Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/Top Iron Pty Ltd - [2013] NNTTA 64

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/Top Iron Pty Ltd, [2013] NNTTA 64 (11 June 2013)

Application No: WO2012/1065

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

Leedham Papertalk and Others on behalf of Mullewa Wadjari (WC1996/093) (native title party)

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The State of Western Australia (Government party)

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Top Iron Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 11 June 2013

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

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

Aboriginal Heritage Act 1972 (WA)
Mining Act 1904 (WA) (repealed)
Mining Act 1978 (WA), s 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48, ('Andy Campbell')
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99. (‘Cheinmora’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, ('Geotech')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133, (‘Mineralogy’)
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd [2012] NNTTA 108, (‘West Peak Iron’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118, ('Allarrow')
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)

Representatives of the Ms Lesleigh Bower, Corser & Corser Lawyers

native title party

Representatives of the Ms Caitlin Martin, State Solicitor’s Office

Government party Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the Mr Michael Giles, Top Iron Pty Ltd
grantee party

REASONS FOR DETERMINATION

On 22 August 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1816 (‘the proposed licence’) to Top Iron Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
According to the notice:
·the proposed licence is approximately 39.2 square kilometres in size;
·the proposed licence is located 12 kilometres south west of Yalgoo, in the Shire of Yalgoo;
·the native title party had until 24 December 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
The native title claim of the Mullewa Wadjari Community (WC1996/093), registered from 19 August 1996 (‘the native title party’), wholly overlaps the proposed licence (designated by the Tribunal as WO2012/1065). On 25 September 2012, an objection application was lodged with the Tribunal by Leedham Papertalk and others on behalf of the native title party. An amended objection application was subsequently lodged on 30 November 2012. Wajarri Yamatji (WC2004/010) overlaps the proposed licence by 0.02 per cent, and lodged an objection application which was withdrawn on 26 July 2012 on the basis that the portion of overlap with the Wajarri Yamatji claim would be excised upon grant. Widi Mob (WC1997/072) also wholly overlaps the proposed licence, but did not lodge an objection application.
On 3 December 2013, I was appointed by the then President, Mr Graeme Neate, as the Member for the purpose of conducting the inquiry.
In accordance with standard practice, 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.
Notes from the first preliminary conference convened on 15 January 2013 indicate that the grantee party advised it had offered to execute a Regional Standard Heritage Agreement (‘RSHA’) but this had not been accepted - it is not clear to which claim group overlapping the proposed licence was offered the RSHA. The grantee party requested the matter proceed to inquiry.
Directions were issued by the Tribunal and in compliance with those:
·DMP provided documents to the Tribunal and other parties on behalf of the Government party on 15 January 2013;
·the native title party provided a statement of contentions on 19 March 2013; and
·the State Solicitor’s Office provided the Government party’s statement of contentions in response to the native title party contentions on 17 April 2013.
The grantee party did not file any contentions, nor did it indicate whether or not it was relying on the Government party contentions. On that basis, I have submissions only from two parties to consider in this matter.
A listing hearing was scheduled for 2 May 2013, however, all parties agreed to vacate and proceed to inquiry on the papers. On 14 May 2013 the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination. There was some email discussion between the native title party and DMP regarding whether or not Division Well was within the proposed licence. The Tribunal responded that the location of Division Well (which was outside the proposed licence) 'is consistent with its location in the Geonoma database held by Landgate, which is regarded as the authoritative source for geographic names in Western Australia. While there are other features with the same name in the general vicinity, there are none in Geonoma within or closer to the future act in question'. There were no other comments in relation to the map.

Legal principles

Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).

Evidence and information provided about the proposed act

I note at the outset of this determination that there was no affidavit evidence provided by any party to support contentions. While there is no burden of proof in such matters, it is certainly helpful if facts within a parties knowledge are lead by way of evidence, to assist the Tribunal in its decision making. In this matter, the native title party has provided no affidavit evidence, and the grantee party has provided no information or evidence at all. As such, it is a matter where I have limited information and evidence upon which to base a decision.

