Marputu Aboriginal Corporation RNTBC v Element 25 Limited & Another - [2020] NNTTA 58

NATIONAL NATIVE TITLE TRIBUNAL

Marputu Aboriginal Corporation RNTBC v Element 25 Limited & Another [2020] NNTTA 58 (28 September 2020)

Application No:

WO2019/1133

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

- and -

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

Marputu Aboriginal Corporation RNTBC (WCD2017/011)

(native title party)

- and -

Element 25 Limited

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	28 September 2020

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 16, 17, 18 Mining Act 1978 (WA) ss 63, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 25, 29, 30A, 31, 32, 237 Rights in Water and Irrigation Act 1914 (WA) ss 5C, 6, 17
Cases:	Andy Campbell v Western Australia [2012] NNTTA 48 Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465 Bull v Attorney General (NSW) (1913) 17 CLR 370; [1913] HCA 60 FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation (2014) 227 FCR 182; [2014] FCA 1335 Kanak v National Native Title Tribunal (1995) 61 FCR 103; [1995] FCA 1624 Kevin Walley v Western Australia [2001] NNTTA 78 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 Little v The State of Western Australia [2001] FCA 1706 Valerie Tambling and Others v N.T. Gold Pty Ltd [2002] NNTTA 209 Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 Western Australia v Ward (1996) 70 FCR 265; [1996] FCA 993
Representative of the native title party:	Felicity Noonan and Patrick Smith, Central Desert Native Title Services

Representative of the grantee party:

Michael Giles, Element 25 Limited

Representatives of the Government party:

Zachary Clifford, State Solicitor’s Office

Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

INTRODUCTION

Pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”), Marputu Aboriginal Corporation RNTBC (the “Native Title Party”) holds native title rights and interests in land and waters on trust for the Gingirana People. The land and waters in question (the “Gingirana determination area”) lie south-east of Newman and north-east of Peak Hill, and in the Meekatharra and Wiluna shire areas.
On 11 April 2019 Element 25 Limited (the “Proposed Grantee”) applied to the Department of Mines, Industry Regulation and Safety of the Government of Western Australia (the “State”) for the grant of exploration licence E52/3706 (the “proposed tenement”) pursuant to the Mining Act 1978 (WA) (the “Mining Act”). On 2 August 2019 the State gave notice (the “notice”) pursuant to s 29(1) of the Native Title Act of its intention to grant (the “proposed grant”) the proposed tenement to the Proposed Grantee. The proposed grant is a “future act” of the kind described in s 25 of the Native Title Act.

THE EXPEDITED PROCEDURE STATEMENT

Subsection 29(7) of the Native Title Act provides as follows:
Acts attracting the expedited procedure
(7) The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.
The notice contained a statement pursuant to that subsection.
Section 237 provides:
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.
For present purposes, only s 237(b) is relevant.
Section 32 of the Native Title Act provides:
Expedited procedure
(1)This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2)If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3)A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4)If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5)If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6)At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7)At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
For the purposes of s 32, the National Native Title Tribunal (the “Tribunal”) is the relevant arbitral body. I am presently performing the function described in s 32(4).

