following the determination of WC00/2 – Karajarri People (Area A) on 12 February 2002). No other native title groups overlap the proposed licence.
On 2 February 2009, Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 16 February 2009, Deputy President (‘DP’) Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the first preliminary conference on 3 March 2009, and at an adjourned preliminary conference on 17 March 2009, the grantee party’s representative requested further time to seek instructions from his client. At the first status conference on 29 April 2009, the grantee party requested the matter proceed to inquiry. The matter proceeded to inquiry in accordance with timeframes as set in the original directions.
The Government party lodged its contentions and evidence on 12 and 22 May 2009, and the native title party on 29 May 2009. The grantee party’s representative indicated at the listing hearing that the grantee party would rely on the evidence submitted by the Government party.
At a listing hearing on 18 June 2009, parties reported that all contentions and evidence had been lodged and requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) the Act).
On 29 June 2009, I was appointed by the President of the Tribunal as the Member for the purposes of the conduct of the inquiry.

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

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

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), DP Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)

Evidence in relation to the proposed act

Government party documentation establishes that the underlying land tenure on the proposed licence to be 100 per cent Vacant Crown Land. However, it is proposed that 55.7 per cent of this area be amalgamated into an existing adjacent pastoral lease.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence.
Department of Indigenous Affairs (DIA) documentation provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) within the proposed licence.
The documentation also indicates that, as of 8 May 2009, there are no active tenements within the proposed licence. The documentation does list thirteen ‘dead’ tenements, six of which were withdrawn prior to grant. The granted mining leases were active between 1990 and 1994. It is also worth noting that one petroleum exploration permit (37.4 per cent overlap) has been granted over the proposed licence and that there is one pending application for a petroleum exploration permit (62.6 per cent overlap) under the Petroleum and Geothermal Energy Resources Act 1967.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4).
In addition, the grant of the proposed licence will be subject to the following condition:

No interference with Geodetic Survey Station NMF93 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

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

The licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
The licencee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence provided by the native title party

The submissions of the native title party include the affidavits of Lenny Hopiga (Aff LH) and Mervyn Mulardy (Aff MM), both affirmed on 27 May 2009, made in the following terms:
‘Affidavit of Lenny Hopiga
I, Lenny Hopiga, of Bidyadanga Community, south of Broome, in the State of Western Australia, affirm:
1.     My name is Lenny Hopiga. I am a Karajarri man and my Aboriginal name is Pirinji. I have karimpa skin. I was born in the Native Hospital in Broome on the 21 September 1956. My rayi spirit comes from Mabanngurru – a rock at the entrance of Whistle Creek, which in the heart of coastal Karajarri coastal country. My jampartu (grandfather), my father, my grandmothers and my mother passed down their knowledge of Karajarri law and culture to me.
2.     I am one of the senior Karajarri law men and my mother was named applicant for the Karajarri Native Title Determination. Under our Law I have authority to speak about Karajarri land matters.
3.     I know the area where the ASJ Resources exploration Company have applied for Exploration Licences Number E04/1790, ‘the Exploration Licence Area’, very well because I have been shown maps of the application area and I have been to the area many times and it is located near the Kagara mining/ exploration licences. The map I was shown is attached to this affidavit and marked ‘A’.
4.     The area is on the UCL land, part of our native title lands, to the east and south of Nita Downs PL. It is part of pirra – the bush side of our country.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

5.     The Exploration Licence area falls completely within the Karajarri native title determined lands, the country that belongs to all the Karajarri people, that land that was put there from pukarrikarra (the dreamtime)
6.     This is an area where we take our children out bush to teach them about bush life and how to get bush tucker.
7.     It is an area beyond the pastoral lease where I regularly go hunting for kangaroo and goanna and other kuwi (meat)
8.     We regularly undertake seasonal burning in this aera for hunting purposes and to look after the country.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

9. My country and my Law comes from Pukarrikarri and passed down to me. I know my Law and it is my responsibility to look after the country. I know this area very well.
10. It is in an area in close proximity to some very significant cultural sites. These are special ground to us and very sacred, with many areas in this region restricted to women and uninitiated men.
11. It is an area where my old people used to have ceremonies and I have been there with my father and my uncles, who told me where we can go and where not to go.
12. Many of these places are not marked or easy to find, and only some of them are listed on the Aboriginal Sites Register. Under our Law it is very important that mining companies do not damage these places or enter them without permission. We worry for these places and want to make sure that they do not get destroyed or disturbed.
13. Under our Law it is very dangerous for strangers to go into our country, and to go near cultural sites without our permission and without guides. It is dangerous for them and it is dangerous for us.

