Karajarri v ASJ Resources. - [2012] NNTTA 18

NATIONAL NATIVE TITLE TRIBUNAL

Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd, [2012] NNTTA 18 (24 February 2012)

Application No: WO10/1066

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

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

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The State of Western Australia (Government party)

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ASJ Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms Helen Shurven
Place:  Perth
Date:  24 February 2012

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – request to ‘dismiss’ objection application – res judicata – estoppel - 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 3, 29, 31, 32(4) 109, 146, 147, 148, 149, 151, 169, 237
Mining Act 1978 (WA) s 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 62

Cases: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Crowe and Others v State of Western Australia and Another (2008) 218 FLR 429; [2008] NNTTA 71
Karajarri Traditional Lands Association [Aboriginal Corporation] on behalf of its members / Western Australia / AGS Resources Pty Ltd [2009] NNTTA 77
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Matusko & Australian Postal Corporation, Re (1995) 21 AAR 9; [1995] AATA 14
Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125
Nangkiriny v WA (2002) 117 FCR 6; [2002] FCA 660
Page v Northern Territory of Australia and Another (2003) 174 FLR 371; [2003] NNTTA 9
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385; (2008) 104 ALD 595, [2008] AATA 558
Ronald Crowe & Ors (Gnulli)/Western Australia/Golden Century Mining Limited [2011] NNTTA 89
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Western Desert Lands Aboriginal Corporation v State of Western Australia and Others (2008) 218 FLR 362; [2008] NNTTA 22

Representatives of the Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation

native title party: Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

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

Government party: Ms Leanne Davis, Department of Mines and Petroleum

Representative of the

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

REASONS FOR DETERMINATION

On 14 May 2010 the Government party gave notice under s 29 (‘s 29 notification’) of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1999 (‘the proposed licence’) to ASJ Resources Pty Ltd (‘the grantee party’) and included in its notice a statement (‘expedited procedure statement’) that it considered the grants 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). That is a prescribed body corporate registered on 12 February 2002, following the determination of exclusive native title over part of the Karajarri People’s native title claim application WC00/2 (WAD6100/98) (Nangkiriny v WA (2002) 117 FCR 6; [2002] FCA 660 (‘Nangkiriny’)) (‘determination area A’). Accordingly, no other native title applications overlap the proposed licence.
On 11 August 2010, the Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members (‘the native title party’) made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’) in respect of the proposed licence.
On 23 August 2010, Hon C J Sumner was appointed as the Member for the purpose of conducting the inquiry into the application. In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. The directions allow a period from the s 29 closing date for the lodgement of objections (14 August 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
On 7 September 2010, a preliminary conference was held at which the grantee party advised receipt of the native title party’s preferred heritage protection agreement and requested time to consider the agreement and respond to the native title party. The matter was adjourned to a conference held on 8 December 2010, at which the grantee party requested the matter proceed to inquiry.
The Government party lodged its contentions and evidence on 8 and 22 December 2010 and further Department of Mines and Petroleum (‘DMP’) documentation on 31 May 2011. Following a number of amendments to directions which were requested by the native title party and not contested by the other parties, the grantee party and the native title party lodged their contentions and evidence on 2 June 2011 and 16 September 2011 respectively.
On 6 October 2011, a Listing Hearing was held at which the Government party requested two weeks leave to consider making submissions regarding the conduct of the inquiry and the grantee party requested leave to reply to the native title party’s contentions and evidence. On 11 October 2011 the grantee party lodged a supplementary statement of contentions. On 20 October 2011, a listing hearing was held at which the Government party requested further time to consider making submissions regarding the conduct of the inquiry. (Further material was lodged by the Government party which is dealt with in [9]-[53] of this determination).
On 31 October 2011, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry.

Government Party’s request that the objection application be dismissed

On 23 November 2011, the Government party sought leave to apply for a decision that the objection application be dismissed ‘on the basis of the effect of the decision of the Tribunal in Karajarri Traditional Lands Association [Aboriginal Corporation] on behalf of its members / Western Australia / AGS Resources Pty Ltd [2009] NNTTA 77 on the determination of this matter’. The Government party advised that, depending on the outcome of that decision, it may seek leave to apply for the objection application to be determined following a hearing, rather than ‘on the papers’ pursuant to s 151 of the Act.
On 29 November 2011, after considering the Government party’s request, I made directions accordingly. I directed the Government party to lodge, on or before 7 December 2011, any contentions and/or evidence in support of its submission that the objection application be dismissed, and the native title party and grantee party to lodge, on or before 16 December 2011, any contentions and/or evidence regarding the Government party’s submission. Should the Tribunal not consider it appropriate to dismiss the objection application after considering all submissions, I directed that a hearing be held on 21 December 2011 to seek further submissions from parties and to make further directions on the conduct of an inquiry into the objection application.

Consideration of the Government party’s request that the objection application be dismissed

The questions the Government party’s request raised were:
1.Whether the Act precludes a National Native Title Tribunal Member (‘Member’) from deciding a matter, independently of any previous determinations that have been made over the same parcel of land? and
2.Can an objection be ‘dismissed’ by a Member, based on a previous determination over the same parcel of land?

I will deal with each of these questions in turn – question 1 in [12]-[33] below, and question 2 in [34]-[37] below.