PROPOSED TENEMENT

The proposed tenement is irregular in shape. A map is attached as “Annexure A”. Attached as “Annexure B” is aerial imagery of the area. Both are self-explanatory. The Native Title Party objected to Annexure A, however I see no reason for excluding it. Annexure B was supplied by the Native Title Party. All boundary lines are straight lines, indicating that they do not follow natural physical features. Most of the proposed tenement lies within the boundaries of the Gingirana determination area. However, in the north, it extends into the Nyiyaparli and Nyiyaparli #3 determination area (the “Nyiyaparli determination area”). In the north-west, it extends into the Ngarlawangga People’s determination area (the “Ngarlawangga determination area”). The north-eastern part of the proposed tenement overlaps the area covered by a miscellaneous licence (the “miscellaneous licence”), which licence also overlaps the Gingirana determination area and the Nyiyaparli determination area. A gas pipeline runs from north to south through the proposed tenement, apparently underground. It crosses a creek line in the north of the proposed tenement. The Great Northern Highway runs north-south through the north-west of the proposed tenement also apparently crossing the same creek, or a creek which is connected to it. This creek system is of central importance for present purposes.
There is one “C” Class Reserve, the De Grey Peak Hill Stock Route, which overlaps the proposed tenement to the extent of 25.57%. Two pastoral leases, Bulloo Downs and Kumarina, overlap the proposed tenement to the extent of 15.67% and 57.7% respectively. Eleven previous exploration licences have covered parts of the proposed tenement. Two of them have overlapped the proposed tenement to the extent of more than 50%. The miscellaneous licence is held by the Proposed Grantee and overlaps the proposed tenement to the extent of 15.28%. Existing petroleum/geothermal titles also overlap the proposed tenement, including a PGERA67 Exploration Permit (STP-EPA-0013) which overlaps the proposed tenement to the extent of 96.23%.
The State has indicated that it will impose various endorsements and conditions upon the proposed grant, as set out in a document headed “Draft Tenement Endorsement and Conditions Extract” (the “draft grant”). The State has indicated that it will also impose the following condition:
In respect of the area covered by the licence the licensee, if so requested in writing by the [Native Title Party], such request being sent by pre-paid post to reach the [Proposed Grantee’s] or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the [Native Title Party] any Regional Standard Heritage Agreement ("RSHA") nominated by the [Native Title Party], the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement."
I shall discuss Regional Standard Heritage Agreements (the “RSHAs”) at a later stage.
The proposed grant will be for a period of five years. The rights conferred by the exploration licence appear at s 66 of the Mining Act as follows:
An exploration 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 exploring for minerals in, on or under the land;
(b)to explore, 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.
However the proposed endorsements and conditions will limit some of these rights. Section 63 of the Mining Act prohibits the use of “ground disturbing equipment”, unless the licensee has lodged an appropriate programme of works, which programme has been approved by the Minister. Proposed condition 3 contains a similar limitation upon the use of such equipment.
I note that s 66(c) of the Mining Act, and reg 20 of the Mining Regulations1981 (WA) (the “regulations”) authorize the taking of up to 1000 tonnes of earth, soil, rock, stone, fluid or mineral-bearing substances. Such extraction would, I infer, probably involve ground-breaking equipment. Hence the Proposed Grantee could only take that material if it had received approval to use such equipment.
There are also proposed restrictions on taking water and protecting watercourses. I shall discuss those restrictions at a later stage.
In its application for the proposed tenement, the Proposed Grantee stated that:
The whole area applied for has the potential for manganese and copper potential. This is based on geological reviews of the area using publicly available geological data.
Therefore, manganese and copper will be the primary minerals explored for. It is hoped that exploration will lead to the discovery of an economic resource that can be mined.
The company plans a review of previous results, identification of new targets and following these targets up with geological mapping of the area. Auger Soil sampling will be undertaken over selected areas depending on the depth of soil cover.
The primary objective of is to discover economic mineralisation through low cost effective exploration methods.
The applicant is the holder of a significant manganese resource in the surrounding area and is currently working towards developing this resource. It is hoped that exploration will delineate further resources which will form part of the Butcher Bird manganese mine plan.

