Les Tullock and Others on behalf of Tarlpa v Allarrow Pty Ltd - [2011] NNTTA 118

NATIONAL NATIVE TITLE TRIBUNAL

Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118 (28 June 2011)

Application No: WO10/770

IN THE MATTER of the Native Title Act 1993 (Cth)

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

Les Tullock and Others on behalf of Tarlpa – (WC07/3) (native title party)

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The State of Western Australia (Government party)

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Allarrow Pty Ltd (grantee party)

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

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  28 June 2011

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application– whether act is likely to interfere with sites of particular significance –expedited procedure not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 155, 237
Mining Act 1978 (WA), s 48
Mining Regulations 1981 (WA), s 14
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases: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
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
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
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437
Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37

Solicitor for the

native title party: Mr Malcolm O’Dell, Central Desert Native Title Services

Representative of the

native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services

Solicitor for the

Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Representative of the

Government party: Ms Ros Dawson, Department of Mines and Petroleum

Representatives of the Ms Sieu Vong, McMahon Mining Title Services Pty Ltd

grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

On 24 February 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant prospecting licence P53/1527 (‘the proposed tenement’) to Allarrow Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed tenement comprises an area of 181.56 hectares located 33 kilometres south-easterly of Wiluna in the Shire of Wiluna and is 100 per cent within the Tarlpa native title claim (WC07/3 – registered from 30 April 2008). No other native title claims overlap the proposed tenement.
On 15 June 2010, Les Tullock and Others on behalf of the Tarlpa registered native title claimants (‘the native title party’) made an expedited procedure objection application (‘the application’) to the National Native Title Tribunal (‘the Tribunal’) in respect of the proposed tenement.
On 30 June 2010, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry into the application. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date (24 June 2010) for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Between 13 July 2010 and 9 March 2011 a number conferences were held at which parties advised they were attempting to negotiate an agreement and sought a number of extensions to directions. On 17 March 2011 the grantee party advised the parties and the Tribunal via email that it wished to proceed to inquiry and following a request from the native title party, a final amendment to directions was made.
The Government party lodged its contentions and evidence by 8 March 2011. On 18 April 2011 the native title party lodged a Statement of Contentions and the affidavits of William Henry Kruse, Frankie Wongawol and Robert Wongawol. The grantee party lodged its contentions and evidence on 28 April 2011. On 13 May 2011 and with leave from the Tribunal, the native title party lodged a reply to the grantee party’s contentions and the affidavit of Michelle Nicole Alexander. On 20 May 2011, following a request from the native title party and with the agreement of all parties, s 155 non disclosure directions were made with respect to the affidavits of William Henry Kruse, Frankie Wongawol and Robert Wongawol, limiting their disclosure to members of the grantee party, Government party and Tribunal Members and staff.
At the Listing Hearing of 19 May 2011 parties advised that all submissions had been lodged and agreed that the inquiry could be heard ‘on the papers’, that is, without holding a further hearing.
On 26 May 2011, I was appointed as the Member for the purposes of conducting the inquiry into the application.
I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).

Legal principles

Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley and Others v Western Australia and Another (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on licences in Walley (at 453-454 [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [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). I also adopt the findings of DP Sosso in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’).

