Les Tullock and Others on behalf of Tarlpa v Puck Resources Pty Ltd/Western Australia - [2014] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Les Tullock and Others on behalf of Tarlpa v Puck Resources Pty Ltd/Western Australia [2014] NNTTA 33 (26 March 2014)

Application No: WO2012/1364

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

Les Tullock and Others on behalf of Tarlpa (WC2007/003) (native title party)

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The State of Western Australia (Government party)

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Puck Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  26 March 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – 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 - expedited procedure attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 151, 155, 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA)

Cases:Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd (2011) 257 FLR 320; [2011] NNTTA 22, (‘Tullock v Western Australia’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Wiluna Exploration Pty Ltd; WF (Deceased) and Others on behalf of Wiluna/Western Australia/Wiluna Exploration Pty Ltd [2013] NNTTA 169, (‘Tullock v Wiluna Exploration Pty Ltd’)
Leone Velickovic and Others/Western Australia/Royce William Allen [2000] NNTTA 347, (‘Velickovic v Allen’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith v Western Australia’)
Violet Drury and Others on behalf of the Nanda People/Western Australia/Giralia Resources NL [2001] NNTTA 38, (‘Drury v Giralia Resources NL’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8, ('Yindjibarndi v FMG')

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

Native Title Parties:

Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government Party: Mr Matthew Smith, Department of Mines & Petroleum

Representatives of the Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd
Grantee Party:

REASONS FOR DETERMINATION

On 22 August 2012, 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 exploration licence E53/1695 (‘the proposed licence’) to Puck Resources 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).
The Tarlpa native title claim (WC2007/003 – registered since 30 April 2008) overlaps the proposed licence by 73.65 per cent. The Tjiwarl native title claim (WC2011/007) overlaps the proposed licence by 26.35 per cent.
According to the notice:
·the proposed licence is approximately 18.3 square kilometres in size;
·the proposed licence is located 58 kilometres southwest of Wiluna, in the Shire of Wiluna; and
·native title claimants (as outlined at [2] above) had until 22 December 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 21 December 2012, objection applications were lodged with the National Native Title Tribunal (‘the Tribunal’) by Les Tullock and others on behalf of the Tarlpa Native Title Claimants (the native title party), and Keith Narrier and others on behalf of the Tjiwarl Native Title Claimants, respectively. The Tjiwarl objection was withdrawn on 11 September 2013.
A conditional determination was made in the Federal Court by McKerracher J on 29 July 2013, which included areas claimed by the native title party. It will become effective once the court makes a determination as to the prescribed body corporate for the determination area. The majority of the proposed licence within the native title party’s claim area falls within the area where the Federal Court has made a conditional determination that non-exclusive native title does exist. I note that the native title party are yet to nominate a prescribed body corporate as at the date of this decision, and so the persons whose names appear on the Register of Native Title Claims as the applicant for the Tarlpa native title claim group remain the native title party for the purposes of future acts under the Act, until a prescribed body corporate is registered.
A preliminary conference was held on 12 February 2013, and parties indicated their preference to try to negotiate an agreement. In accordance with Tribunal procedure, the native title party and the grantee party were given a period in which to attempt to negotiate and finalise an agreement which could lead to disposal of the objection by consent, after which time the matter would be referred to inquiry should they not be able to finalise an agreement.
A status conference was convened on 12 June 2013, at which time the native title party and the grantee party advised that they had been unable to finalise an agreement. The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. The Tribunal varied directions at parties’ request on three occasions to allow additional time for parties to provide their contentions and evidence.
Parties provided their contentions and evidence on the following dates:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government Party on 19 August 2013;
·the native title parties provided a statement of contentions on 10 September 2013 together with the affidavit of Mr Frankie Wongawol sworn 29 August 2013 and s 155 non disclosure orders were made on 17 September 2013 in relation to paragraphs [8] – [16] of Mr Wongawol’s affidavit;
·the grantee party provided a statement of contentions and supporting documents on 16 September 2013;
·the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions on 1 October 2013 in response to the contentions of the native title party; and
·the native title party provided a reply to the grantee party and Government party contentions on 16 October 2013.
I note that the contentions and evidence provided by the parties relate to three objection applications lodged with the Tribunal – WO2012/1321, WO2012/1322 and the current matter. WO2012/1321 and WO2012/1322 relate to exploration licences E53/1690 and E53/1693 respectively, both applied for by the grantee party. It appears that the objection applications in WO2012/1321 and WO2012/1322 were lodged by W.F. (deceased) and others on behalf of the Wiluna native title claimants (WC1994/024) on 7 December 2012. In their contentions and evidence the native title party addressed all three objection applications in a somewhat collective manner and the contentions did not address the proposed licences individually. Following the withdrawal of the objection applications in WO2012/1321 and WO2012/1322 I was required to attempt to discern what parts of the native title party’s contentions and evidence related to the proposed licence, as opposed to those tenements which had been withdrawn. This was somewhat complicated by the fact that the native title party’s evidence addressed each of the tenements individually but the evidence for each tenement did not distinctly address all three aspects of s 237 of the Act. The evidence for the tenements the subject of WO2012/1321 and WO2012/1322 only seemed to address s 237(b), while the evidence for the proposed licence only appeared to address s 237(a).
The native title party contentions and reply state it would not be pursuing a determination in respect of s 237(b) and s 237(c) of the Act. As such, I will be considering information and evidence relating to s 237(a) only in this determination. This also makes it simpler to analyse the contentions and evidence of the native title party in light of the difficulties I outlined at [9].
On 19 December 2013, I was appointed as the Member for the purpose of determination of these inquiries. On 13 January 2014, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination. Following a query by the grantee party, the Tribunal confirmed the map indicated Department of Aboriginal Affairs (‘DAA’) recorded ‘other heritage places’ which existed on the proposed licence. No party had an objection to the map being relied upon. 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.

