Keith Narrier & Ors on behalf of Tjiwarl/ Western Australia/ Gazard Investments Pty Ltd - [2014] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Keith Narrier & Ors on behalf of Tjiwarl/ Western Australia/ Gazard Investments Pty Ltd [2014] NNTTA 12 (28 January 2014)

Application No: WO2013/0270

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

Keith Narrier and Others on behalf of Tjiwarl (WC2011/007) (Tjiwarl native title party)

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The State of Western Australia (Government party)

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Gazard Investments Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Member Helen Shurven

Place: Perth
Date: 28 January 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application –whether act likely to interfere with sites of particular significance - expedited procedure attracted

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

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66

Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustus Nominees’)

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora v Heron Resources’)
Cheinmora v Striker Resources (1996) 142 ALR 21, (' Cheinmora v Striker Resources')
Daisy Lungunan and Others on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Lungunan v Geotech International’)
Harvey Murray and Others/ Western Australia/ Drew Griffin Money [2011] NNTTA 91, (‘Murray v Money’)
Karajarri Traditional Lands Association (Aboriginal Corporation) /Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri v ASJ Resources’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tullock v Bushwin)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Parker v Iron Duyfken’)
Mark Lockyer & Others/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker v Western Australia No 1’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker v Western Australia No2’)
Ronald Crowe & Others/Charlie Lapthorne & Others/Western Australia/Zhukov Pervan [2008] NNTTA 71, (‘Crowe v Pervan’)
Valerie Tambling and Others/Northern Territory/NT Gold Pty Ltd & Anor [2002] NNTTA 209, (‘Tambling v NT Gold’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 ('Yindjibarndi Aboriginal Corporation v FMG')

Representatives of the Mr Mike Allbrook, Central Desert Native Title Services

native title party:

Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum

Representatives of the Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd
grantee party:

REASONS FOR DETERMINATION

The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant E53/1715 (‘the proposed licence’) to Gazard Investments Pty Ltd (‘the grantee party’) on 14 November 2012. The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The proposed licence is 11BL in size (approximately 33.579 square kilometres) and located 71 kilometres south west of Wiluna, in the Shire of Wiluna.
The Tjiwarl native title claim (WC2011/007 – registered since 13 January 2012) (‘the native title party’) wholly overlaps the proposed licence.
Parties had until 14 March 2013 to lodge objections in relation to the expedited procedure statements. On 13 March 2013, an objection application was lodged with the Tribunal by Keith Narrier & Others on behalf of the native title party.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Parties attempted to reach agreement between approximately April and September 2013.
On 6 September 2013, the Tribunal set directions and programmed this matter for inquiry as an agreement had not yet been reached.
Following a request to vary compliance dates, final directions were issued by the Tribunal on 18 October 2013. In compliance with those:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government party on 21 October 2013;
·the native title party provided a statement of contentions on 11 November 2013 together with an affidavit of Mr Kado Rentan Eldred Allison Muir sworn 30 October 2013 (see Annexure 1 to this decision);
·the grantee party provided a statement of contentions on 18 November 2013; and
·the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions in response to the contentions of the native title party on 25 November 2013.
The native title party’s contentions state they would not be pursuing a determination in respect of s 237(a) and s 237(c) of the Act. As such, I will be considering information and evidence relating to s 237(b) only in this determination.
I consider this a matter which can be determined ‘on the papers’ as provided for in s 151 of the Act, and I note that no party has requested otherwise.
On 6 January 2014, I was appointed as the Member for the purpose of determination of this inquiry.
On 10 January 2014, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no objections were received in response.
On 15 January 2014, the grantee party representative sought an amendment to the map in terms of the legend referring to the Department of Aboriginal Affairs register of sites. This amendment was made and an amended map distributed to parties on 17 January 2014.

Legal principles

Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
...
(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.
...
In Walley v Western Australia, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]).
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Parker v Ammon at [31]–[38] and [40]-[41] (see also Parker v Western Australia No1; Parker v Western Australia No 2).