Evidence in Relation to the Proposed Act

Government party documentation establishes the underlying land tenure of the proposed tenement to be Lake Way Pastoral Lease 3114/1164 with no roads or tracks located within the proposed tenement area. Mapping (including satellite imagery) provided by the Tribunal’s geospatial unit locates the proposed tenement along the western shoreline of Lake Way approximately one kilometre south east of the major tributary of Abercromby creek. The proposed tenement is located within what appears to be the Abercromby Creek system, which comprises a number of tributaries and related soaks. A tributary of Abercromby creek runs through the south western portion of the proposed tenement as do a number of its related soaks. It is clear from satellite imagery mapping that whilst a small portion of the proposed tenement encroaches Lake Way itself, a larger portion is subject to seasonal overflow or “washes”.
There are no Aboriginal communities identified within the proposed tenement area. However, according to mapping prepared by the Tribunal, there are two Aboriginal communities, The Village and Bondini, located some 25 and 32 kilometres north west of the proposed tenement.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party and grantee party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘the AHA’) overlapping the area of the proposed tenement.
According to the Government party Quick Appraisal documentation, eight previously granted tenements overlap the proposed tenement: five mineral claims granted and surrendered or cancelled between 1973 and 1983 overlapping between 8.6 and 42.1 per cent; one exploration licence (E53/313) granted in 1991 and expired in 1999 overlapping at 100 per cent; one miscellaneous licence (L53/84) granted in 1998 and surrendered in 2003 overlapping at 79.7 per cent; and one prospecting licence (P53/1023) granted in 2005 and expired in 2009 overlapping at 100 percent.
The Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates the grant of the proposed tenement be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [11]-[12]) and two further conditions requiring the pastoral lessee to be notified of the grant of the licence and of certain exploration activities (conditions 5-6).
The following draft Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed tenement if breached) are noted:
‘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.’
In the contentions of the Government party (at 5(e)), a further condition (‘the RSHA condition’) will be placed 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 Tarlpa People, the applicants in Federal Court application no. WAD248 of 2007 (WC07/3), such request being sent by pre-paid post to reach the Licensee's address, c/- McMahon Mining Title Services Pty Ltd, PO Box 8638, Perth Business Centre WA 6849 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of the Tarlpa People the Central Desert Regional Standard Heritage Agreement’
Section 48 of the Mining Act sets out what a holder of a prospecting licence is authorised to do.
‘A prospecting licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject —
(a)     to enter and re‑enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of prospecting for minerals in, on or under the land;
(b)     to prospect, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)      to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d)     to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’
The prescribed limit for the purposes of s 48(c) is 500 tonnes: Regulation 14 of the Mining Regulations 1981 (WA).
There is no dispute that the future act encompasses both the grant of the proposed tenement and the activities which may be carried out pursuant to it.
It is also accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely directly to interfere with the carrying on of the native title party’s community or social activities or interfere with areas or sites of particular significance to a native title party. As Member Sosso (now Deputy President) said in Silver (at [30]) following the Federal Court’s decision (French J) in Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19:
‘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. ... [E]vidence of intention ... is logically relevant to the question of likelihood.’

Contentions and evidence provided by the Grantee Party

In its statement of contentions, the grantee party states it is ‘prepared to enter into the RSHA [Regional Standard Heritage Agreement]’ (para 16) and ‘will comply with all legislative requirements including but not limited to the Aboriginal Heritage Act and the Mining Act and all its subsidiary legislation’ (para 17). It also states it has ‘never been prosecuted under the Aboriginal Heritage Act or accused of breaching the Aboriginal Heritage Act’ (para 18).
The grantee party contends that the size of the proposed tenement is small, at 181.56 hectares, and that only a tiny proportion of less than one percent, or 0.332 hectares, encroaches on Lake Way itself (para 22). The grantee party further contends that historically there has been exploration, including drilling, in the area the subject of the proposed tenement, with an expenditure of over $140,000 since 1992 (para 23). The grantee party contends that an exploration licence number 53/313 was held over the same area between 18 December 1991 and 20 August 1999, and a total of in excess of $121,000 of expenditure was spent during the term of the tenement which ‘included drilling activities’ (para 24). Further, another prospecting licence, 53/1023, was held over the same area as the proposed tenement between 26 October 2005 and 25 October 2009, and a total of in excess of $19,000 was spent during the period. The grantee party proceeds then to outline their proposed exploration activities in the area of the proposed tenement. They intend initially to soil sample, broad space hand auger drill and map the area. They then propose to conduct field reconnaissance, geological mapping, surface geophysics, collection of samples for core assays, soil sampling and surveying (paras 26-27).
Where the grantee party proposes to conduct any activities that could be ground disturbing or impact or alter an Aboriginal site, it contends that it will utilise the survey provisions under the RSHA involving ‘Traditional Custodians’, or if those ‘Traditional Custodians’ elect not to conduct the survey, suitably qualified and experienced people will be involved in order to avoid any impact.