MAJOR DISTURBANCE TO LAND AND WATER

14. 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 the exploration licence.
15. If walangu (stranger) damage a special site it will make us sad and worried, it is as if someone has died. It is the same thing for country.
16. We have won our Native Title and we have full rights over this area, which is UCL. We got Native Title so that we could protect our country and so that other people who want to come on to our country do it in the right way. They must ask first and we want them to sign an Agreement so that we can protect the places and so that they respect our native Title Rights.’
‘Affidavit of Mervyn Mulardy
I, Mervyn Mulardy, of Bidyadanga Community, south of Broome, in the State of Western Australia, affirm:
1.     My name is Mervyn Mulardy. I am a Karajarri man and my Aboriginal name is Mulat. I have panaka skin. I was born in Broome on the 22 January 1972. My yatangkal comes from Narrkunja – in the north east of Karajarri country, on the pirra dessert side towards Dampier Downs pastoral lease. My jampartu (grandfather), my father, my grandmothers and my mother all passed down their knowledge of Karajarri law and culture to me.
2.     I live in Wanamalnyanu community which is to horth east of the exploration licence area.
3.     I am one of the Karajarri Law men, and my mother, my father and my grandmother were named applicants for the Karajarri Native Title Determination. Under our Law I have authority to speak about Karajarri land matters with my elders. Currently I am the chairman of the Karajarri Traditional Lands Association, the native title PBC organization for the Karajarri traditional owners.
4.     I know the area where the ASJ Resources exploration Company have applied for Exploration Licence Number E04/1790, ‘The Exploration Licence Area’, very well because I have been shown maps of the application area and I have been to the area many times. It is located near the Kagara mining/ exploration licences. The map I was shown is attached to this affidavit and marked ‘A’.
5.     The area is on the UCL land to the east and south of Nita Downs PL. It is part of pirra – the bush side of our country.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

6.     The Exploration Licence area is in our Karajarri native title determined lands, the country that belongs to all the Karajarri people, that land that was put there from pukarrikarra (the dreamtime)
7.     I go hunting in this area all the time from my community with my jalangarii (goanna hunting) dogs and I also go for kangaroo and bush turkey.
8.     I do a lot of burning in this area when I go hunting and my father taught me how to do this properly.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
9.     My country and my Law comes from Pukarrikarri and passed down to me. I know my Law and it is my responsibility to look after the country. I know this area very well.
10. This licence in very close to some very significant cultural sites. These are very sacred to us.
11. My father taught me properly about this country. He taught me where I can go and where others can’t go and he told me why. This area is near Manala and is my grandfather’s country and he used to roam around here. They used to run away from the stations and mission sometimes, or when they got sick, and go and live in the bush. This is the area they used to come to.
12. Under our Law it is very dangerous for strangers to go into our country, and to go near these cultural sites without our permission. It is dangerous for them and it is dangerous for us. You cannot find these places without Karajarri people because they are not marked on maps or in the Aboriginal site register.
13. I worry for my grandfather’s country and it is my responsibility to look after this place. I want to make sure that the country is looked after and that the sites do not get destroyed or disturbed.
MAJOR DISTURBANCE TO LAND AND WATER
14. I am aware of the activities which the exploration company could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.
15. If walangu (strangers) damage a special site it will make us sad and worried, it is as if someone has died. It is the country has died.
16. We have won our Native Title and we have full rights over this area, which is UCL. We got Native Title so that we could protect our country and so that other people who want to come on to our country do it in the right way. They must ask first and we want them to sign an Agreement so that we can protect the places and so that they respect our Native Title Rights.’

The evidence of Mr Hopiga and Mr Mulardy is uncontested and I accept it. Mr Hopiga and Mr Mulardy depose to be Karajarri law men and the record shows that a Mr Mervyn Mulardy Snr and a Ms Edna Hopiga were named applicants on the Karajarri People’s native title determination application. I infer that the deponents may be related to those Applicants. On the basis of the statements contained in the affidavits, I am satisfied that both deponents have the requisite authority to speak on behalf of the native title party and properly reflect the traditions and knowledge of the native title party concerning the proposed licence.