Evidence and information provided about the proposed act

Government party

The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; a report and plan from the Register of Aboriginal Sites maintained by DAA; a copy of the tenement applications; a copy of the proposed endorsements and conditions of the grants; the instruments of licence; and quick appraisal documents.
I note the underlying land tenure to comprise pastoral leases 3114/737 (‘Albion Downs’) and 3114/549 (‘Mt Keith’), covering 99.8 per cent of the proposed licence.
The proposed licence is overlapped by: three live miscellaneous licences, encroaching variously between 0.1 per cent and 0.4 per cent; eight live mining leases, encroaching variously between 0.9 per cent and 18.2 per cent; and one pending mining lease, overlapping 0.1 per cent. Dead tenements affected are: 11 exploration licences in operation between 1983 and 2012, overlapping the proposed licence between 1.4 per cent and 63.6 per cent; 23 gold mining leases in operation between 1911 and 1982, encroaching variously between less than 0.1 per cent and 0.3 per cent; three mining leases in operation between 1989 and 2001, encroaching variously between 1.3 and 13.4 per cent; 35 mineral claims in operation between 1968 and 1983, encroaching variously between less than 0.1 per cent and 3.6 per cent; 16 prospecting licences in operation between 1988 and 2012, encroaching variously between 0.1 per cent and 6.3 per cent; and two temporary reserves in operation between 1966 and 1972, which encroached 8.4 per cent and 91.6 per cent respectively.
The quick appraisal documents show the services affected in relation to this proposed licence include: nine historic mine sites; 176 historic abandoned mine sites; two minor roads; six tracks; seven fence lines; one yard; one tank; two landmark areas; and Mount Keith.
Government party documentation indicates that there are no registered sites in the proposed licence, however, there are ten ‘other heritage places’ recorded by DAA:

*Site ID*	*Name*	*Type*
22325	MTK01 – Ridge/Formation (Mount Keith 01)	Mythological, Quarry, Artefacts/Scatter
22326	Mt Keith 02	Ceremonial, Artefacts/Scatter
22327	MTK04 – Camping Area (Mt Keith 03)	Ceremonial, Mythological, Artefacts/Scatter
22328	MTK07 (Mt Keith 04)	Mythological
22330	MTK13 (Mt Keith 06)	Ceremonial, Mythological, Artefacts/Scatter
22682	Mt Keith 07 (Breakaway Ridge)	Ceremonial/Mythological
22683	Mt Keith 08 (Camping Area)	Ceremonial/Mythological
22684	Mt Keith 09 (Laterite Hill)	Ceremonial/Mythological
22685	Mt Keith 10 (Ridge)	Ceremonial/Mythological
22686	Mt Keith 11 (Hill and Camp)	Ceremonial/Mythological

The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Bushwin at [11]). The following additional conditions would also be imposed on the proposed licence:
5.    The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6.    The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
·     the grant of the Licence; or
·     registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on State Battery Reserve 15441.
8.    The rights of ingress to and egress from Miscellaneous Licences 53/63, 53/109 and 53/119 being at all times preserved to the licensees and no interference with the purpose or installations connected to the licences.
9.    No excavation, excepting shafts, approaching closer to the Goldfields Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Goldfields Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
10.     No interference with Geodetic Survey Stations NMF 132 and NMF 132T and mining within 15 metres thereof being confined Draft to below a depth of 15 metres from the natural surface.

The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.    The Licensee’s attention is drawn to the provisions of the:
·      Water Conservation Act, 1976
·      Rights in Water and Irrigation Act, 1914
·      Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·      Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
1. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
2. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
1. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
1. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
1. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The Government party states (at 25) that it will also place the following condition (‘the proposed RSHA condition’) on the grant of the proposed licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Tjiwarl People, the applicants in the Federal Court Application no WAD 6164 of 1998 (WC99/24), such request being sent by pre-paid post to reach the Licensee’s address, C/- McMahon Mining Title Services Pty Ltd, 28/168 Guildford Road, Maylands WA 6051, not more than ninety days after the grant of the this licence, shall within thirty days of the request execute in favour of the Tjiwarl People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Ngaanyatjarra Land Council