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 area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.
I note the underlying land tenure of the proposed licence to be as follows:
• Pastoral leases -
(i)PL3114/662 (Gabyon) at <0.1 per cent;
(ii)PL3114/1163 (Bunnawarra) at 6 per cent; and
(iii)PL3114/632 (Carlaminda) at 84.2 per cent.
• Road reserves -
(i)No 6248 at <0.1 per cent; and
(ii)Geraldton Mount Magnet Road at <0.1 per cent.
• Historical leases -
(i)H394/622 at 0.2 per cent; and
(ii)H394/831 at 90.4 per cent.
• PPA69 State Onshore Pipeline Licence and centre line (PL43) at 0.7 per cent and <0.1 per cent respectively;
• A vermin-proof fence (CR12300) at 0.1 per cent;
• A state infrastructure corridor (CR48372) at 8.2 per cent; and
• Vacant Crown land at a total of 0.6 per cent.
The quick appraisal indicates the proposed licence was overlapped by: seven previously granted exploration licences between 1988 and 2011 at a range of between 7.2 per cent to 96.2 per cent, all now surrendered or expired; fifteen mineral claims between 1970 and 1973 (under the then Mining Act 1904 (WA)) at a range of <0.1 per cent to 3.1 per cent, all now surrendered; and a miners homestead lease granted in 1911 and forfeited in 1912, which overlapped by 0.1 per cent.
The quick appraisal document shows the services affected in relation to E59/1816 are: a prospect/outcrop; a major road (Geraldton Mount Magnet Road); multiple tracks; an abandoned railway; a ruin; fence lines; yards; three wells/bores with windmills; below ground pipelines; quarry/ mullock sites and cable optic fibre.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licence.
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 Tarlpa 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 Infrastructure Corridor Reserve 48372 and Vermin Proof Fence Reserve 12300.
8.   No interference with Geodetic Survey Station ZD11 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The following endorsements (which differ from conditions in 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:
·The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
·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.

Grantee party

The grantee party has not filed any submissions, and has not requested any extension of time in which to do so.

Native title party

s 237 (a)

The contentions addressing the native title party’s community or social activities are contained in their paragraphs 9-22. They refer (at 9) to the native title party’s regular four-day ‘hunting weekends’ within the proposed licence, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo. The native title party state (at 10) that the proposed licence is located ‘close to’ the Murchison River, which is particularly important to the Mullewa Wadjari community as it is a major travel and hunting route for the hunting weekends, due to the fertile grounds surrounding the waters. I note that the proposed licence is nearby Yalgoo, but that Geraldton is approximately 170km to the south west, so the area described by the native title party as being particularly important is a large area, compared with the size of the proposed licence.
The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:
·‘The hunting weekends involve activities such as foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children’ (at 11);
·‘The hunting weekends occur on an almost weekly basis (if weather permits). Although known as “hunting weekends” amongst the Mullewa Wadjari community, the hunting trips do not always occur on the same days of the week nor do they always include Saturday and Sunday’ (at 12);
·‘Generally around 90% of the Mullewa Wadjari community members attend the weekly hunting weekends, which usually amounts to in excess of 100 people traveling in more than twenty 4WD vehicles’ (at 13);
· ‘During the hunting weekends, the community members hunt for native fauna such as kangaroos, emus, wild turkeys, goannas, blue tongue lizards and snakes. Occasionally, the members also hunt non-native species such as goats and rabbits’ (at 15);
·‘A large proportion of the meats and foods gained from the hunting weekends will be brought back to the Mullewa Wadjari community where they will be shared amongst the members, including those who could not attend the hunting trip’ (at 16);
·‘Hunted meats are also used to trade for commodities such as petrol and diesel which is used by members of the community’ (at 17);
·‘During the hunting weekends, adults within the Native Title Party will teach the children traditional knowledge’ (including location of food and water, cooking techniques, use of tools and reading the sky) (at 18).
The contentions also state that ‘in addition to the community-wide weekends, individual members and families of the native title party also regularly travel within and across the tenement area for hunting and gathering, foraging, fishing and camping purposes’ (at 14).
Further, the native title party asserts that it ‘continues to use the area of land over the proposed licence and its surrounds to travel to sites where they conduct sacred lore meetings. These sites are described as ‘numerous’ and ‘very important to the tribal men, women and children of the Mullewa Wadjari People’ (at 19).
The contentions state that the proposed licence is significant to the native title party because of its close proximity ‘to a series of salt lakes and sacred lore grounds located to the south of Yalgoo’, where initiation ceremonies are conducted, and that access to the salt lakes and lore grounds is gained by travelling across the proposed licence (at 20-21). However, because these lakes are not identified in any way, apart from being to the ‘south’ of Yalgoo, I could not say that travelling across this proposed licence was the only way to approach the lakes.
The native title party contends (at 22) that if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed licence, there is a real chance or risk that such activities will interfere directly with the carrying on of the native title party’s community and social activities, in particular:
·hunting, gathering, fishing, camping and the teaching of laws and customs to children;
·the travel route frequently used by the native title party to attend sacred lore meetings, ceremonies and sites;
·the balance of wildlife and food sources around the proposed licence which will directly interfere with hunting, foraging and fishing activities; and
·if land on the proposed licence is damaged, the native title party will have to travel further and further out in order to hunt and gather food and resources.