The Proposed Grantee has proposed a total planned expenditure of $51,000. Activities will include:
Literature and data review of previous exploration results, aerial photographs and aeromagnetic images
Geological field investigations and mapping, drill cutting samples, rock chip sampling
Auger Soil sampling program [and analysis]
The Proposed Grantee has filed a statement of contentions, which statement succinctly describes both its intentions with respect to the proposed tenement and the Native Title Party’s concerns as follows:
1.The [Proposed Grantee] has applied for [the proposed tenement] to conduct exploration for copper and manganese.
2.The [Proposed Grantee] is an ASX listed company (ASX: E25) focussed on the development of its 100% owned Butcherbird Manganese Project, which is situated about 3kms north of E52/3706.
3.The [Proposed Grantee] will conduct exploration activities for near surface manganese resources to supplement the butcherbird project. It will also conduct copper exploration, for deeper copper mineralisation.
4.Very little previous exploration ground or disturbance activities are recorded in the [proposed tenement], and it remains a conceptual target.
5.In the first few years of grant on-ground exploration will be limited to a 1-2 week ground mapping and a 1-2 week auger sampling program. Ground disturbance during this period would be very minimal. Disturbance would be a 4wd vehicle/s driving through the area drilling shallow auger holes.
6.In the years following the first year, on-ground activities may be conducted which may involve some ground disturbance. Although it is difficult to fully plan exploration at such an early stage, it would be envisaged that this may include drilling programs. This would be undertaken for a period of 3-4 weeks and there may be 1-2 drilling programs per year. It would be expected that all efforts are taken to minimise any ground disturbance.
7.Preferred access to the project will be via the Great North Hwy (sic), which crosses the [proposed] tenement in the south of the tenement and the north of the tenement.
8.The [Proposed Grantee] will abide by the [Aboriginal Heritage Act 1972 (WA)].
9.The [Proposed Grantee] will notify the [Native Title Party] of any on-ground activities before undertaking them.
10.The [Proposed Grantee] will advise the [Native Title Party] of dates they intend to be on-ground.
11.The [Proposed Grantee] will take care when conducting on-ground exploration with respect to the [Native Title Party’s] requests.
12.The [Proposed Grantee] will limit the use of vehicles and heavy machinery where possible and attempt to keep to cleared station tracks.
13.The [Proposed Grantee] will avoid any sites or areas of significance to the [Native Title Party] if they are willing to provide notice and provide an accurate location of such sites.
14.The [Proposed Grantee] will offer and attempt to complete heritage surveys before commencing any ground disturbance activities.
15.The [Proposed Grantee] is willing to enter into a regional standard heritage agreement (RSHA) with the [Native Title Party].
16.The [Proposed Grantee] will (when possible) complete rehabilitation of any disturbances as exploration occurs.
17.The [Proposed Grantee] notes the [Native Title Party] states that Ilgarari Creek is an area of significance to them.
18.The [Proposed Grantee] has no plans to conduct exploration of Ilgarari Creek that is within E52/3706.

THE NOTICE AND NEGOTIATION

It is common ground that by virtue of s 25 of the Native Title Act, the proposed grant is a future act to which Subdivision P of Division 3 of Part 2 (“subdiv P”) of that Act applies. If a s 29 notice does not include a statement pursuant to s 29(7), s 31 requires that “all negotiation parties” negotiate in good faith with a view to obtaining the agreement of interested native title parties to the doing of “the act”, in this case, the grant of the proposed tenement. Pursuant to s 30A, the negotiation parties, for present purposes, are the State, the Native Title Party and the Proposed Grantee. If a s 29(7) statement is included in the notice, and if the relevant Native Title Party does not file an objection pursuant to s 32(3) of the Native Title Act, the State may do the future act (that is, grant the proposed tenement) without negotiation. If, as in this case, such an objection is lodged, s 32(4) requires that the Tribunal determine whether the proposed future act attracts the expedited procedure. On 9 December 2019 the Native Title Party lodged with the Tribunal, an objection (the “objection”) against the inclusion of the statement in the notice. I must now determine that objection, as required by s 32(4).

NATIVE TITLE RIGHTS AND INTERESTS

In its consent determination, the Federal Court found that the Gingirana People held the following native title rights and interests:
The nature and extent of native title rights and interests …
3.Subject to orders 6 and 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.
4.Subject to orders 5 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights or interests:
(a)the right to access, remain in and use that part;
(b)the right to access, take and use the resources of that part for any purpose;
(c)the right to engage in spiritual and cultural activities in that part;
(d)the right to maintain and protect places of significance on that part; and
(e)the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert traditional laws and customs.
Qualifications on native title rights and interests ...
5.The native title rights and interests in order 4 do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others.
6.The native title rights and interests are subject to and exercisable in accordance with:
(a)the traditional laws and customs of the native title holders; and
(b)the laws of the State and the Commonwealth, including the common law.
7.Notwithstanding anything in this Determination:
(a)there are no native title rights and interests in the Determination Area in or in relation to:
(i)      minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
(ii)     petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and
(b)the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the date of this Determination is the non-exclusive right to take, use and enjoy that water.

It appears from Sch 6 to the determination (a map of the Gingirana determination area), the Gingirana People only enjoy exclusive native title rights and interests in an area in the east of the determination area, and a small parcel of land near the centre of the determination area. They hold only non-exclusive native title rights and interests over the proposed tenement and surrounding areas.