Deciding a matter over the same parcel of land: res judicata and issue estoppel

I believe the simple answer to question 1 in [11] above is no, there is nothing in the Act which binds me to follow a previous determination of a Member over the same parcel of land. In addition, arguably an administrative decision maker is not bound by earlier decisions of the same Tribunal: Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125 at [20].
In relation to the current parcel of land in question, Member MacPherson decided that the expedited procedure was attracted in Karajarri Traditional Lands Association [Aboriginal Corporation] on behalf of its members / Western Australia / ASJ Resources Pty Ltd [2009] NNTTA 77 (‘ASJ Resources’). The tenement was at that time identified as E04/1790. The Government party has contended that I ought now to decide the current matter (tenement E04/1999) similarly, given the parcel of land is the same.
I believe my role is to look, on a case by case basis, to any previous determinations that might need to be considered in these proceedings. I can pay regard to previous decisions of the Tribunal and give weight to those decisions. However, I must also consider the entirety of the evidence before me, and I note that the evidence provided in the present matter is different from that provided to Member MacPherson in ASJ Resources. For example, in ASJ Resources, the grantee party indicated it would rely on the evidence submitted by the Government party, and in this current matter, the grantee party has provided a substantial amount of information to indicate its intentions towards activities on that parcel of land. In addition, Member MacPherson had before him an affidavit of Lenny Hopiga and an affidavit of Mervyn Mulardy, whereas in the present matter I have before me an affidavit from Lenny Hopiga only, which is not identical to the one he provided to Member MacPherson. The affidavit contains more information than provided in ASJ Resources, however, it is not inconsistent with information provided in ASJ Resources.
In Ronald Crowe & Ors (Gnulli)/Western Australia/Golden Century Mining Limited [2011] NNTTA 89 (‘Crowe’), the native title party drew the parties attention to affidavit evidence in an inquiry on the same tenement in the earlier determination on WO07/806 in 2008 (Crowe and Others v State of Western Australia and Another (2008) 218 FLR 429; [2008] NNTTA 71). The native title party filed the same affidavit evidence in WO10/628. The solicitor for the Yamatji Land and Sea Council deposed that the native title party asserted the evidence was still applicable and that their contentions had not changed in the intervening period [11] – [12]. The Tribunal held at [13]:
‘...based on the evidence of the native title party and Tribunal Overlap Analysis:
·that the proposed licence in question in this matter covers the same area as that in Crowe;
·that the evidence of the native title party is substantially the same; and
·that the factors to be considered in this matter are substantially the same as those examined in Crowe.’
In contrast, the evidence in ASJ Resources compared with the current matter is not the same, with a new affidavit filed by the native title party and the addition of the grantee party contentions in the current matter. The grantee’s intentions are admissible and logically relevant and cannot be ‘unilaterally discarded in advance’, see Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 at [29]-[30], (‘Silver’). The government party contends, in their submissions of 7 December 2011, additional information filed by the native title party in the current matter is nothing different from ASJ Resources to justify a departure from that determination (at 5). However, this assertion is inconsistent with the government party’s acknowledgment of new affidavit evidence on sites within and outside the proposed grant boundaries (at 9).
In the current matter, the Government party has cited Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 (‘Blair’) (at 531-533) as authority to support their submission that where evidence and contentions filed by the native title party do not provide anything different to that relied upon by it in a previous decision, over the same parcel of land, ‘the Tribunal is bound by, and should follow, its previous decision’ (at 12). The Government party states that Blair provides support that the current matter should be ‘dismissed’, because the determination in ASJ Resources ‘disposed of the dispute between the parties in that matter for all time and should not be allowed to be re-litigated in the present objection application, i.e., based on the applicability of the doctrine of res judicata to the circumstances of the present objection application’ (at 13).
In the alternative, the Government party submits that the determination of Member MacPherson involved ‘the final determination of matters providing the legal foundation of the determination of that objection application, … i.e., the NTP is estopped from raising those issues in this present objection application’ (at 14).
In the further alternative, the Government party states that the Tribunal should exercise its discretion pursuant to s 146(b) of the Act ‘to adopt the determination of the Tribunal in ASJ Resources’, for the purposes of determining this current matter (at 15).
I will deal with each of these alternative arguments in turn.
In my view, it is not prudent to state that the determination of a Member of this Tribunal will forever set future decisions of Tribunal Members, even where contentions and evidence may be similar. I note that following Member MacPherson’s decision, the applicant failed to pay the GST component of the first year of rental amount due for tenement EO4/1790, and accordingly it was refused. It is for that reason that this matter has come before the Tribunal again, with the same parties, and over the same parcel of land, although not with the same evidence as presented to Member MacPherson, and some two and a half years later.
There are conflicting lines of authority on whether res judicata and issue estoppel is applicable to administrative decision making by tribunals. The contention that they are applicable to the subsequent determination in this matter is not clearly made out in reliance on Blair. In addition, the question of the applicability of the doctrines to tribunals of limited jurisdiction was not considered in the Government party’s contentions.
The res judicata doctrine has arisen as a public policy consideration, to bring an end to litigation, rather than subject an individual and the courts to subsequent proceedings on the same issue, either by a successful litigant bringing a fresh suit on the same cause of action, or by an unsuccessful party challenging the decision in the same courts. It is a legal doctrine of questionable application to administrative tribunals acting under statutory requirements to determine matters properly lodged with that relevant tribunal. There are also lines of authority which suggest it is doubtful whether the doctrine of issue estoppel is applicable (for example, see Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385; (2008) 104 ALD 595, [2008] AATA 558 at [23]-[82], and Matusko & Australian Postal Corporation, Re (1995) 21 AAR 9; [1995] AATA 14 (‘Matsuko’).
In Blair, Dixon J. stated that ‘[a] judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion...’. He went on to say ‘[t]he distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgement, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order’.
However, reading on, Dixon J. states ‘[f]indings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend, do not estop the parties if the same matters of law arise in subsequent litigation’.
The issue of following the Tribunal’s own determinations in relation to reconsideration of the law was canvassed in Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, [2003] NNTTA 125. It was considered (at [20]) that ‘in the absence of any clear statement of the law from the Federal Court ... the Tribunal can reconsider the law as set out in its earlier decisions’.
There is certainly no clear position in relation to the application of res judicata and issue estoppel in relation to decisions of fact or law in Tribunal proceedings.
Looking to statutory construction, s 32(4) of the Act requires the Tribunal to determine an objection to the expedited procedure application where one is accepted following the issue of a s 29 notice. There is no statutory exception relating to future acts subject to earlier determined s 237 inquiries over the same parcel of land. A decision of the Tribunal following a s 237 inquiry is a necessary function of the right to negotiate process, which set a standard for future act dealings (s 3 of the Act).
I could adopt aspects of Member MacPherson’s decision in the current matter, and such an approach was canvassed in Crowe, where the Member accepted and adopted, in part, comments and findings made by the Tribunal in a previous determination over the same parcel of land. This approach was also addressed in Page v Northern Territory of Australia and Another (2003) 174 FLR 371; [2003] NNTTA 9 (‘Michael Page’), where Member Sosso, at [17], stated that:
‘In the past the Tribunal has, usually with the consent of the parties, exercised its discretion pursuant to section 146, by receiving into evidence transcripts of evidence given in other expedited procedure objection inquiries that have relevance to the particular inquiry – see e.g. the approach of Hon C J Sumner in Re Smith [1995] NNTTA 31; (1995) 128 FLR 300 at 303. In that determination the Tribunal, in the exercise of its discretion, received into evidence submissions made in another expedited procedure objection inquiry. In a later inquiry, Hon C J Sumner also accepted into evidence, findings of fact made by another Tribunal Member in an expedited procedure objection inquiry held almost a year previously – see Terry Cornwall & Ors/Western Australia/Balde Exploration Consultants & Anor WO96/96 and 96/101, unreported, 12 February 1997.’