s 237(b)

The contentions addressing sites or areas of particular significance, in summary state:
·The native title party has ‘a very strong cultural connection to Wolla Wolla Hill, which is located approximately 5km to the west of the Tenement’ (at 24);
·The native title party has a very strong connection to the Murchison River, and its surrounding bodies of water, which ‘is always fertile and supports many animals and plants which form a major source of food’ (at 25);
·The native title party believes that after death, ‘the spirits of the deceased travel into the Murchison River and surrounding water bodies and eventually settle in the land itself’, so it is important ‘that these water bodies are not damaged or disturbed’ (at 26);
·The Murchison River ‘forms part of the native title party’s dreamtime stories, including the depiction of a man-like spirit snake named Bimbara’. ‘The native title party’s belief system teaches that if the River or waterholes housing the Bimbara are disturbed, the descendants of these spirits will experience misfortune, ill health and possibly death’ (at 27);
·Although the Bimbara do not reside in man-made water courses, the native title party believe that three wells 'located within the Tenement area' (including ‘Bona Well’ and ‘Division Well’) ‘once took the form of natural springs which their ancestors would have relied upon as important sources of water’ (at 28);
·‘The approximately 15km stretch of land between Carlaminda (located north of the proposed tenement) and Badja Station (located south the Tenement) is another place of significance for the native title party, due to the high prevalence of caves in the area’, which are located throughout the proposed licence, and which the native title party suggests ‘a high likelihood of artefact scatter remains within the Tenement area’ (at 29);
·There is a traditional law requiring the native title party to care for and protect places where its ancestors have lived, and hold ‘a strong desire to uphold this duty of protection’ (at 30);
·The nature of some sites within the proposed licence area are such that even non ground disturbing work may cause interference with sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the Act (at 31);
·The area where the proposed licence is located is a ‘site rich area’ (at 32);
·Despite the protections afforded by the Aboriginal Heritage Act, ‘suspected damage as a result of mining activities has already materialised at the Tallering Peak site’, which falls within the native title party’s claim area. The native title party believes in that situation, ‘since it failed to fulfil its duty to protect the sacred site, that the death of several members of the native title party was the result of that failure’ (at 33); and
·The significant sites existing within the proposed licence cannot be adequately protected by the Aboriginal Heritage Act because their locations are unknown to the grantee party (at 34).

s 237(c)

In addressing the issue of major disturbance of land or waters, the contentions state (at 35) that regard should be had to:
·the proximity of the proposed licence to Geraldton and Mullewa, where the majority of the Mullewa Wadjari People live;
·the frequent use of the proposed licence and surrounding areas as travel and hunting grounds by the Mullewa Wadjari community; and
·the existence of unregistered sites in the proposed licence which are unknown to the grantee party.