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 pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 ([23])) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 ([26])). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
I can infer from the fact that both mining leases and petroleum exploration permits have been granted over at least part of the proposed licence area that limited prior activity has already occurred. However, the evidence does not suggest that this is an area of significant prior mining or exploration activity which will have already significantly interfered with the native title party’s community or social activities. Furthermore, the area is vacant crown land suggesting little impediment to any community or social activities of the native title party. Although there is a proposal for a portion of the tenure underlying the proposed licence area to be converted to pastoral lease, no evidence has been provided as to the certainty and timing of this proposal. If the amalgamation of tenure were to occur, native title rights and interests would co-exist with the rights of the pastoralist, and social and community activities may well be affected to the extent of any inconsistency. However, the principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.
The affidavits of Mr Hopiga and Mr Mulardy address their concerns surrounding the disruption of social and community activities on their country. It is apparent from Mr Hopiga’s reference to the location of mining and exploration tenements held by ‘Kagara’ (Aff LH para 3) that he is familiar with the area. A search of the Department of Mines and Petroleum’s Tengraph mapping database indicates there is one exploration licence and two mining leases held by Kagara Ltd immediately south of the proposed licence. The Tribunal understands that there is no connection between Kagara Ltd and the grantee party so it is therefore unnecessary for me to consider the history of activities on those tenements.
In his affidavit, Mr Hopiga deposes that the proposed licence is ‘land that was put there from pukarrikarra (the dreamtime)’ (Aff LH para 4) and is ‘an area where we take our children out bush to teach them about bush life and how to get bush tucker’ (Aff LH para 6). Mr Hopiga and Mr Mulardy both depose to use the proposed licence as an area to go hunting (Aff LH & Aff MM para 7). In particular, Mr Mulardy states that he goes ‘hunting in this area all the time from my community with my jalangarti (goanna hunting) dogs and I also go for kangaroo and bush turkey.’ (Aff MM para 7) The deponents further depose that the proposed licence is an area used to undertake seasonal burning (Aff LH and Aff MM para 8).
I must now assess whether the grant of the proposed licence is likely to interfere with the carrying on of the social and community activities evidenced by the native title party. The test to be applied here is the ‘real risk’ test.
The evidence of Mr Hopiga and Mr Mulardy indicates that there is contemporary use by at least the deponents on the proposed licence. Mr Hopiga states that he ‘regularly’ (Aff LH para 7) goes hunting on the proposed licence and Mr Mulardy deposes that he goes hunting in the area ‘all the time’ (Aff MM para 7). The deponents also appear to have significant historical association with the country and, on their uncontested evidence, are traditional owners of that country. The Tribunal acknowledges that the native title party has been determined and that such party has exclusive possession over the area of the proposed licence and, as such, can exercise native title rights to the fullest extent. However, the evidence given by the deponents in relation to hunting, burning and the gathering of bush tucker lacks specificity in relation to the number of members of the native title party, aside from them, who use the area for community and social activities. Nor is the evidence specific as to the precise locations within the proposed licence that are regularly used for such activities.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place, as significant ground disturbing exploration will only occur at any one time over a small area. Government party documentation reveals that the size of the proposed licence is 290.97 square kilometres. The area of the native title party is approximately 24691.141 square kilometres, much larger than the area of the proposed licence. Thus it is unlikely that exploration on the area of the proposed licence will impact on any community and social activities of the native title party, as contemplated in s 237(a) of the Act, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (now DP Sosso) (at [43]-[44])).
There are no communities within or near the tenement area. The Bidyandanga Community, where the two deponents reside, is some 35 kilometres to the northwest of the proposed licence.
The native title party contends that the grant of the proposed licence is likely to cause spiritual and emotional distress (NTP contentions 39(b)), and thereby interfere directly with the carrying on of social and community activities, The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities (Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC at [12]).
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions 14), I adopt the findings of DP Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows no sites within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea, (‘Butcher Cherel’) (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The affidavit evidence of the native title party attests to the fact that the following areas are sites of significance within or in the vicinity of the tenement:
·Mabanngurru – ‘My rayi spirit comes from Mabanngurru – a rock at the entrance of Whistle Creek, which is the heart of coastal Karajarri coastal country’ (Aff LH para 1)
·‘very significant cultural sites’ that are ‘special ground to us and very sacred, with many areas in this region restricted to women and uninitiated men’ (Aff LH para 10)
·‘area where... old people used to have ceremonies’ (Aff LH para 11)
·Manala is Mr Mulardy’s grandfather’s country who ‘used to run away from the stations and mission sometimes, or when they got sick, and go and live in the bush. This is the area they used to come to’ (Aff MM para 11)
The evidence provided by the native title party in relation to sites is uncontested and I am satisfied that there are likely to be sites of particular significance to the native title party in accordance with their traditional laws and customs. However, on the evidence, I can only find with any degree of certainty that the site known as Mubanngurru is particularly significant.
In matters of this nature, there must be evidence of sufficient specificity to form a conclusion that any areas or sites of particular significance to the native title party are located within the tenement area. In relation to Mabanngurru, Tribunal mapping indicates that Whistle Creek falls approximately 45 kilometres from the western border of the tenement. As such, I find that this site falls well beyond the boundaries of the proposed licence and so the scope of this determination.
I observe that there are a number of sites on the Register kept under the AHA approximately 5-10 kilometres north of the north-western corner of the proposed licence. However, as observed earlier, the affidavit evidence provided is not specific as to the location of any sites, other than Mabanngurru, and I am unable to make a finding as to whether the sites references by the deponents are the same as those listed on the Register. In any event it would seem that the registered sites are located sufficiently beyond the proposed licence boundaries to ensure that interference with them is unlikely.
I contrast the evidence adduced in this matter with that which underlay the findings in other matters in the Kimberley region (Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004) Member O’Dea and Banjo Wurunmurra and others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005) DP Sumner). In those matters, there was evidence of a number of specifically located sites and evidence of the basis of the assertion of their particular significance to the native title party.
In relation to the evidence of Mr Hopiga and Mr Mulardy that sites can be ‘very dangerous for strangers’ (Aff MM para 12), I find that this information too lacks specificity. Although Mr Hopiga deposes that ‘under our Law it is very dangerous for strangers to go into our country, and to go near cultural sites without our permission and without guides. It is dangerous for them and it is dangerous for us.’ the location of the sites referred to is not apparent. Accordingly, I am unable to make a finding that any site within the proposed licence area is ‘dangerous’.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel at [81]-[91], Member O’Dea canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party in particular matters, which I adopt for the purpose of this determination. In that matter, the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party, including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
However, given that it is not apparent from the evidence where the sites mentioned by the native title party are located, the Tribunal is unable to make a finding that they are likely to be interfered with. The Tribunal notes that the grantee party has not provided a work plan and Tribunal conference records indicate that it may be unwilling to enter into a heritage agreement with the native title party. Had my findings in relation to the specificity of sites been different, and had I found that the proposed licence was ‘site rich’, I would have needed to turn my attention to the grantee party’s attitude in relation to heritage protection.
Taking all these factors into account, I am satisfied that the presumption of regularity is applicable in this matter and that interference with sites of particular significance by the exploration activity is unlikely.