I do not see the value of exercising such discretion in the present matter, as the evidence provided by both the grantee party and the native title party in the present matter appears to be more fulsome than that presented in ASJ Resources. I note also the power under s 109 of the Act, to be fair, just, economical, informal and prompt, and that I am not bound by technicalities, legal forms or laws of evidence.
The government party’s contention of issue estoppel, without establishing how the conflicting authorities support application of the principle to subsequent decisions of the Tribunal, is not persuasive. The res judicata contention, even if it were applicable, is not supported in a s 237 inquiry when there is different evidence and new contentions and the Tribunal is required to make a determination regarding a future act.
It would seem sensible that, rather than determine whether res judicata or issue estoppel apply in this matter, to take the approach in Matusko, where Members of the Administrative Appeals Tribunal (‘AAT’) reviewed authorities in relation to issue estoppel and res judicata, and concluded that while litigation of issues already decided was to be discouraged, it was open to the AAT to use flexible procedures where there was reason to do so. The AAT helpfully outlined five situations in which it might be considered appropriate to take a flexible approach:
1.Where there is a different decision;
2.Where there is a clear legislative intent;
3.Where the reconsideration decision is not final;
4.Where there has been a change in circumstances or fresh evidence; and
5.Where justice to the parties require a departure from the general rule.
In the present matter, there had been fresh evidence provided to the Tribunal, and on that basis I considered it appropriate to determine the matter, rather than adopting the determination of Member MacPherson under s 146(b) of the Act, as suggested by the Government party.

‘Dismissing’ an objection

I now deal with the second question in [11] above, which related to the Government party’s suggestion that I ‘dismiss’ the present objection application. In their submissions, the Government party has not indicated under which section of the Act the present objection application should be ‘dismissed’, save to suggest that the Tribunal should exercise its discretion pursuant s 146(b) of the Act to adopt Member MacPherson’s determination, which has been dealt with above. In relation to the Government party’s broader suggestion that I ‘dismiss’ the matter, I can only do so under ss 147, 148 or 149 of the Act. I will deal with each of these sections in turn.
In my view, neither ss 148 or 149 of the Act apply in this matter, as:
a)the Tribunal is entitled to deal with the application;
b)the applicant has been reasonably timely in relation to directions; and
c)the applicant has not requested that the application be dismissed.
In relation to s 147, the approach advocated by the Government party in regard to a second objection lodged by a native title party in relation to the same future act was raised in Michael Page. In that matter, the proposed dismissal was under s 147 as the proceeding in an identical situation was contended to be frivolous or vexatious. Member Sosso, at [15], stated that:
‘The mere fact, that within a short period of time, a further expedited procedure objection application is lodged by the same native title party, over the same land and waters, involving the same grantee party, provides no prima facie basis for dismissal pursuant to section 147. Such an expedited procedure objection application is not necessarily frivolous or vexatious, and the lodging of such a further objection application by a native title party is, on its face, unexceptional.’

In the present matter, there has been some passage of time between the two objection matters and fresh evidence has been provided, and I do not believe the objection falls under s 147.

For the reasons outlined in [34]-[36] above , I will not ‘dismiss’ the current matter as suggested by the Government party.

Government party’s request for a hearing ‘in person’