Considering the Evidence in context of s 237 of the Act

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party has not submitted any contentions in these proceedings. The Government party note (at 15) that the grantee party has provided DMP with a Statement of Proposed Exploration Activities and work program for the first year of the proposed licence, but this was not provided in the materials submitted to this Inquiry. The Government party states that these documents indicate the grantee party will not exercise the full suite of rights conferred by s 66 of the Mining Act. Rather, the grantee party’s work will be: gathering of past exploration results and review of past explorations; review of photographs and images; field investigations; acquisition of geophysical data and the identification of targets; geological trips to enable field mapping; and rock chipping and drilling on promising targets. However, in the absence of the Statement of Proposed Exploration Activities or the work program, I am hesitant to draw any firm conclusions in relation to the likely activities of the grantee party on the basis of those statements by the Government party. Instead, I will assume that the grantee party will exercise the full suite of rights available to it. Where a party wishes the Tribunal to have regard to a particular set of circumstances, it is always preferable to provide documents in support of those.
I also note that at the first preliminary conference on 15 January 2013, the grantee party stated it had offered to execute an RSHA, but this had been rejected (see [6] above). Government party contentions refer to the offer of the grantee party to enter into an RSHA with the other overlapping claim to this proposed licence (the Wajarri Yamatji) as well as to the 'execution of a statutory declaration declaring this intention' (at 19) but once again, this documentation does not appear to have been provided for the purpose of this Inquiry. No documentation was provided by DMP or the grantee party in relation to the RSHA offer, and Government party submissions (as also referred to later in this determination) refer to this being an ‘RSHA-type’ agreement (at 41(a)), as well as referring to it as being an 'RSHA agreement' (at 19-20, for example). As such, I am cautious in drawing any conclusions regarding this RSHA or RSHA-type agreement and any protections it could afford in relation to s 237. In addition, the Government party is silent as to whether it has offered to impose an RSHA condition on the grant of the proposed licence.
The native title party’s contentions directed at s 237(a) (at 9-22), describe the primary community and social activity as ‘hunting weekends’, which include foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children. The content of these contentions are outlined in detail above at [26]-[31]. The Government party state in its contentions (at 24) that the native title party’s statements are not evidence but assertions, unsupported by any affidavit evidence or similar, and should not be relied on by the Tribunal. I accept, on the basis of the native title party’s contentions, that the ‘hunting weekends’ and other activities occur within the native title party’s claim area, including in the area of the proposed licence, and I note direct evidence has been provided in other matters for this native title group (for example, West Peak Iron). However, that direct evidence is not of much assistance as that licence is some distance away from the proposed licence in the present matter. As noted above, direct evidence or evidence in the form of contemporaneous documentation is always preferable to unsupported assertions.
The native title party states (at 22) there is a risk the activities mentioned will be directly interfered with if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed licence. As noted above, in this matter I have assumed that the grantee party could exercise the full suite of rights conferred by s 66 of the Mining Act, in the absence of any assertion from the grantee party to the contrary, and in the absence of any supporting documentary evidence to the contrary.
To the extent the Tribunal accepts the evidence demonstrates that members of the native title party carry out community and social activities, the Government party submits there is not likely to be direct interference because, in summary:
·The grantee party has indicated its willingness (at 41(a)) to enter into an 'RSHA type agreement' with the Wajarri Yamatji native title claimants (which also overlaps this proposed licence) and was also ‘willing to enter into a similar agreement with the Native Title Party’, (as noted above);
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and these activities have affected and continue to affect the extent to which community and social activities can be carried out in the relevant area (at 41(b));
·The proposed licence is almost completely covered by pastoral and historical leases, so the native title party’s carrying on of community and social activities has been subject to, or co-existent with, all of these lawful activities for a significant period of time. Interests in relation to the right to control use of and access to the relevant land are likely to have been extinguished (if native title had not been previously extinguished) (at 41(c));
·There are no Aboriginal communities within the area of the proposed licence (at 41(d));
·The low-scale and infrequent exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon hunting or travelling in the proposed licence, particularly given the intentions of the grantee party to conduct those activities with cultural sensitivity (at 41(e));
·Hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting (at 41(f));
·It is difficult to envisage how mineral exploration activity could cause substantive interference to the native title party’s ability to access or travel across the area of the proposed licence (at 41(g)).
As stated above, the information provided about the RSHA is limited as there is nothing from the grantee party or DMP documenting the RSHA offer, when it was made and to which claim group it was made to – for example, the Government party states the grantee party indicated its willingness to enter into an ‘RSHA-type agreement’ with the Wajarri Yamatji native title claimants on the basis that it overlapped this proposed licence – however, that overlap was a tiny proportion of the area (0.02 per cent), and I have not been provided with any information about what an ‘RSHA-type agreement’ is. The Government party states the grantee party was also willing 'to enter into a similar agreement with the Native Title Party’ (at 19), which seems to indicate there would be two RSHA’s (or RSHA-type) agreements operating on this proposed licence, should they be accepted by the respective native title claim groups. Again, without further information, little can be concluded on this point.
Finally, actual mining activity appears to be limited, as the more recent activity has been exploration licences, and any mining licences were granted and suspended in the early 1970’s. Overall, this information is not clear enough to be of great assistance in drawing my conclusions as to the intentions of the grantee party.
In reaching a conclusion in relation to s 237(a) of the Act, I have taken into account the mitigating factors outlined by the Government party (at [39] above), particularly that present pastoral activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party. That is, the carrying on of the community and social activities described in the native title party’s contentions is currently subject to the lawful activities of pastoralists in the area of the proposed licence. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the grant of previous exploration permits, and particularly pastoral leases, will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