Legal principles

Section 237(a) 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
....
In relation to the legal principles to be applied in this matter, I adopt the principles outlined by President Webb in Yindjibarndi v FMG at [15]-[16].

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 area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (now known as the Department of Aboriginal Affairs (‘DAA’)); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
I note the underlying land tenure of the proposed licence to comprise the Lake Way pastoral lease (3114/1164) at 100 per cent.
There is currently one pending exploration licence overlapping the proposed licence by 100 per cent, one miscellaneous licence overlapping by 0.7 per cent and three mining leases overlapping by between 1.5 per cent and 9.9 per cent. There are also a number of dead tenements affected, including: eight exploration licences in operation between 1983 and 2012 (which overlapped the proposed licence by between 2.5 per cent and 100 per cent); seven gold mining leases in operation between 1901 and 1905 (which overlapped by between 0.1 per cent and 0.5 per cent); one previously granted mining lease in operation between 1988 and 1990 (which overlapped by 18.8 per cent); twenty four mineral claims in operation between 1968 and 1983 (which overlapped by between less than 0.1 per cent and 6.6 per cent); ten prospecting licences in operation between 1992 and 2011 (which overlapped by between 0.1 per cent and 1.4 per cent); and two temporary reserves in operation between 1958 and 1972 (which both overlapped by 100 per cent).
The quick appraisal documents show the services affected in relation to this proposed licence are: one prospect/undeveloped drill hole (Kingston-Enterprise); three minor roads; nine tracks; one fence line; and 41 non-perennial watercourses.
The DAA Register shows there are no aboriginal sites recorded on the proposed licence.
The draft Endorsement and Conditions Extract for the proposed licence indicates the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Western Australia at [11]). The following additional conditions will 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 rights of ingress to and egress from Miscellaneous Licence 53/90 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
8.No excavation, excepting shafts, approaching closer to the Goldfields Highway, Highway verge or the road reserve than a distance to equal to twice the depth of the excavation and mining on the Goldfields Highway or Highway verge being confined 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.
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 attention is drawn to the provisions of the:
·      Waterways 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
4.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.
5.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:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or alteration of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW is 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:
8.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 also states it intends to impose on the proposed licence a condition that the grantee party must execute the Regional Standard Heritage Agreement (‘RSHA’) endorsed by peak industry groups in favour of the native title party, if so requested by the native title party in writing within 90 days of the grant of the tenement (at 20).