The Government party requested that, should the matter not be dismissed, they may seek leave to apply for an order that the objection be determined after a hearing ‘in person’ before the Tribunal, rather than the objection be determined ‘on the papers’, pursuant to s 151 of the Act. According to the directions I made as outlined in [10] of this determination, a directions hearing was held on 21 December 2011, pursuant to parties’ submissions and to make directions on the conduct of an inquiry into the objection application. The solicitor for the Government party made oral submissions that the Government party considers the Tribunal’s proportion of expedited procedures that have not been granted was increasing, and the State felt that the evidence of native title parties should be explored and tested in view of that apparent increase. At this hearing, it appeared that the Government party had a broad policy objection to matters where the Tribunal had decided the expedited procedure did not apply, and would seek to use this matter to test the evidence of the native title party. It is always open for the Government party to request to provide supplementary submissions or evidence to test or challenge any led by the native title party. In addition, if the State is concerned regarding Tribunal decisions, it is open to the State to appeal a decision, as per s 169 of the Act.
The Government party indicated that the affidavit of Mr Hopiga, in it’s view, could be tested to assist the Tribunal determine the extent to which that evidence could inform the determination. I noted at the hearing that Mr Hopiga had not claimed that all of the areas named in his affidavit were actually on the proposed licence, and in fact had provided a balanced account of areas around the proposed licence area, and also referred to some special places within the tenement in very general terms. I also noted that the grantee party itself had recognised, in their contentions, that Mr Hopiga had not claimed all of the sites in the affidavit were actually on the proposed licence, and the Tribunal noted it had found the grantee party’s submissions and supplementary submissions of great assistance to the Tribunal in coming to a determination of whether the expedited procedure applied or not. It was clear at that stage of the inquiry that the native title party had provided only broad evidence in relation to sites and community activities that were on the proposed licence.
The Government party’s request for an in person or on country hearing provided the native title party with further opportunity to elaborate on their affidavit evidence. The native title party did not provide any further submissions.
At the hearing, the grantee party stated that they did not wish to interfere with any site of significance to the native title holders, and that they would support the Tribunal in whatever decision was made regarding the hearing of evidence. The usual representative for the native title party was not available to attend the hearing but a colleague attended on his behalf, and advised in broad terms that Mr Hopiga was available to participate in having his evidence tested and if that was the decision, he would prefer to do so on country. The native title party representative also indicated that more specific oral submissions on the issue of conducting a hearing ‘in person’ would need to be made by the usual representative for this group, who would not be available for a directions hearing until 7 February 2012.
Parties’ attention was drawn to the Tribunal’s remit to operate in an economical, informal and prompt way (as per s 109), which is further reinforced by s 151(2), where the Tribunal Member can decide to determine the matter on the papers, with or without the consent of the parties. Nevertheless, ensuring that all parties have the opportunity to respond to the submissions or contentions of another party is an important part of the inquiry process and accordingly, as the usual native title party representative was not available, the matter was held over for further submissions from that representative and other parties on 7 February 2012.
On 11 January 2012, the Tribunal wrote to all parties in the following terms:
Hearing scheduled for 7 February 2012 at 2.30pm
The Member will determine the matter of whether or not to hold a further hearing in person, and whether that be on country or in some other form, from the available information, including submissions made by the parties prior to or at the hearing on 7 February 2012. A decision regarding a further hearing will be made either on 7 February, or the Member may hand down a reserved decision shortly thereafter.
In considering parties’ contentions, and generally in the course of an inquiry, s 146(b) of the NTA gives the Tribunal discretion to adopt any report of any person or body that may be relevant to the inquiry. In its contentions, the Government party contends that their conditions and the regulatory regime will be sufficient to protect sites, are central to the issues to be determined in this matter.
To that end, the Member notes a recent report by the Western Australian Auditor General ( which suggests that ‘DMP’s [Department of Mines and Petroleum] inspection regime does not deliver adequate coverage or assurance that mines meet their conditions’ (at page 8) and that ‘DIA [Department of Indigenous Affairs] has not actively monitored if operations are meeting the conditions place on them under the Aboriginal Heritage Act 1972 (AH Act). This means that registered Aboriginal heritage sites could have been lost or destroyed without the State knowing or taking action’ (at page 22). The Member also notes the Reports’ conclusion and key findings as they relate to DIA and DMP (at p7-9); the response by DMP and DIA to the Report (at p10-11) which acknowledges shortcomings and outlines processes to be put in place to improve the regulatory regime; and the conclusions drawn in the Report in relation to DIA (at p22-23) and DMP (at p26-28).
All parties are at liberty to provide written submissions in relation to the relevance of this report, and the parts noted above in particular, at or prior to the hearing scheduled for 7 February 2011, which the Member will then consider in relation to adopting those particular parts of the report in the determination of this matter.
On 24 January 2012, the Government party wrote to the Tribunal, copying in all parties, to propose that the matter be determined ‘on the papers’ after all, without the need for an oral hearing, and requested until 28 February 2012 to provide submissions in relation to the directions outlined at [43] above.
In consideration that the native title party and grantee party had not yet had the opportunity to provide submissions in relation to whether the matter should be heard ‘on the papers’ or otherwise, the 7 February 2012 directions hearing was vacated, and the following directions were issued on 25 January 2012:
1)By 7 February 2012, the native title party and the grantee party may lodge written submissions in relation to whether or not the determination should be ‘on the papers’ pursuant to s 151(2)(b) of the Act.
2)By 17 February 2012, the Government party may lodge a reply to any of the grantee and native title parties’ submissions.
3)By 17 February 2012, any party may lodge written submissions in relation to the Tribunal adopting parts of the recent report by the Western Australian Auditor General ( in this matter, notably:
a)    that ‘DMP’s inspection regime does not deliver adequate coverage or assurance that mines meet their conditions’ (at page 8) and that ‘DIA has not actively monitored if operators are meeting the conditions placed on them under the Aboriginal Heritage Act 1972 (AH Act). This means that registered Aboriginal heritage sites could have been lost or destroyed without the State knowing or taking action’ (at page 22);
b)    the Reports’ conclusion and key findings as they relate to DIA and DMP (at p7-9);
c)    the response by DMP and DIA to the Report (at p10-11) which acknowledges shortcomings and outlines processes to be put in place to improve the regulatory regime; and
d)   the conclusions drawn in the Report in relation to DIA (at p22-23) and DMP (at p26-28).
No submissions were received by 7 February 2012 from either the native title party, or the grantee party. Accordingly, the matter will be heard ‘on the papers’.
On 17 February 2012, the Government party lodged a reply to the contentions of the native title party. This reply largely re-stated material that was already before the Tribunal, and re-iterated the grantee party’s intentions, including that the grantee party has indicated it will not exercise the full suite of rights conferred on it in relation to the grant of the proposed licence. I accept the Government party’s reply that Mr Hopiga’s affidavit is not of great assistance to the Tribunal in relation to the extent of interference with community or social activities or with sites of particular significance. I also note the Government party’s reply in relation to the limited evidence received from the native title party on the extent to which the grantee party’s intended activities would be likely to result in major disturbance to land and waters. The native title party evidence is outlined and analysed in further detail later in this determination.