Contentions and evidence provided by the native title party

In its statement of contentions the native title party states its objection is in relation to section 237(b) of the Act and that it ‘does not does not seek to pursue its objection in relation to sections 237(a) and (c) of the NTA as originally identified in the Form 4 Objection’ (paras 1.3-1.4).
In support of its statement of contentions the native title party has provided the affidavits of Robert Wongawol sworn 13 April 2011, Frankie Wongawol sworn 15 April 2011 and William Henry Kruse sworn 11 April 2011, subject to s 155 non disclosure directions limiting their disclosure to members of the grantee party, Government party and Tribunal Members and staff (the restricted affidavits). Consequently, the restricted affidavits will not be quoted in this determination.
Mr Robert Wongawol states he is a traditional owner for the area of the proposed tenement and a member of the Tarlpa native title claim. Mr Frankie Wongawol states he is a traditional owner in the Tarlpa native title claim area and boss for the Lake Way Area in which the proposed tenement is located. Their evidence is uncontested and I accept it. I accept they are members of the native title party claim group and have the necessary authority to speak for the area on behalf of the native title party. Mr Kruse states he is an anthropologist for the native title party and none of his affidavit (including his expertise as an anthropologist) is contested by the other parties. I am satisfied that it is appropriate to accept it (Tarlpa at [34]-[37] and cases cited therein).
The native title party contends that the AHA has a different application and effect to the intent of s 237(b) of the NTA. In particular it notes that the definition of areas of particular significance under the NTA is wider than that which would be applicable in relation to those acts which are defined in s 5 and afforded protection by s 17 of the AHA. It notes that the question of the significance of a site is determined by the laws and customs of the native title party in relation to s 237(b) of the NTA, but to the cultural heritage of the State in relation to the AHA (see clause 3.6 and 3.7). The native title party contends that reliance cannot be placed on the AHA to protect all sites or areas of particular significance if there are areas or sites which, while within the terms of s 237(b) of the NTA, do not fall within the AHA. The native title party proceeds to argue that the protection given by s 237(b) of the NTA is greater than the protection offered by s 17 of the AHA in relation to the prevention of destruction or disturbance of Aboriginal sites, including the fact that the capacity of the native title party to prevent interference or destruction is dependent upon a Ministerial discretion (paras 3.9 and 3.10). The native title party claims that, in the circumstances, the AHA and its protective regime will be insufficient to ensure that ‘interference is unlikely to occur taking into account the nature of any site or area’, citing Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 at [34]. In assessing these submissions it must be remembered that the function of the AHA and s 237(b) of the NTA are quite different. The AHA is designed to provide a protective mechanism for all Aboriginal sites except in circumstances where, through processes which ultimately involve Ministerial discretion, a party is exempted from that requirement and given permission to interfere with or destroy a site. The purpose of s 237(b) of the NTA is to identify circumstances in which, because of the risk of interference with sites of particular significance in an area, the provisions of the NTA relating to the right to negotiate need to be applied, rather than exempted as is made possible by the application of the expedited procedure. Exemption does not of itself either make possible or prevent any interference with a site of significance, or any other site. It is not a regulatory provision, but rather identifies a circumstance in which the procedural requirements of the NTA must be complied with to the full.