In addition, the total area of the Mullewa Wadjari claim is approximately 35,621 square kilometres. The grantee party’s proposed activities within the proposed licence area in the context of the size of the native title claim makes it less likely that exploration activity, even should that activity be to the full extent allowed under the grant, will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I conclude that there would not likely to be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine 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 overlap between the claim and the proposed licence area. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party contentions directed at s 237(b) of the Act, as outlined in detail at [31] above, include the assertion that the proposed licence is ‘site rich’ (at 32). In summary, these contentions refer to a ‘strong cultural connection’ to: Wolla Wolla Hill (located approximately five kilometre to the west of the proposed licence); the Murchison River and its surrounding bodies of water (particularly in relation to the dreamtime stories and beliefs relating to the Bimbara spirit snake); three wells (including ‘Bona Well’ and the ‘Division Well’ and one not named); and the fifteen kilometre stretch of land between Carlaminda and Badja station (located to the north and south of the proposed tenement respectively) due to the high prevalence of caves in the area and potential artefact scatter.
I note that the Murchison River area is important to the native title party but it is some 85km north of this proposed licence, so I cannot agree with the native title party that there is a close proximity between these two areas. And in relation to three wells: Division Well is outside the licence by some 15-20km; Bona Well exists within the proposed licence - the grantee party is now on notice of that area; and it is not clear where the unnamed well is located.
The native title party argue (at 31) that if the grantee party is granted the legal right to carry out exploration activities in the tenement area without negotiation and consultation with the native title party, there is a real risk of interference with significant sites in the area, as well as damage to items left behind by ancestors of the native title party. It states that the nature of some sites within the tenement area are such that even non ground disturbing work may cause interference with the sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the NTA.
The Government party contentions state (at 22) that to the extent members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the relevant regulatory regime. Rather, the evidence must demonstrate that the particular grantee, undertaking the particular act, will not comply with a regulatory regime (at 23). I agree with the Government party contentions (at 16) that there is no evidence to suggest that the grantee party will act in breach of the relevant statute law, regulations or conditions imposed upon it.
The Government party submits in its contentions (at 51) that the native title party’s belief their ancestors relied upon the wells located within the tenement as important sources of water is not determinative of whether or not the site is a ‘site of particular significance’, nor is there sufficient evidence to demonstrate that it has such significance. In relation to the ‘significant’ stretch of land between Carlaminda and Badja Station on which the native title party assert there may be artefact scatter, the Government party similarly contends (at 52) that there is insufficient evidence to demonstrate that stretch of land is a ‘site of particular significance’. The Government party also outlines (at 53) that Wolla Wolla Hill and parts of the ‘significant’ stretch of land lie some distance outside the proposed licence.
I note and accept the native title party assertion that there is a strong cultural connection to Wolla Wolla Hill, but note this area is outside proposed licence. Similarly, the 15km between Carlaminda and Badja are at least 10km to the east of the proposed licence.
In relation to the native title party’s assertion that the proposed tenement is ‘site rich’, I agree with the Government party that this term is of little assistance to the Tribunal in this particular matter (at 55). Rather, the Tribunal’s use of the term reflects an evidentiary conclusion about the existence of sites or areas of particular significance and the likelihood of interference (see for example Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 at [43]; Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 at [55]). As such, it is not sufficient for a native title party to simply assert that an area is ‘site rich’: Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [18]. It may be the case that the distribution of and relationship between significant sites within a given area is such that it may be regarded as an area of particular significance: see for example Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 at [39]. However, that is a matter to be established by evidence.
The Government party response states that in the event of there being any areas or sites of significance within the proposed tenement, interference with those areas is not likely for the following reasons:
·There is no evidence that the sites referred to at paragraphs 24-29 of the native title party’s contentions (outlined at [31] above) extend into the area of the proposed licence (at 57(a));
·To the extent that the three wells are ‘sites of particular significance’, the grantee party is aware of the existence of these sites and of its legal obligations in respect of these sites, and has offered to enter into the RSHA to avoid interfering with such sites (at 57(b));
·The concerns expressed about damage to significant sites, such as places where ancestors have lived or carried out ceremonies, reflect an overestimate of the activities of the grantee party in the event the proposed licence is granted. The general assertion that any level of ground-disturbing activity will disturb the significant sites is insufficient to disapply the expedited procedure (at 57(c));
·Evidence about concerns regarding disturbances to areas where ancestors have camped and conducted ceremonies reflects a general spiritual concern to which s 237(b) does not apply (at 57(d));
·The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and is largely covered by pastoral and historical leases, so the activities contemplated by the grantee party would be the same or not more significant than the previous use of the area (at 57(e)); and
·Pursuant to the Aboriginal Heritage Act 1972 (‘AHA’), any ‘Aboriginal site’ (as defined in s 5 AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case is likely to involve the native title party) (at 57(f)).
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]). I accept the native title party’s evidence that there is a likelihood of sites significant to the native title party existing within the proposed tenement area. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or that there will be a likelihood of interference, given that the grantee party are now on notice of the native title party concerns in respect of the wells, for example, and that the grantee party has indicated it would execute an RSHA with the native title party (even when it appears the Government party has not explicitly noted this as a condition on grant of this proposed licence).