THE TERMS OF THE OBJECTION

The thrust of the Native Title Party’s case is contained in para 7 of the objection. That paragraph is divided into sub paras (a), (b) and (c), headed respectively:
·   “Statement of the likely impact of the [proposed grant] on community or social activities of the Native Title Holders”;
·   “Statement of the likely impact of the [proposed grant] on sites or areas of particular significance to the Native Title Holders”; and
·   “Statement of the likely impact of the [proposed grant] on land and waters where native title is held by the Native Title Party”.
As I have said, only s 237(b) of the Native Title Act is presently relevant. However, sub para 7(a) (above) seems to relate to s 237(a) (reliance on which has been abandoned). Sub-paragraph 7(b) clearly deals with s 237(b), the declared basis of the Native Title Party’s case. The relevance of para 7(c) is unclear. Although the factual matters asserted in sub para 7(c) may have some relevance to the Native Title Party’s case pursuant to s 237(b), it appears to be primarily directed to the matters identified in s 237(c). However it makes no reference to interference with areas or sites of particular significance in accordance with the native title holders’ traditions.
Subparagraph 7(b) of the objection states:
…
Statement of the likely impact of the grant of the Licence on sites or areas of particular significance to the Native Title Holders
(i)The Native Title Party has not been provided sufficient information from the [State] to enable identification of areas or sites of particular significance that are likely to be interfered with by the proposed [grant], pursuant to section 237(b) of the NTA. Specifically, the [State] has not identified the access routes to be used by the [Proposed Grantee] relative to the proposed [tenement].
(ii)Preliminary research nevertheless shows that Tjukurrpa (Dreaming tracks) pass through areas in the vicinity of [the land subject to the proposed tenement]. Sites and areas associated with such Tjukurrpa tracks are of particular significance to the Native Title Holders.
(iii)The Department of Lands, Planning & Heritage’s Register of Aboriginal Sites records a number of sites within the [proposed tenement], including but not limited to the following registered site:
Site Name               Site ID               Legacy ID
KUMARINA 10994 P01199
(iv)The proposed [grant] is likely to impact and interfere with sites of particular significance as follows:
A.   The [Proposed Grantee] may inadvertently interfere with sites or areas of particular significance by not knowing of their existence;
B.   Permitted land disturbing activities, including the use of mechanised equipment for the purpose of drilling for and extracting ore, may result in the destruction of sites and areas of particular significance, with consequent damage to the Native Title Holders’ spiritual understanding and comprehensions; and
C.   the relevant Minister may permit the interference with sites or areas of particular significant if it is in the public interest; and
(v)The Native Title Holders are part of the larger social entity known as the Western Desert Cultural Bloc. They have responsibility for sites and areas of the Tjukurrpa that have social and cultural relevance beyond the Determination Area. Any damage or disturbance to sites or areas of the Tjurkurrpa would have repercussions for both the Native Title Holders and the integrity of the wider Aboriginal society of which they form part.
…
[emphasis in original]