Submissions in relation to adopting parts of Auditor General’s report

On 17 February 2012, in response to the directions outlined at [45] above, the Government party lodged a statement of contentions in respect of the Western Australian Auditor General’s Report entitled Ensuring Compliance with Conditions on Mining – Report 8 – September 2011 (‘the Report’). The Government party’s submissions were, in broad terms, that:
·the Report relates to mining operations and not exploration, so it was not ‘particularly relevant’ to this inquiry;
·the Report doesn’t contain any information which bears on the predictive assessment in relation to s 237(b) of the Act to the extent of ‘whether it is likely or not that a particular grantee party will interfere with an area or site of particular significance’;
·the regulatory regime of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) does not necessarily mean ‘no area or site could ever be interfered with’, and
·improvements have been made to the regulatory regime since the Report data collection period ended (June 2011).

I will deal with each of these submissions in turn.

In relation to the Government party’s contention that the Report dealt with mining, not exploration, that is clearly outlined in the scope of the Report, and I note the Government party’s submission that online lodgement and tracking of exploration licences was implemented by DMP in 2009. Nevertheless, both mining and exploration activities have in common that a grantee party requests a grant to do activity on a tenement, and usually, conditions are applied by the Government party. To the extent that the Report raised concerns about those conditions and the regulatory regime in general, those concerns can arguably be extrapolated from mining activities to exploration activities.
In relation to the predictive assessment, it was the Government party’s original submission that the Tribunal should look to the ‘regulatory regime’ in weighing up the likelihood of interference (at 22 and 25 of their 22 December 2010 submissions). I do not agree with the Government party’s reply that one could ‘not suggest that the ... regulatory regime is breached to such a degree as to lead to an inference that all or many grantee parties, or a particular grantee party, are likely to fail to comply’ (at 12). In fact, the Report suggests that it is difficult to determine who is complying with what conditions and when. I do, however, agree with the Government party’s reply that weight must also be given to the evidence provided in relation to the proposed activities of each particular grantee party. In this matter, as stated at paras [14] and [39] of this determination, the grantee party has provided particularly helpful evidence in relation to the extent to which it intends to exercise its rights on the proposed licence. I do not find that the grantee party in this particular matter is likely to contravene the regulatory regime.
In relation to the nature of the regulatory regime and improvements made since the Report, the Government party’s reply is supported by an affidavit from Mr Aaron Rayner, Chief Heritage Officer of the DIA. The Government party’s reply states it provides information which the Report either did not consider, or underestimated. That information includes the self-report of damage or potential damage to Aboriginal sites, and that at least two traditional owners must monitor activities of a grantee party near relevant sites (although this latter point appears to relate to s 18 AHA sites only). Mr Rayner indicates that ‘the Department does not accept, or considers there are important qualifications to, some of the particular findings contained in the Report’ (at 7). I note, however, that these are not outlined in DIA’s published response to the Auditor General’s findings, which was included in the Report.
Mr Rayner also outlines some measures to improve performance in respect to site monitoring and protection since the Report was published, including the launch of the DIA Cultural Heritage Due Diligence Guidelines (which appears to relate not only to mining activities). He also refers to a Memorandum of Understanding with DMP where, for example, the holder of an exploration licence who wishes to use ground disturbing equipment within two kilometres of a registered site has their programme of works referred to DIA. (It is not clear whether this process was in use prior to the Report, or only subsequent to the Report, but it appears it is in existence currently.)
Overall, the Government party argues the Report is not relevant to this inquiry. It is clear that the Report dealt with the regulatory regime in relation to mining. However, for the reasons stated above, I adopt those parts of the Report as outlined in paragraph [45] to the extent that the Government party had relied on the regulatory regime as a whole in support of the argument that disturbances as per s 237 of the Act would not occur.

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.’

With respect to the limits of the Tribunal’s expedited procedure powers, I note the Tribunal’s observations in Western Desert Lands Aboriginal Corporation v State of Western Australia and Others (2008) 218 FLR 362; [2008] NNTTA 22 at [22]-[24], and [38]–[40], namely that the Act does not distinguish between registered native title claimants or determined holders of native title in the operation of the expedited procedure.

In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and I adopt those findings 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 Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings 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 the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v 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 Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
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 or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
As noted above, I have not formally adopted the reasons and decisions of the Member in ASJ Resources, including the evidence provided by the native title party in that matter. All of that information was, however, available to me to consider as part of the factual matrix of the present matter, as it was available to all the parties, as that determination is a public document, and I refer to some parts of that material in this determination.