Grantee Party

The grantee party have provided detailed contentions. They state the proposed licence substantially overlaps granted mining leases applied for, so only a portion of the proposed licence is available for grant (at 3). It notes there are ten ‘other heritage places’ in the proposed licence, but states the majority of these are not located within the area available for grant (at 17). I note Tribunal mapping and DMP information shows these other heritage places are clustered along the middle and towards the western portion of the proposed licence, with the area to be granted being predominantly along the eastern side of the proposed licence. The grantee party states that its exploration activities on the proposed licence are the usual activities associated with exploration licences, including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys (at 31).
The grantee party states it has offered the Regional Standard Heritage Agreement (‘RSHA’) for the proposed licence to the native title party representative on 23 October 2012, and the offer remains open (at 4-5). The grantee party submits the offer of the RSHA over the proposed licence ensures that the grantee party is compliant with existing law and policy and also imposes additional obligations (at 11). It notes the operation of s 17 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’), and indicates it has never been prosecuted under, or accused of breaching, the AHA (at 8 and 10).
The grantee party refers (at 46) to the previous Tribunal decision of Tamblingv NT Gold to state that the native title party 'is obliged to inform the tribunal where there are any sites of particular significance in the specific area or vicinity...and explain the sacredness of such a site through evidence'. In Tambling v NT Gold, Member Sosso referred to the decision of Carr J in Cheinmora vStriker Resources (at [34]-[35]) where His Honour referred, firstly to the principle that a site must be of more than ordinary significance, and, secondly, that this special quality is assessed from a proper consideration of the traditions of the relevant native title holders.
The grantee party argues that no substantive evidence has been provided of specific sites of significance within the proposed licence (specifically within the area available for grant), or of the likely physical interference with these sites as a result of the grant of the proposed licence (at 47).

Native Title Party

As noted above, the native title party have submitted contentions in relation to s 237(b) of the Act only.
The native title party notes concerns about the State’s regulatory regime, citing, for example, the WA Auditor General’s report entitled Ensuring Compliance with Conditions on Mining dated September 2011 (at 2.16-2.17). The native title party states that I should adopt my decision in Karajarri v ASJ Resources. I do note my comments in that case as extracted by the native title party (at 2.18), including in relation to various reports which had been written in relation to the weaknesses of the states regulatory regime. However, I also concluded in Karajarri v ASJ Resources (at [48]-[53]) that each matter must be dealt with on its individual facts to determine whether the protective regime is sufficient to make it unlikely that there will be interference with any sites of particular significance found to exist.
The native title party also submits:
·the proposed licence contains sites of particular significance, being those created by the tjukurrpa (at 3.25; Mr Muir’s affidavit at 5-7);
·they have an obligation to maintain and protect sites of particular significance located with the proposed licence (at 3.26; Mr Muir’s affidavit at 7-9);
·the nature of the country on, and surrounding, the proposed licence is such that entry onto parts of the proposed licence and surrounds which have not been agreed with the native title party would be likely to result in interference within the meaning of s 237(b) of the Act; tjukurrpa tracks are not readily identifiable ‘by persons other than those instilled in the mysteries of the tjukurrpa’, and interference with one part may cause interference to sites and/ or country located at other points along the tjukurrpa (at 3.27; affidavit of Mr Muir at 2, 5-9).
·the removal or interference with objects found in the natural environment in the proposed licence would constitute interference for the purposes of s 237(b) of the Act, including interference with rocks, stones and water courses (at 3.28; affidavit of Mr Muir at 6);
·the nature and importance of the sites within the proposed licence is such that certain activities permitted will constitute interference pursuant to s 237(b) of the Act, but may not necessarily be prohibited under s 17 of the AHA (at 3.29);
·the proposed condition requiring the grantee party to offer the RSHA does not mean it is unlikely that the future act will interfere with sites or areas of particular significance, including due to the nature of the sites and areas of particular significance (at 3.30; Mr Muir’s affidavit at 6) - I do note that this contention includes a statement that '[t]he Draft Conditions do not currently propose to make the grant of the Tenement conditional upon the Grantee Party offer [of] the RSHA' (at 3.30(a)) - however, those contentions were provided prior to the Government party contentions, and the latter indicate they intend to apply such a condition to the grant of the proposed licence (as outlined at [23] above); and
·meaningful consultation and negotiation between the native title party and the grantee party are necessary to ensure that sites of particular significance are not likely to be interfered with, including due to the nature of the sites or areas of particular significance and issues such as access and gender restricted areas (at 3.31; Mr Muir’s affidavit at 2 and 7-9).

The native title party contentions argue that 'in areas where a proposed future act has been demonstrated to be site rich, it is incumbent upon the Grantee Party to lead some evidence...to provide basis upon which the NNTT might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas' (at 2.13).
The term site rich is to be deciphered carefully. In Lockyer v Mineralogy, the use of site rich was construed by Deputy President Sosso (at [19] to [21]) as follows:
...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is 'site rich'. That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is 'site rich'.
In this matter, the native title party points the Tribunal to the fact that the proposed licence is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is 'site rich' without direct evidence from a person or persons from the relevant claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group. In this matter, the explanation is from the appropriate persons, but it is very broadly presented in relation to this proposed licence.
In Lungunan vGeotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance, and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Lungunan vGeotech International at [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance[s], in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
Consequently, I conclude that the term 'site rich' is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party.