MR WILLIAMS’ EVIDENCE

Mr Slim Williams resides at the Parnngurr Community in Western Australia. He is a recognised native title holder for the land and waters of the Gingirana determination area. He is also a wati (or law man) and has knowledge of, and responsibility for, the tjukurrpa within Gingirana. Tjukurrpa is said to be the law that the Gingirana native title holders follow. It includes all of the song lines and special places within the Gingirana determination area. As a wati, Mr Williams has authority to speak about the tjukurrpa.
Mr Williams was born in Jigalong and went to school there, in Parnngurr and in Karalundi, before moving back to Parnngurr where he has remained. His father’s country is “out Lake Disappointment way”. Mr Williams’ maternal grandfather was a Putijarra man. His ngurra (country for which he was responsible) was around Katjarra (the Carnarvon Ranges). Mr Williams’ maternal grandmother was a Putijarra woman and, “was one of those girls from the Rabbit Proof Fence story”. Mr Williams says his grandmother helped “grow me up” and, “[s]he was always telling me stories about Putijarra country”.
Mr Williams speaks Martu Wangka, a mix of all of the martu languages. His main martu language is Kartujarra. He also understands Putijarra. It is the main language for Gingirana country.
Mr Williams’ ngurra, “comes from both [his] grandmother and grandfather”. It starts, “around well number 6 or 7 on the Canning Stock Route in Birriliburu country”, then goes “yuparra [west] way, through Katjarra, which is also in Birriliburu”, as far as the Great Northern Highway. In other words, Mr Williams’ ngurra stretches from the Canning Stock Route in the east to the Great Northern Highway in the west. It includes the area of the proposed tenement.
Mr Williams says that there is a “really significant creek” which runs near the northern boundary of the Gingirana determination area. It travels eastward along that boundary. Mr Williams calls it Ilgarari Creek. He says that “[w]hen we were fighting for our native title, some of the old men gave evidence at Ilgarari [C]reek, just to the east of the highway, inside the [proposed tenement]”, and that, “[t]hey gave evidence there because it’s a really important place for Putijarra people.” The “fighting” for native title is presumably a reference to the determination proceedings in the Federal Court, Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465. Mr Williams says that Ilgarari Creek is “really important” because it is part of the dreaming for two separate tjukurrpa, those being the Ngayurnangalku (cannibal) tjukurrpa and the Marlu (plains kangaroo) tjukurrpa. Mr Williams is one of the people who have the tjukurrpa for the Gingirana country. He must look after the country and the tjukurrpa and must, “make sure nobody messes it up”. Holding the tjukurrpa for the Gingirana country and keeping it strong is called “Kanyikurra ngurra”.
The Ngayurnangalku tjukurrpa, is, “a really important tjukurrpa for Putijarra people”. It travels right through the desert. The cannibals are said to travel inside the proposed tenement, following Ilgarari Creek to the east, then travelling north-east to Lake Disappointment. They travel on both sides of the creek, stopping at pools where there is water. Some pools are inside the proposed tenement.
The Marlu tjukurrpa also travels through the proposed tenement, “following Ilgarari … all the way along to those lakes in the east, inside [the] Birriliburu [determination area]”. It is said that the tjukurrpa, “couldn’t keep pushing himself east because there were too much sand dunes, and so he turned back to the hard sand on the west side.” The Marlu tjukurrpa is, “a really important men’s tjukurrpa. It’s not for the ladies to know or talk about, only wati [lawmen]”.
Mr Williams says that, “… the places where the Ngayurnangalku tjukurrpa and Marlu tjukurrpa travel and sit down are all connected.” If you hurt one part of it, “you can hurt the other parts too.” Mr Williams says that it is, “really important for us to look after Ilgarari Creek, all the way along, including inside the [proposed tenement]”, and that, “we’re still looking after that creek today.”
In May 2015 Mr Williams went out with Putijarra men and other senior wati to perform a heritage survey over Yanneri Lake, which lake is located approximately 70 km east of the eastern-most point of the proposed tenement and just within the Gingirana determination area. Mr Williams says that Ilgarari Creek is “connected” to Yanneri Lake. Mr Williams says that it was, “important for us to do a survey for that Yanneri Lake and keep it strong, not just for the lake, but also to protect inside the [proposed tenement] along the creek where the Ngayurnangalku tjukurrpa and Marlu tjukurrpa travel.”
In July 2017 Mr Williams went out to Yanneri Lake again, with another senior wati. They went by helicopter, the site being difficult of access. After they landed at the lake, they asked the helicopter pilot to follow Ilgarari Creek, “to the west so we could check up on it, make sure it hadn’t been damaged by mining companies or other whitefellas.”
Mr Williams says that “[w]e also look after that place by painting it” and:
[t]hat old fella, Yungara, he paints that Ngayurnangalku tjukurrpa. He paints that one because it’s a really important tjukurrpa for Gingirana mob and really important for other mobs in the desert. He paints that one to help mob understand the story. That’s him passing on knowledge, keeping the culture strong.
[emphasis in original]
Mr Williams says that Ilgarari Creek is really important, that, “we don’t want it to be disturbed,” “[w]e want that one to remain” and “[w]e want to keep our tjukurrpa strong.” If the Proposed Grantee went near the creek inside the proposed tenement, without getting permission, and started doing things, “like chipping some of the rocks, or digging up the soil near the creek”, it would be, “bad for the tjukurrpa and bad for the people.” He says that, “we gotta do a survey around that creek, so we can tell them where they can and can’t go.”
It is, perhaps, surprising that it should be necessary that there be a survey before Mr Williams and/or others can relevantly advise the proposed grantee. After all, the area through which the creek flows within the proposed tenement is quite small in area, and the creek is said to be “really important”. Particularly given the prior exploration activity in the area, one might expect that the traditional owners would have knowledge of it.
Mr Williams says that, “[w]e practice (sic) our culture every year at law time and want to keep that place strong for the next generation”, presumably referring to Ilgarari Creek. He says that, “[i]f that company came inside the [proposed tenement] and did stuff, “even that little bit of work” (presumably rock chipping and digging soil near the creek), and Ilgarari Creek, “without our permission, without us telling them where they can and can’t go”, then, “it would mess up that creek and mess up that tjukurrpa”, and, “damage that place”. Because the tjukurrpa is “all joined up”, it could hurt, “the other places too”. If “that site” (presumably Ilgarari Creek) got damaged, “we could get in trouble by those old people who hold that tjukurrpa in other communities.” Mr Williams says that they would definitely get in trouble and that they might get speared.
It is unfortunate that Mr Williams does not explain the basis for his belief concerning the connections between areas and sites, identifying their locations and the nature of the connection.
Mr Williams believes that there are “really powerful demons” associated with the Ngayurnangalku tjukurrpa and that, “those cannibals should not be approached or disturbed”. They are said to make people sick. Those people (presumably the Proposed Grantee’s staff) may die if they, “mess up that creek or the areas around it.” The Marlu tjukurrpa is “just for men”. Mr Williams says that, “… we wouldn’t want women going to certain places in [the proposed tenement], near that creek, it would mess that one up”, presumably referring to the tjukurrpa. Even women from the mining company could not go to such places.