Grantee Party

The grantee party draws attention to the fact that the proposed licence is overlapped by three current mining leases, which means that only those portions of the proposed licence not intersected by those mining leases will be available for grant at this time (at 2–3). I note from the map provided by the grantee party this excludes a large amount of the area of the proposed licence that lies within the Tjiwarl people’s claim area, but does not affect the area of the proposed licence that lies within the native title party’s determined area.
The grantee party contentions state they have offered an RSHA to the native title party, which was not accepted, but the grantee party is still willing to enter into an RSHA with the native title party (at 4–5, 21). The grantee party outlines it is aware that there may be sites of particular significance on the proposed licence that are not recorded on the DAA Register (at 20). Their contentions also note the grantee party has never been prosecuted under the AHA or accused of breaching the AHA (at 10), and the grantee’s behaviours and attitude to heritage protection minimises the likelihood of interference with sites of particular significance (at 12–14). The grantee party affirms (at 38) its commitment to complying with the AHA.
Noted in the contentions is: there are no Aboriginal communities on the proposed licence, and the grantee party estimates it is located at least 43 kilometres south east of the town of Wiluna (at 15) (I note that DMP documentation confirms it is 58 kilometres south west of Wiluna). The grantee party also notes the proposed licence is located in an area over which the native title party was determined not to have exclusive possession (at 16) (see also [5] above).
The contentions note the proposed licence has been historically affected by many mineral tenements and is overlapped completely by the Lake Way pastoral lease (3114/1164), so the community or social activities of the native title party are likely to already be subject to, or coexisting with, the activities of the Lake Way pastoral lease holders (at 47–48).
The grantee party contentions state it has applied for an exploration licence, which limits its activities to those allowed under the Mining Act 1978 (WA) (at 40), and that its activities will include the following (at 41):
·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.
The grantee party goes on to say that any ground disturbing work will be broad based and only considered to be of minor disturbance (at 41) and that the grantee party will comply with all legislative, RSHA and licence requirements to ensure no interference with community and social activities, sites of particular significance or major disturbance to land and waters (at 45, 50 and 52).
The grantee party takes issue with the lack of specificity in evidence provided by the native title party. The grantee party argues (at 56) that no substantive evidence has been provided to support the native title party’s assertion that the grant of the proposed licence will interfere with the native title party carrying on its social or community activities.

Native title party

In regard to s 237(a), the native title party contends the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title party in relation to the land concerned because:
·the Native Title Act should be beneficially construed (at 2.2–2.3);
·evidence of regular travelling, camping and hunting for various traditional activities is sufficient to sustain an objection under section 237(a) (at 3.9) and they cite a number of decisions in support of this (for example, Velickovic v Allen and Drury vGiralia Resources NL).
·off-site activities can be taken into account in consideration of interference with the carrying on of community or social activities if there is a clear nexus between those activities and the issue being considered (at 3.10); and
·there is a community in the area and point to the native title party’s registered claim (now conditionally determined) (at 3.11–3.12). Tribunal mapping does not identify any particular community specifically on or near the proposed license, and the native title party contends the notion of community should be construed broadly.