Considering the Evidence

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are no registered sites within the proposed licence. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The grantee party’s intended activities and intentions are outlined at [24]–[27] above, and the Government party contentions and information is outlined at [17]-[23] above.
The native title party contentions and evidence in relation to s 237(b) are outlined at [29]-[31] above. As previously noted, an affidavit was submitted from Mr Muir. Mr Muir states that he is a member of the Tjiwarl native title claim and an authorised member of the applicant. He states that he is an initiated man - a wati - and has cultural authority to speak for the area of the proposed licence (at 1). Mr Muir also notes that he is a Ngalia man, has family ties to the Martu people in the north and in other parts of the desert, and indicates that he was shown a copy of the map of the proposed licence (at 2-3). I accept he has authority to speak in relation to the country under consideration in this decision.
Ms Muir’s affidavit states the proposed licence is located north of Mount Keith just south of the north-eastern most boundary of the Tjiwarl claim area (at 4). He states there are a number of sites at Mount Keith ‘that we visit on occasion’, and recalls his mother telling him as a child that the country at Mount Keith was ‘her country’ (at 4). Mr Muir indicates that the most prominent site at Mount Keith is a rocky bluff with rockshelters all through it, which are associated with an important tjukurrpa (at 5). He states there ‘is also a small rockhole located within the proposed licence which is also very important to us and which is associated with that tjukurrpa, too’ (at 6). He says that he did not want to divulge specific details about the tjukurrpa in the proposed licence because it is important they keep their culture secret and strong (at 7). Mr Muir also notes that as a wati he has responsibility to care for country and look after that tjukurrpa, and that if something happened to the tjukurrpa in the proposed licence, he would ‘get in trouble from other wati’ and would also feel that he had let down his ancestors (at 8).
I accept Mr Muir’s evidence regarding the existence of a rocky bluff containing rockshelters through it, as well as a small rockhole, which he states are all associated with an important tjukurrpa. However, I do not find that the particular significance of these sites has been established for the purposes of s 237(b) of the Act. I note Mr Muir states he did not want to divulge specific details about the tjukurrpa in his affidavit, but the native title party did not make a request for an order under s 155 of the Act, which could have assisted the native title party to provide this information to the Tribunal confidentially. The Tribunal has held on previous occasions that a native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker v Iron Duyfken at [39]; Cheinmora v Heron Resources at [43]). To the extent that the grantee party’s activities may cause interference to sites in the area of the proposed licence, I note the grantee party has offered to enter into an RSHA and they seek to consult with the native title party through the mechanisms available under the RSHA (at 4-5).
I note there are ten ‘other heritage places’ in the proposed licence. However, as the grantee party states, the majority of these are located over areas subject to existing mining tenements which would be excluded from the grant of the proposed licence (at 3).
I also note the native title party states it does not accept the RSHA as an adequate means of dealing with issues under s 237 of the Act, and indicates that the Tjiwarl native title claim group has never endorsed the use of the RSHA and will not enter into an RSHA in this matter (at 3.18). Had the native title party made out with greater detail the existence of sites of particular significance in the proposed license, then I would have looked further into these arguments to see the level of protective effect they may have had. In addition, in relation to the RSHA, I draw parties attention to the comments made by President Webb in Yindjibarndi Aboriginal Corporation v FMG (at [122]-[124]).
However, given the general nature of the native title party’s evidence in relation to this limb of s 237, I do not intend to address these points in any great detail. For example, the native title party argues that 'the nature of the country on, and surrounding, the tenements is such that any entry on to parts of the tenements or the surrounding country which has not been agreed with the members of the Tjiwarl native title claim group, would be likely to result in interference within the meaning of s 237(b)’ (at 3.27). The native title party cites Crowe v Pervan (at [99]) in support of this. However, in that decision, a site of particular significance was shown to exist on the relevant area, was identified in the evidence, and its 'particular sacredness' was explained by the native title party (at [90]). In addition, a vast array of sites were said to exist in the relevant area, including gender restricted sites, and none of this evidence was contested by other parties.
In the present matter, the evidence provided by the native title party does not appear to be extensive or detailed, and the evidence has been contested by the Government and grantee party. The native title party refer, for example, to the interference with the tjukurrpa (for example at 3.27 (b)) but again these references are so general, referring to a domino effect of interference between tenements, that it is not particularly helpful for the purposes of assessing particular significance under s 237(b). This is not to say that I do not believe the area is of importance to the native title party, or that Mr Muir has responsibilities in relation to the area. What I am saying is that for the purposes of s 237 of the Act, which is the context in which I must make such arbitral decisions, I cannot conclude there are any sites of particular significance on the proposed licence.
As mentioned, the native title party expresses concern in their contentions about the adequacy of the State’s regulatory regime (at 2.14-2.21). I refer to the Tribunal’s previous findings in this regard, that both the existence of the AHA and the availability of the RSHA give rise to a presumption that sites will be protected, and the Auditor General’s Report does not necessarily affect this presumption unless evidence indicates that it should (see for example, Murray vMoney). I also take into account President Webb's comments in relation to the State's regulatory regime in Yindjibarndi Aboriginal Corporation v FMG (at [117]-[121]).
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Cherel v Faustus Nominees (at [81]-[91])). The Tribunal must consider, based on facts of a particular case and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites. I also take into account the conditions and endorsements the Government party intends to impose on the grant of this proposed licence (as outlined at [21]-[23] above).
The native title party’s contentions argue there are circumstances where the AHA and the associated regime will not be sufficient to ensure that s 237(b) interference is unlikely, taking into account the nature of any site or area, whether there is an area or site of particular significance, the nature and size of such an area or site, and the intentions of the grantee party (at 3.23). In this respect I agree with the native title party and have taken into account each of these factors in relation to this limb of s 237. I do not believe that the native title party has, in their contentions or evidence, convinced me that there is a site or area on the proposed licenses which is of particular significance and so I can draw no conclusions about the nature or the size of such an area or site.
I do not need, therefore, to go to the next stage of drawing a conclusion about whether interference with such a site is likely to occur. However, even if a site of particular significance was found to exist on the proposed license, I take into account the previous mining tenements, the services affected on the area which appear to indicate a significant amount of previous activity, the stated intentions of the grantee party, the fact that even exercising their full rights available under the Mining Act they are still only entitled to undertake exploration activities which are likely to be the same as, or less intrusive on any such sites than the previous activity.
In drawing my conclusions in this matter, I have also had regard to the following:
·The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive;
·The proposed licence is almost wholly subject to pastoral leases; and
·The AHA and its associated processes are likely to prevent interference with any area or site of particular significance to the native title holders.
In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(b) of the Act in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E53/1715 to Gazard Investments Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member