NATIVE TITLE PARTY’S CONTENTIONS

The Native Title Party submits that the proposed grant is likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions, as contemplated by s 237(b).
At para 1.6 of its contentions, the Native Title Party asserts that the Federal Court found that the Gingirana People have exclusive rights to possession, occupation, use and enjoyment over parts of the Gingirana determination area. However, as I have observed, the areas over which the Gingirana People have exclusive rights lie predominantly in the far east of the Gingirana determination area.
Concerning the rights to be conferred upon the Proposed Grantee by the proposed grant, outlined at [13] above, the Native Title Party submits that the Mining Act permits a, “considerable amount of activity that can reasonably be considered as being likely to cause disturbance to an area of land subject to an exploration licence”. Whilst I accept that general proposition, it asserts only a possibility of “considerable” activity causing interference. One must look at the whole of the evidence in order to determine the likelihood or otherwise of such interference and its extent.
At para 4.2 the Native Title Party submits that an investigation into whether the expedited procedure is attracted should be conducted in light of:
(a)[the] requirement to construe the Native Title Act in a beneficial manner to the native title parties: Kanak v National Native Title Tribunal (1995) 61 FCR 103 per Lockhart, Lee and Sackville JJ at [124]; and
(b)[the] overriding imperative of the Native Title Act and the bodies established under it to recognise and protect native title. The preamble to the Native Title Act relevantly provides as follows:
In future, acts that affect native title should only be able to be validly done if, typically, they can be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate.
There is a tendency, in construing the Native Title Act, to use loose language, particularly in connection with subdiv P. That approach tends to suggest, as does the above contention, that there is a general presumption in favour of native title parties. Support for this proposition is said to be found in the preamble to the Native Title Act. It is said that the Act must be construed as a whole, and that provisions such as those in subdiv P and s 237 should reflect the content of the preamble. It is said that and the preamble, and the Act more generally, evidence an intention to protect native title. In other words, the provisions of subdiv P and s 237 should be seen as being remedial or protective. See Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384 and Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638. In the latter case, the majority said:
Section 18 is remedial in character and its language should be construed so as to give the most complete remedy which is consistent "with the actual language employed" and to which its words "are fairly open".
Both cases are cited in Kanak at 124, where the Court observes that the preamble recognizes the, “disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title”. Their Honours did not say that the Act must be construed, “in a manner which is beneficial to the native title parties” as is suggested by the Native Title Party. As in the earlier cases, the emphasis is on a beneficial construction, “so as to give the most complete remedy which is consistent with the actual language employed”. The reference to the actual language employed is important. It reflects the fundamental proposition concerning statutory construction: that the focus must be on the words used in the legislation.
In the Native Title Act, Parliament identified a number of mechanisms for achieving its broader objectives, one of which is contained in subdiv P. One should not give so much weight to the overall purpose of the legislation that a subsidiary purpose, demonstrated by the language used, is frustrated. Subdivision P is clearly concerned with the rights and powers of the relevant State, and decisions which it makes in dealing with third parties. It is appropriate, as the Native Title Party suggests, to construe the Native Title Act, having regard to the preamble to the Native Title Act. However it does not follow that the decision-maker is at liberty to decide how the “overriding imperative” of the act may best be achieved in a particular case, disregarding the specific wording of the legislation. The decision-maker, when called upon to apply relevant provisions of the Native Title Act, must be faithful to the wording of the legislation, and any relevant judicial authority.
In subdiv P, the Parliament sets out part of the regime for recognizing and protecting native title. It includes a process of negotiation in good faith, save where the expedited procedure applies. The process focusses on the meaning of the term “act attracting the expedited procedure” as defined in s 237. The decision-maker must consider whether he or she is satisfied as to the matters there identified, to the extent that they are in dispute between the parties. The decision-maker must be conscientious in his or her consideration of the matter. The difficulty with the Native Title Party’s submission in this regard is that it might be interpreted as requiring the decision-maker to favour the native title party. Such an approach would not lead to a conscientious decision. Rather it would constitute an avoidance of the statutory duty imposed by s 32(4).
The Native Title Party submits that the Tribunal is required to make a “predictive assessment” concerning the likelihood that the proposed grant may have any of the consequences outlined in s 237. See the decision of McKerracher J in FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182 at [39]. The word “likely” is to be interpreted as meaning a real, or not remote chance or possibility. The word “likely” does not compel the conclusion that the risk of interference must be more probable than not. The Tribunal must consider the detailed factual circumstance of each case.
At para 4.10 to 4.12 the Native Title Party submits that in each case, the Tribunal must consider the weight to be given to the possibility of protection offered by the Aboriginal Heritage Act 1972 (WA) (the “AH Act”). It further submits that although the Tribunal has “generally” found that the regime is sufficient to ensure that interference with sites of particular significance is unlikely, each case must be considered on its own facts. I accept that proposition.
The Native Title Party contends that the criteria for protection of sites pursuant to the AH Act, differ from those for identifying areas or sites of ‘particular significance’ pursuant to s 237(b) of the Native Title Act. The criteria are plainly different. There may well be some areas or sites of particular significance, according to the traditions of the native title holders, which areas or sites do not fall within any protected category under the AH Act. The reverse may also be the case. However, unless a party seeks to demonstrate the differential operation of the respective provisions with respect to a particular area or site, it is not generally appropriate for the Tribunal to undertake that task. Similarly, if a party asserts that the AH Act will provide relevant protection against “interference”, it should demonstrate the basis for such assertion.