The native title party makes extensive contentions in relation to the inadequacy of the proposed RSHA (see paras 3.13 to 3.22). It correctly contends that the Tribunal has found, in Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1, that the RSHA features a commitment to cooperate with the protection of Aboriginal Heritage. It is notable that that decision also came to the conclusion that while an RSHA was a factor to be taken into account when the Tribunal undertakes the task required of it by s 237 of the NTA, including the assessment of the likelihood of interference with sites of significance, it is certainly not a determinative one. The native title party proceeds to contend that in this instance the RSHA does not in fact amount to a commitment by the grantee party to cooperate in the ongoing protection of Aboriginal heritage, on the grounds that:
(a)No survey is required in circumstances where the activity is determined by the grantee party to be ‘Non-Ground Disturbing’;
(b)A heritage survey when conducted in relation to ground disturbing activity does not require the consent of the native title party before that activity may be permitted to proceed;
(c)The RSHA does not require the consent of the native title party before a s 18 application might be brought under the AHA by the grantee party;
(d)The definition of non ground disturbing activity is inadequate and could well amount to interference with sites of particular significance; and
(e)The RSHA does not have any protection for sites which might be gender sensitive.
At paras 3.23-3.28 the native title party sets out to particularise its concerns with the grant of the proposed tenement on the basis that such a grant is likely to lead to interference with sites of particular significance. As I understand it, the native title party’s primary argument is that the Lake Way area, which includes the Lake, its shoreline, and associated creeks and soaks, are areas of great significance to the native title party, and the geographical features associated with the Lake and its surrounds are the physical manifestations of the ongoing presence of the Jukurrpa in the area. This is particularly the case in relation to Abercromby Soak and the creek and wash associated with it that flow into Lake Way (see affidavit of Bill Kruse at 16(f)). It appears that the proposed tenement is within the area of Abercromby Soak. More particularly the native title party asserts that a portion of the tenement intrudes into Lake Way, citing the affidavits of Robert Wongawol at para 7 and Frankie Wongawol at para 14, and secondly that the Walawuru Jukurrpa (Eaglehawk Dreaming) crosses directly through the area, citing the affidavits of Robert Wongawol, para 7, Frankie Wongawol, para 16 and William Kruse, para 29.
Further, relying on the restricted evidence of Mr Robert Wongawol, Mr Kruse and Mr Frankie Wongawol, the native title party contends that the Lake Way area is site rich, that at least four different jukurrpa cross the area, and that the area contains ceremonial grounds of great significance to the native title party. At para 3.25 of the native title party’s contentions they observe ‘the fabric of the country on, and immediately adjacent to, the Tenement is imbued with a pervasive spirituality such that any entry onto the relevant land, which has not been agreed with the Native Title Party, would be likely to result in interference within the meaning of paragraph s 237(b)’.
The native title party contends that the RSHA would be inadequate to protect these sites of particular significance because it only countenances heritage surveys being conducted at a ground disturbing stage and that any access to the area the subject of the tenements by the grantee party without the guidance of the native title party is likely to lead to interference with the sites of particular significance which they have identified. Similarly, the RSHA does not accommodate the need for access to information about protecting particular sites within the area which may be gender sensitive.
In its reply to the grantee party’s contentions, the native title party contends the grantee party’s contentions either do not address, completely answer or are not relevant to the question of whether the grant of the proposed tenement is likely to interfere with sites of particular significance within the meaning of s 237(b) of the Act. In summary, it contends that the conditions and endorsements on the proposed tenement, the grantee party’s willingness to execute the RSHA, the terms of the RSHA and the grantee party’s undertaking to comply with existing law will not avoid the likelihood of interference under s 237(b) of the Act.
A further affidavit of Michelle Nicole Alexander was filed by the native title party in response to the grantee party’s contention at para 24 where it was suggested that drilling activities occurred over the area the subject of the proposed tenement, when it was held as exploration licence 53/313. Ms Alexander deposes to the fact that she is employed with Central Desert Native Title Services (‘CDNTS’) as Major Projects Coordinator, and that she is familiar with the general area known as Lake Way. She makes reference to the earlier prospecting licence P53/1023, which operated between 26 October 2005 and 25 October 2009, and indicates that although that tenement was granted prior to the lodgement of the native title claim it subsequently became part of a broader agreement which required consultation and the conduct of heritage surveys before ground disturbing activities could take place, and she confirms that no drilling took place during the life of P53/1023, based on the records held by CDNTS. This explanation does not address the question of whether drilling in fact took place during the life of exploration licence 53/313 in the 1990’s and indeed the grantee party, in discussing prospecting licence 53/1023 at para 25 of its contentions, does not suggest that drilling took place during that later period. It is clear to me from this that while drilling may have occurred in the past, particularly during the life of 53/313, it was done without consultation with the native title party. In the current circumstances the fact that drilling has occurred in the past is not relevant to my consideration which is based on evidence provided by the native title party which is contemporary. It is notable in Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Faustus’) that, where the Tribunal found in that case that the expedited procedure was applicable, the grantee party had gone to considerable lengths to explain precisely how it would consult with the native title party in order to ensure that any difficulties that arose in relation to potential interference with the sites of particular significance that they had identified would be dealt with. In this matter the grantee party has indicated that it intends to comply with the law, enter into an RSHA and has underlined its cognisance of the severe penalties that might be imposed on it should it interfere with any site during the course of its exploration activities.