Evidence in relation to the proposed act

Government party Tengraph Quick Appraisal documentation dated 8 December 2010 and 31 May 2011 establishes the underlying land tenure of the proposed licence to be vacant crown land. Seven surrendered mining leases held between 1990 and 1994 overlapped the proposed licence between 0.1 and 1.3 per cent. Two petroleum exploration permits overlap at 37.4 and 62.6 per cent respectively, and a geothermal exploration permit overlaps at 100 per cent.
The Government party’s Tengraph Quick Appraisal documentation notes a number of exploration licences that were withdrawn prior to grant, and that E04/1790, the subject of ASJ Resources was refused for grant (as outlined in [21] of this determination).
DIA documentation provided by the Government party shows no registered Aboriginal Sites or Heritage Places under the AHA within the area of the proposed licence.
Tribunal mapping shows no Aboriginal communities within the area of the proposed licence. The nearest Aboriginal communities are Kalyadayan, Wanamulnyndong, Frazier Downs, Rollah, Mullibidee and Bidyandanga, all located between approximately 30-45 kilometres north west of the proposed licence.
The Draft Tenement Endorsement and Conditions Extract included in the Government Party documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and the following further condition:
‘5.No interference with Geodetic Survey Station NMF 93 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.’
The Draft Tenement Endorsement and Conditions Extract also notes the following two endorsements for the proposed licence (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach):
‘1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any 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.’
Government contentions (at 5d) note a variant of the standard condition (the RSHA condition) offered by the Government party in all objection applications which proceed to an inquiry before the Tribunal:
‘The government party will place the following condition (“the proposed condition”) on the grant of the proposed tenement:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Karajarri Traditional Lands Association (Aboriginal Corporation) (WC00/2), the native title prescribed body corporate holding the determined native title of the Karajarri recognised in Federal Court application no. WAD6100 of 1998 (WC00/2), such request being sent by pre-paid post to reach the Licensee's address, c/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of the Karajarri Traditional Lands Association Aboriginal Corporation the Regional Standard Heritage Agreement endorsed by peak industry groups (eg the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA) and offered by the Kimberley Land Council.”
(See Butcher Cheryl & Others on behalf of Gooniyandi Combined #2 Native Title claimants/Western Australia/William Robert Richmond [2010] NNTTA 167 (14 October 2010), [46][64-65] per DP Sumner.)’
Despite the wording of the Government party’s RSHA condition, which is a little ambiguous, it appears that the native title party can, if it chooses, offer any endorsed RSHA to the grantee party upon grant of the proposed licence. If this is the case, even though the terms of the RSHA offered may not be satisfactory to the native title party, it would enable the native title party the opportunity to undertake site surveys prior to ground disturbing activity taking place on the proposed licence and would offer some level of heritage protection.

Native title party evidence and contentions

In support of its contentions the native title party provided the affidavit of Lenny Hopiga affirmed 16 September 2011 as follows:
‘I, Lenny Hopiga, Council worker, of Bidyadanga Community, in the State of Western Australia, affirm:
1.My name is Lenny Hopiga. My Aboriginal name is Budingi. I was born on the 21st of September 1957 in Broome, Western Australia. I was born at the ‘Native’ Hospital. My spirit, or rai, comes from Mabannguru, a rock where my mother had a dreaming that I would come. My spirit goes back there when I am done. Mabbanguru is on Karajarri Country.
2.I am a member of the Karajarri Native Title Determination Application (WC00/2).
3.I know the area where ASJ Pty Ltd, “the grantee party”, has applied for Exploration Licence Number E04/1999, “the exploration licence area”, very well because I grew up on that country at Frazier Downs pastoral station. I am a senior law boss for that country. I have walked and travelled that country all my life. I have been shown maps of the application area. The maps I was shown are attached to this affidavit and marked “A” and “B”.
4.I can speak for that country because of my connections through my family. Both my mother and father are Karajarri people from the Great Sandy Desert. All my grandparents were Karajarri people from the same area. I am responsible for carrying on and protecting what my parents and grandparents have given me.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The exploration licence area falls on country I have to look after under Karajarri law.
6.We go to the exploration area all the time to hunt and keep our eye on the special places around there. All the Karajarri people down that way go to the exploration licence area.
7.I go to the exploration licence area at least once a month. Sometimes three times a month if the hunting is good or we have to take kids out there. My brother Johnny goes out there all the time as well to hunt or with the kids. I know because he brings me bush tucker from there when he goes. Sometimes we camp out there.
8.It is easy to access the exploration tenement area because there are good tracks out that way. I went out there last month with my grandson and other young boys to hunt, teach about Karajarri law and the special places.
9.There are a number of scared sites in this area that are known to me from visiting and being told by my parents to look after them.
10.My brother and I take groups of kids out there all the time. Mainly boys so we can talk about Karajarri men’s business. We show them the places and tell them the stories. Some places we have to tell the stories from the road because they are powerful places where you cannot go.
11.On some of the trips we go out for a week at a time and camp out there. Other times we just go from Bidyadanga for the day.
12.There is good hunting in many parts of the exploration licence area. We hunt there. There is kangaroo (midimalu), emu (bijida), goanna (galgi) and turkey (bargarra [sic]). We take the kids hunting to teach them how to pluck emu and turkey.
13.We also take the kids out to monitor species of plants and animals. We tell them the name of trees and grasses. Things like that.
14.We get other bush tucker from the exploration licence area too. We go there all the time. There is a lot of bush tucker out there. We get bush banana (majabulla), bush tomato (kilalga), bush plum (mindljina) and bush passionfruit (jumbal). We usually collect bush tucker when we go out and hunt.
15.We also use the exploration licence area for bush medicines. We get the soap-tree (liligin) from there. You use it just like soap to wash yourself when you have a shower. We also get the balmungu from there. I don’t know the ‘white fella’ name for that. We boil it up and use the juice for putting on sores and to make you healthy. We also use it to smoke people. When the magistrate from Broome came we smoked him before he could go into one of our special sites. He asked for some for his kid who had been sick. We gave it to him so his kid would get better.
16.If the grantee party comes and does the exploration work without talking they could damage the land or interfere with our hunting and foraging rights over the exploration licence area. The company has to come and talk to us so we can make sure we can still hunt out there and take our kids.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
17.I know the exploration licence area very well. There are many special places through that country in and around the exploration licence area.
18.According to our old people the exploration licence area is not an area where there are a lot of special sites or burial grounds but we have some very special and very sensitive sites close to the exploration licence area.
19.We have a series of places called Punda Hill (pardu), Willara Hill (willuru) and Mt. Phire (payarr). Close by to willuru is avery [sic] special men’s place where the old people would get initiated into Karajarri law. Nobody is allowed to go there, not even me as someone who has gone through tribal law. Nobody is allowed to go there, not even me as someone who has gone through tribal law. It is a very powerful place. When we show kids to tell them the story we don’t go closer than the road. That place is very close to the west end of the exploration licence area and if the company goes too close there would be big trouble for us.
20.Just south west of Thunder Ridge there is a special place where there are paintings done by our old people. The exploration licence area surrounds the east side of that site. Old people used to camp in the caves there. It is hard to tell from the maps but the site is west of the new mine which would mean the site could be in the exploration licence area. We would need to go out there with the company to make sure before they went there by themselves.
21.We have to look after those sites under our law. We go out there all the time just to take a look at those places to make sure they are OK.
22.We take the kids out there to show them what they have to do when we are gone. We usually take 4 kids at a time and camp for a week. Either my brother Johnny takes them or I take them.
23.I have been up in a chopper and looked at that land. There are waterholes (jila) all over the country around the exploration licence area. All our waterholes are special.
24.People need to get permission from us before they go out there so we can direct them where to go and where not to go. If people damage those sites they hurt country, they hurt us, they hurt our dreaming and they might get themselves or their family hurt too.
MAJOR DISTURBANCE TO LAND OR WATER
25.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. We have had exploration companies in our country before. They drive heavy machinery over the land and can even drill holes.
26.White people and stranger ‘black fellas’ must ask for permission before coming onto my country because we have got a lot of very special places on my country. Everybody must get permission from our old people before they go on our land. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us.
27.In the old days ‘white fellas’ and strangers and even our people that haven’t been to an area for a while would get a stranger ceremony first. The old people would smoke them so they were OK to go onto country. The old people would welcome them to country and introduce them to the land. Now we just ask the company to talk to us proper way [sic] and then we can work everything out.
28.The company should make sure the Karajarri people get some benefit from them being on country. They can’t just come and use our land however they like they have to sit down with us first.
29.Karajarri people don’t feel good when we see exploration companies on our land. We think “what are they here for”? They need to talk to us to make it OK.
30.If the grantee party don’t do things the proper way then they might go somewhere that is important to someone’s dreaming or rai. The company needs to be careful when they go out to the exploration licence area.
Mr Hopiga identifies himself as a member of the Karajarri Native Title Determination Application WC00/2 and I accept he has the necessary authority to speak for Karajarri country on behalf of the native title party.