The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. For the sites said to be located on or near the proposed licence, I consider the native title party submissions indicate there are areas of significance, but does not demonstrate ‘particular’ significance for the purposes of s 237(b) of the Act. I am satisfied that the AHA and its associated processes, and the endorsements and conditions to be placed on the proposed tenement, and the grantee party's intention of executing an RSHA with this native title party, are likely to prevent interference with any area or site of ‘particular significance’.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.

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

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contentions directed at s 237(c) of the Act (at 35) are that the Tribunal should have regard to the proximity of the proposed tenement to Geraldton and Mullewa, where the majority of the native title party live, the frequent use of the tenement and surrounding areas as travel and hunting grounds by the native title party, and the existence of unregistered sites in the tenement area which are unknown to the grantee party.
The Government party contentions state that the grant of the proposed tenement is not likely to involve major disturbance relevant to s 237(c) of the Act because:
·The grantee party has stated that most of the proposed exploration activities will be low-impact (at 65(a));
·The exercise of rights conferred by the exploration licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment (at 65(b));
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration (at 65(c));
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and it is almost completely covered by pastoral and historical leases, so the activities contemplated by the grantee party would be the same as, or no more significant than, previous and continuing use of the area (at 65(d)); and
·It does not appear that the area of the proposed tenement has any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters (at 65(e)).
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
·Over 90 per cent of the proposed licence area is covered by pastoral leases where disturbance has already and will continue to be carried out;
·The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
·There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that the grantee’s exploration activities would result in major disturbance to land or waters; and
·There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E59/1816 to Top Iron Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
11 June 2013