28 January 2014

ANNEXURE 1

Affidavit of Kado Rentan Eldred Allison Muir

I am a member of the Tjiwarl native title claim group (WAD 228 of 2011) and an authorised member of the Applicant. I am an initiated man, a wati and I have cultural authority to speak for the area of tenement application E53/1715 (the Tenement).
I am a Ngalia man, and I have family ties to the Martu people in the north and in other parts of the desert. All the desert people have responsibilities to the country there in the Tenement, and we all follow the tjukurrpa, [the dreaming] which is the desert law in the same way.
I have been shown a copy of the map for the Tenement by a staff member of Central Desert Native Title Services. A true and accurate copy of the map is attached to this affidavit and marked ‘KM1’.
The Tenement is located north of Mount Keith just south of the northern boundary of the Mount Keith mine site which s on the north-eastern most boundary of the Tjiwarl claim area. One of my earliest memories is of my mother, whose name I cannot say for cultural reasons, telling me about the country there at Mount Keith which is part of her country. My mother used to tell me the stories about that country so that I would know it.
There are a number of sites there at Mount Keith inside that Tenement that we visit on occasion. The most prominent of which is a rocky bluff with rockshelters all through it. These sites are associated with an important tjukurrpa, a dreaming story.
There is also a small rockhole located within the Tenement which is also very important to us and which is associated with the tjukurrpa, too. It is small but it is an important tjukurrpa and it might get damaged or destroyed if an explorer goes out there without the traditional owners to show them where they can go so they don’t destroy that tjukurrpa there in the Tenement.
These sites have a name and a story that desert people like me know. I do not want to divulge specific details about that tjukurrpa in the Tenement because it is important that we keep our culture secret and strong.
As a wati, I have responsibility care for country and look after the tjukurrpa there in those Tenements. If something happens to the tjukurrpa on those Tenements then I will get in trouble from other wati but I would also feel that I let down my ancestors who looked after it for a long time before me.
There are places on country where it isn’t safe for people to go without people who know the tjukurrpa and they need to be shown where that can go and what they can do so that they don’t destroy the tjukurrpa and don’t prevent us from enjoying out cultural heritage.