Grantee party evidence and contentions

The grantee party contends that the grant of the proposed licence is not an act attracting the expedited procedure with reference to s 237 of the Act (at 1). It attaches DIA documentation showing no registered Aboriginal sites or Heritage Places as evidence in support of its contention ‘that there are no Aboriginal sites within the Licence’ (at 4) and undertakes to comply with all relevant legislation, conditions and regulations (at 6, 8-9). It also contends that ‘the region in which the Licence is located has been the subject of previous exploration’ (at 7) and attaches Government party quick appraisal documentation in support of its contention. It states that disturbance to the land ‘will be kept to a minimum’ and outlines its ‘draft exploration program for the licence, comprising: Year 1 a low impact (quad-bike supported) ground gravity survey; Year 2 a 2D/3D seismic survey for drilling target definition; and Year 3 deep drilling programme to 1400 metres’ (at 12).

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 interference) (see Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘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). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 66, 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.
Whilst two petroleum exploration permits have been granted over the proposed licence area and a number of surrendered mining leases overlapped the proposed licence to a limited degree, the evidence does not suggest that this is an area of 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. This is consistent with the Tribunal’s findings in ASJ Resources at [24].
In ASJ Resources, the Tribunal found that ‘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’ (at [28]).
With reference to the 16 September 2011 affidavit of Mr Hopiga provided by the native title party in this matter, more specific evidence of community and social activities is presented (emphasis added):
·‘It is easy to access the exploration tenement area because there are good tracks out that way’ (at 8);
·‘All the Karajarri people down that way go to the exploration licence area’ (at 6);
·‘I go to the exploration licence area at least once a month. Sometimes three times a month if the hunting is good or we have to take kids out there’ (at 7);
·‘My brother Johnny goes out there all the time as well to hunt or with the kids. I know because he brings me bush tucker from there when he goes’ (at 7);
·‘I went out there last month with my grandson and other young boys to hunt, teach about Karajarri law and the special places’ (at 8);
·‘My brother and I take groups of kids out there all the time. Mainly boys so we can talk about Karajarri men’s business. We show them the places and tell them the stories’ (at 10);
·‘On some trips we go out for a week at a time and camp out there. Other times we just go from Bidyadanga for the day’ (at 11); and
·Details of hunting, bush tucker and medicine (at 12-15).

In Tarlpa (at [112]) Hon C J Sumner, Deputy President, held that if ‘a native title party regularly camps at a particular spot and the explorers wish to establish an exploration camp at the same place and drill or use earth moving equipment in the near vicinity of it then it can readily be said that there is a real risk that the community and social activities would be directly interfered with’.
In Wilma Freddie and Ors OBH of the Wiluna Native Title Claimants/Western Australia/KingX Pty Ltd [2011] NNTTA 170, the grantee party had not given any indication of the work they intended to carry out in the proposed licence area. In that matter, in the absence of evidence to the contrary, I assumed the grantee party would fully exercise its rights under the legislative regime and found that there was, in some tenements in that matter, a real risk that exploration activity was likely to directly interfere with the community and social activities of the native title party in a substantial or more than trivial way. In the present matter, the grantee party has presented evidence which suggests it does not intend to fully exercise its rights and wishes to work co-operatively with the native title party.
In addition in the present matter, the native title party has outlined activities that take place on areas which are near to, but not necessarily within the proposed licence. The grantee party has suggested that these should not be the subject of consideration by the Tribunal. In Silver, the Tribunal noted that:
‘In reaching its determination the Tribunal is not restricted to considering the activities of a grantee party within the area of the proposed tenement. However, if it is suggested that off-site activities be taken into account, then there must be a clear nexus between those activities and issues being considered under section 237. The Tribunal’s inquiry is limited and precise; it is not the role of an expedited procedure inquiry to traverse issues that have no direct relevance to the task at hand.’