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

Lastly, 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [74]-[79] and the cases cited therein).
The native title party contends that major disturbance would be likely to occur as a result of the activities permitted by the grant of exploration licences, and lists those potentially damaging activities as being reverse circulation drilling in areas of hypersaline ground water, diamond core drilling and the creation of drill holes, excavation of up to 1000 tonnes of material and creation of infrastructure associated with exploration activities. However, there is no evidence there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). Further, such activities properly regulated, are not likely to cause major disturbance from the perspective of the Australian community, including the Aboriginal community.
The more significant question in relation to this limb of s 237 is the issue raised by Mr Hopiga and Mr Mulardy to the effect that, in accordance with their law, it is necessary for the grantee party to consult with them before entering that area as if ‘walangu (strangers) damage a special site it will make us sad and worried, it is as if someone has died. It is the country has died’ (Aff MM para 15). The native title party, in its contentions, asserts that under the law of the native title party, ‘anyone who is not from the country included in the tenement area must ask permission before coming onto the country’ (NTP Contention 39(a)). Such consultation is said to be required from the perspective of the protection of the sites of significance on country.
The focus of the enquiry in s 237(c) is in relation to ‘major disturbance’ (see Dann v Western Australia (1997) 74 FCR 391 at 395). In evaluating major disturbance the Tribunal has accepted that it may give weight to the cultural concerns to a group of native title holders. However, the starting point and precondition of the enquiry is evidence of the physical disturbance the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural considerations alone cannot form the basis of a finding of major disturbance. There must be some physical disturbance as a pre condition (see Wilcox J in Dann at 395). In this matter the physical disturbance to the area will be confined to the carrying out of the exploration activities under the terms of the licence granted. It has already been found that, in the circumstances, it is unlikely that those activities will cause major disturbance. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to any offence that the grantee party’s entering any land without first speaking to the native title party may cause, is insufficient to establish that such major disturbance is likely to occur.

Determination

The determination of the Tribunal is that the grant of exploration licence E04/1790 to ASJ Resources Pty Ltd is an act attracting the expedited procedure.

[signed]

Neville MacPherson
Member
23 July 2009