Section 237(b)

In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (ie more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there are no registered sites within the proposed tenement area, but this does not mean there may not be sites or areas of particular significance to the native title party over the proposed tenement 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 tenement 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 (see 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 Faustus at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Without disclosing the contents of the restricted affidavits, it is clear from the deponent’s statements that the area defined as ‘the Lake Way Area’, which includes the proposed tenement, is an area of particular significance to the native title party and to the wider Martu culture to which it belongs. The Lake Way Area comprises a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to Martu religion. Two of these sites or areas are the Abercromby creek and soak system in which the proposed tenement is located, and Lake Way itself, which includes a surrounding seasonal overflow or “wash” area and encroaches upon the proposed tenement. It is also clear from the careful language used by the deponents that cultural information regarding the Lake Way Area is extremely sensitive and restricted to certain members of the native title party. Under Martu traditional law and custom, those certain members have an enforceable obligation to monitor and control any person’s access to and activities within the Area, and failure to fulfil that obligation, even if they were unable to do so due to circumstances outside of their control, has resulted, and will continue to result in corporal punishment.
In making its predictive assessment the Tribunal must rely upon the evidence presented to it. In this matter the evidence of the native title party, which is uncontested, establishes that there are sites of particular significance in and around the area of the proposed tenement. Notwithstanding the fact that the grantee party has indicated that it will enter into a RSHA and abide, to the letter, the terms of the AHA, that it is fully aware of the severe penalties that may be incurred under the Act and that it has an unblemished record in abiding by the terms of the Act, it is my view that there will still be a likelihood that interference might occur. The reason that this interference might occur is because the RSHA only requires the conduct of surveys in circumstances where ground disturbing activity is taking place. As is clear from the evidence of the native title party, the sites of particular significance to them are, amongst others, a variety of Dreaming tracks associated with the jukurrpa that cross the area both of the proposed tenement and the Lake complex itself. By their very nature, those tracks are not sites which might be readily identifiable by persons other than those instilled in the mysteries of the jukurrpa. Therefore, notwithstanding the best of intentions, inadvertent interference is distinctly possible if the grantee party enters the area without guidance from the native title party. In such circumstances, without the consultation that is afforded by the right to negotiate provisions of the Act, there is a real risk that sites of particular significance to the native title party will be interfered with by the grantee party if the proposed tenement is granted on the terms suggested by the grantee party and the Government party.

Sections 237(a) and 237(c)

The native title party has not adduced any evidence or made any contention that either of these limbs of s 237 are attracted in the particular circumstances of this matter. In any event, on the basis of my finding in relation to s 237(b), it is not necessary for me to further consider those sections.

Determination

The determination of the Tribunal is that the grant of prospecting licence P53/1527 to Allarrow Pty Ltd is not an act attracting the expedited procedure.

Daniel O’Dea
Member
28 June 2011