In relation to the matter of Velickovic v Allen, Deputy President Franklyn QC acknowledged 'extensive' evidence from the native title party in relation to social and community activities on the proposed licence, and there were no contentions from the grantee party. As such, that matter can be distinguished from the present matter, where it could not be said the native title party had provided 'extensive' evidence in relation to social and community activities, and where the grantee party has provided contentions in some detail. Similarly, in Drury vGiralia Resources NL, there was no evidence from the grantee party. In that matter, it was determined some 12 years ago, and there is little guidance in the decision about the nature and extent of the evidence provided by the native title party. It appears that there was evidence about the social and community activities undertaken on the relevant area, but that it was uncontested by the Government or grantee parties. In the present matter, the evidence of the native title party has not been challenged by the Government and grantee parties but the weight that should be given to it due to its lack of detail has been brought into issue by the grantee party, and so I must weigh up the evidence provided, and the challenges to it, in making my decision.
Mr Wongawol states he is a traditional owner for the Wiluna and Tarlpa claim areas and that as a senior initiated man he can speak for the area covered by the proposed licence as he has the cultural authority for that area. I accept Mr Wongawol has the authority to speak for this area on behalf of the native title party.
The native title party’s representative submitted to the Tribunal that paragraphs 8 to 16 of Mr Wongawol’s affidavit (‘the sensitive paragraphs’) contain culturally sensitive evidence that should be restricted to females only, and requested that the Tribunal issue directions pursuant to s 155 of the Act to restrict the sensitive paragraphs to female members, representatives and staff of the Tribunal, the grantee party and the Government party. No party took issue with this request and on 17 September 2013 President Webb issued the confidentiality directions requested by the native title party.
I note that the sensitive paragraphs give evidence in relation to the current matter, as well as for E53/1690 and E53/1693. In relation to the latter two tenements, the applications for grant have since been withdrawn by the grantee party (see [9] earlier in this decision). In addition, I note the native title party has abandoned its objections under s 237(b) and s 237(c) of the Act in this matter (at 1.8 of the native title party’s Reply and at 1.4 of the native title party’s contentions, respectively).
The native title party’s contentions refer to Mr Wongawol’s affidavit and specifically that:
·the proposed licence area is within, or in close proximity to, the town of Wiluna and Bondini Aboriginal Community Reserve where many native title holders reside (at 3.12(a); Mr Wongawol’s affidavit at 4). [I note, however, that Bondini Aboriginal Community Reserve, and the town of Wiluna are approximately 45 and 58 kilometres from the proposed licence, respectively];
·the native title party carries on community and social activities in the area of the proposed licence, including frequent travel, hunting (for kangaroo, goanna and emu) and camping (at 3.13(a)-(c); Mr Wongawol’s affidavit at 17-20, 22, 23); and
·activities of the grantee party will interfere with the ability of the native title party to conduct community and social activities within the proposed licence area, including hunting and camping, and intergenerational knowledge transfer (at 3.14(a)-(d); Mr Wongawol’s affidavit at 19 - 23).
The native title party’s reply reiterated its objections to the grant of the proposed licence and confirmed that the RSHA is not endorsed by the native title party. They also reiterated the close proximity of the township of Wiluna to the proposed licence and as such contended that it forms part of the community for the purposes of s 237(a). The reply contends that registration of a site on the DAA system is not determinative as to whether it is a site of particular significance (although this argument appears to go more to consideration of s 237(b) than s 237(a)). Because the reply provided in this current matter were also amalgamated with the reply in other matters (as noted at [9] below) it is somewhat difficult to tease out the precise contentions which relate to E53/1695, and some of it clearly relates only to the two other tenements (for example a variety of contentions in reply regarding a specific jukurrpa).