Accordingly, I have considered the evidence presented by Mr Hopiga, but do not discount it as suggested by the grantee party – rather, I do not regard a sufficient nexus has been drawn between the activities of the native title party and the activities proposed by the grantee party, to support a finding that interference with such activities is likely.

Taking all of these factors into account, on the basis of the evidence provided, I find there is not a real chance or risk that exploration activity is likely to 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 (that is, more than ordinary) significance to the native title party in accordance with their traditions.
As stated at para [64] of this determination, the Register kept under the 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 (for example in Maitland Parker at [31]-[38], and [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 [2007] NNTTA 15 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.
In considering parties’ contentions, and generally in the course of an inquiry, s 146(b) of the Act gives me discretion to adopt any report of any person or body that may be relevant to the inquiry. The contentions of the Government party that their conditions and the regulatory regime will be sufficient to protect sites is central to the issues to be determined in this matter. To that end, I note the Report by the Western Australian Auditor General which suggests that ‘DMP’s inspection regime does not deliver adequate coverage or assurance that miners meet their conditions’ (at page 8) and that ‘DIA has not actively monitored if operators are meeting the conditions placed on them under the Aboriginal Heritage Act 1972 (AH Act). This means that registered Aboriginal heritage sites could have been lost or destroyed without the State knowing or taking action’ (at page 22).
While the report focused on mining activities, the findings could reasonably be extrapolated to also apply to exploration activities. To assist my consideration of these matters, I considered adopting parts of the Report as outlined at [43] of this determination. While there was no evidence to suggest the grantee party in this matter will not comply with the regulatory regime, in the face of such an independent report, I was concerned at the likely level of effectiveness of the site protective regime as outlined in the Government party submissions.
Submissions to the proposal I adopt parts of the report are addressed in [48]-[53] of this determination. Given these submissions, I am confident that in this matter, the grantee party will adhere to the regulatory framework and conditions imposed by the Government party, notwithstanding the general weaknesses in that system which have been pointed out by the Auditor General.
Mr Hopiga’s 16 September 2011 affidavit notes:
·‘According to our old people the exploration licence area is not an area where there are a lot of special sites or burial grounds but we have some very special and sensitive sites close to the exploration licence area.’ (at 18);
·‘... a series of places called Punda Hill (pardu), Willara Hill (willuru) and Mt. Phire (payarr). Close by to willuru is avery [sic] special men’s place ... very close to the west end of the exploration licence area and if the company goes too close there would be big trouble for us.’ (at 19);
·Paintings and camping area/s in the caves ‘[j]ust south west of Thunder Ridge ... west of the new mine which would mean the site could be in the exploration licence area.’ (at 20); and
·Waterholes (jila) ‘all over the country around the exploration licence area. All our waterholes are special.’ (at 23).
Tribunal mapping indicates that none of the sites noted by Mr Hopiga at [88] above are within the proposed licence. However, it is not clear from the evidence whether the paintings and camping area/s in the caves ‘[j]ust south west of Thunder Ridge’ or any waterholes are within the proposed licence. Thunder Ridge itself is within another tenement, directly to the south of the proposed licence, and sits approximately two to three kilometres from the south west boundary of the proposed licence. Nonetheless, by virtue of this determination, the grantee party has been put on notice that the caves and waterholes may be within the proposed licence, and therefore cannot rely on s 62 of the AHA.
In Silver at [29]-[30], Member Sosso outlined that ‘[t]he 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.’ In the present matter, the grantee Party has provided detailed information regarding its intention, examples of which are outlined in this determination.
It appears that the grantee party’s intention toward the native title party and the regulatory regime is a positive one, and I am confident the grantee party will act within the regulatory regime to eliminate the likelihood that sites of particular significance may be interfered with. Given the findings in the Auditor General’s Report, and specifically the comments regarding ‘weaknesses in how other social, environmental and economic conditions are monitored and enforced’ (at page 4), it appears that the native title party will largely be at the mercy of the grantee party to ensure compliance with the regulatory regime on this proposed licence. As outlined above, there is no evidence to suggest the grantee party will not comply with the regulatory regime.
I have considered the sites and areas raised by the native title party, and accept that some or all of those may be of particular significance to the native title party. However, I do not regard that a sufficient nexus has been drawn between the activities proposed by the grantee party which are likely to occur on the licence, and these sites, to the extent that they will likely be interfered with by the grantee party.
Taking all these factors into account, I find it unlikely that there is a real risk of interference with sites of particular significance by the exploration activity proposed by the grantee party.

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 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 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 and Another (2005) 190 FLR 362; [2005] NNTTA 1 at [74]-[79] and the cases cited therein).
On the balance of the evidence provided in this matter, I find it is insufficient to suggest there are any factors leading to a finding that major disturbance to land or waters is likely. I find there has not been evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113. Nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver.

Determination

The determination of the Tribunal is that the future act consisting of the grant of exploration licence E04/1999 to ASJ Resources Pty Ltd is an act attracting the expedited procedure.

Helen Shurven
Member
24 February 2012