Considering the Evidence

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 parties (in the sense of there being a real risk of interference), (see Smith v Western Australia 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 v Western Australia 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 v Western Australia 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 v Northern Territory at [29]-[30], Deputy President 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.
In addition, the level of interference with community and social activities must be substantial rather than trivial (see President Webb (at [16]) in Yindjibarndi v FMG). The grantee party’s intended activities and intentions are outlined at [22]–[28] above, and the Government party contentions and information is outlined at [14]-[21] above.
The native title parties’ contentions and evidence in relation to s 237(a) are outlined at [29] and [34]-[35] above. As previously noted, an affidavit was submitted from Mr Wongawol. Mr Wongawol indicated he was shown a map of the land affected by various tenement applications which includes E53/1695 (at 4).
In Mr Wongawol’s affidavit, he states that ‘I know that tenement area E53/1695 really well. There is the old road to Leonora there and the Lake Way homestead is really close. I go out on that country all the time with my swag and hunt and camp and have a feed’ (at 17). He states he goes out hunting and camping in the tenement (at 17–18), and that he takes his family out there as well, including to show them how to hunt and cook the catch in the traditional way as he is an elder (at 19). Mr Wongawol states that he was speared once because he did not look after the country properly (at 7).
Mr Wongawol also states ‘I always see the Wiluna mob out there, all around the country near the town of Wiluna. We have a big mob out there and we like to go hunting and camping near town’ (at 23). It appears the inference is that because the proposed licence is relatively close to Wiluna, then members of the native title party who live in Wiluna access the proposed licence (as well as other areas around Wiluna) for the purposes of hunting and camping. Mr Wongawol also attests that the Lake Way station owner permits the native title party’s hunting and camping on the proposed licence, which lies on the Lake Way pastoral lease, as the native title party members notify the station owner of when they are hunting and camping on the pastoral lease land (at 20).
From the evidence in Mr Wongawol’s affidavit, the Government party accepts that the native title party does carry out the community and social activities on the proposed licence as Mr Wongawol has attested (at 63), but that there is not likely to be direct interference with those activities for the following reasons:
·the grantee party’s activities are low-impact and non-intrusive, and any ground disturbing activities are intended to be conducted in a way that will not adversely impact any heritage sites and will respect the native title party’s cultural concerns (at 64(a));
·the grantee party’s willingness to enter into an RSHA indicates willingness to consult with the native title party and avoid activities that are likely to interfere with the activities of the native title party (at 64(b));
·the mining and mineral exploration history of the proposed licence is likely to have affected, and continue to affect the extent to which community and social activities can be carried out in the area of the proposed licence (at 64(c));
·the carrying on of community and social activities has been subject to, or co-existent with, the extensive mining and pastoral activities on the proposed licence historically, and any interference caused by the grant of the proposed licence will only be of the same level or less than the previous and current uses that have already impacted upon those activities (at 64(d));
·there are no Aboriginal communities in the area of the proposed licence (at 64(e));
·the proposed activities of the grantee party are low-scale and infrequent, so are unlikely to have any real disruptive effect on those activities outlined by the native title party, particularly as the grantee party has signalled an intention to carry out their activities with cultural sensitivity and maintain good relations with the native title party (at 64(f)); and
·while there is a small possibility that the grantee party could inadvertently intrude on any law ceremonies that may be conducted on the proposed licence by the native title party, communication of the dates and locations of such ceremonies between the parties would ensure such interference does not occur (at 64(g)).
As outlined earlier, I do give weight to the information in Mr Wongawol’s affidavit, however, the fact that it is largely generalised information in relation to the proposed license means that the information does not greatly assist me in drawing conclusions about the likelihood of interference in relation to s 237(a) of the Act. I accept that the native title party traverses the area of the proposed license and this signifies to me that rather than disbelieve that the native title party does these activities in such a widespread manner, I believe that they do such activities in a widespread manner (particularly given the relatively close proximity of the proposed license to Wiluna, where members of the native title party are said to live). However, this means that the likelihood of interference with native title party activities by grantee party activities is going to be unlikely. I agree with the Government party (at 63) that it is clear the community and social activities referred to in Mr Wongawol’s affidavit do occur on the proposed license area (for example, hunting and bush tucker collecting), but that these activities are not outlined as being so intensive that any activities of the grantee party would lead to interference with them as per s 237(a) of the Act.
I agree with the Government party (at 64) that to the extent the evidence demonstrates members of the native title parties carry out any community or social activities in the area of the proposed licence, there is not likely to be direct interference with those activities for the following reasons:
·the proposed licence area has been subject to prior mineral exploration and possibly mining activity, which are likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area;
·although the proposed licence is near to Wiluna, there are no Aboriginal communities in the proposed licence;
·the low-scale exploration activities planned by the grantee party do not appear likely to have any disruptive effect upon the hunting and gathering of bush tucker in the proposed licence area;
·hunting and mineral exploration activity are by their nature inherently capable of coexistence; and
·the grantee party has indicated a willingness to enter into an RSHA agreement with the native title party, and the native title party has the opportunity of formally enforcing this expression of intention by the grantee party by invoking the proposed RSHA condition which the Government party intends to place on the proposed licence.
I do note Mr Wongawol states (at 20) that the pastoralist for the Lake Way lease 'doesn’t have a problem with letting us hunt and camp out there near his station. We let him know when we are going to be out there hunting and camping and he doesn’t mind'. This is evidence is corroborated by similar evidence given in Tullock v Wiluna Exploration Pty Ltd and by further contentions in the native title reply in the present matter. This suggests that the pastoral activity on the proposed license has not significantly affected community or social activities of the native title parties. However, the extensive previous history of underlying exploration and mining tenure, and the general principle that, unless displaced, hunting and collecting of bush tucker and other such activities can co-exist with exploration activities, must be given significant weight in this matter.
I also take into account the fact that Mr Wongawol’s affidavit has indicated similar community and social activities take place across a wide area of the native title party’s claim area and so it does not appear there are any particular activities which are performed in a way such that they would be confined to this particular licence, or such that they would be interfered with by the exploration activities of the grantee party on this particular licence. For example, Mr Wongawol’s affidavit states that the country '... is aboriginal land there and people have to understand that we are always out on country, out there in that tenement E53/1695 too, hunting and camping and using our native title ' (at 22).
In the circumstances, taking into account the evidence available and that it is unlikely the activities of the grantee party will have a substantial impact on the activities of the native title party, I conclude there is unlikely to be interference of the kind contemplated by s 237(a) of the Act in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E53/1695 to Puck Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
26 March 2014