For the purposes of s 237(b), a future act will attract the expedited procedure if the act is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title holders. The Native Title Party submits that sites or areas of particular significance, not located within the proposed tenement may still be interfered with by the proposed grant. However, it does not necessarily follow that in each case, bare assertions of such connections and possible damage to areas or sites outside of the proposed tenement, should be accepted at face value. One might reasonably expect an explanation of the basis for any such assertion. I do not mean to imply that any such explanation should be of a scientific nature, or otherwise logically probative. The explanation may well depend upon cultural or spiritual considerations, and be no less convincing on that account.
In Yindjibarndi McKerracher J observed that interference under s 237(b) need not be physical, pointing out that in s 237(b), the word ‘interfere’ is “qualified only by the expression ‘…in accordance with [the native title party’s] traditions’”. His Honour also noted that interference, which might be ‘trivial’ for the purpose of s 237(a), might be substantial for the purpose of s 237(b). At para 5.17 to 5.18 the Native Title Party submits:
5.17If the Tribunal has considered the nature of the proposed exploration, including all preventative measures, and has considered the nature of the particular sites, and publishes its findings in relation to those facts, “it does not need to go further to say why a particular piece of exploration activity is likely to interfere with a particular site” as a finding of likely interference is “the conclusion based on the examination of the underlying facts concerning the activities and the sites”: [Yindjibarndi], per McKerracher J at [52].
5.18Consequently, the Tribunal is not required to state its findings on exactly what action would be likely to constitute interference: [Yindjibarndi], per McKerracher J at [82].
Of course, his Honour’s decision should not be understood as detracting from the requirement that the Tribunal give reasons, or as excluding such reasons from appropriate scrutiny.
At para 5.21 the Native Title Party submits that the proposed tenement contains sites and areas of particular significance to the Native Title Party as follows:
(a)The [proposed tenement] is situated on and adjacent to Ilgarari [C]reek, which is an area and/or site of particular significance to the Native Title Party.
(i)   Williams affidavit at [12] – [14], [16] – [18], [23]
(b)There are two tjukurrpa – Ngayurnangalku tjukurrpa and Marlu tjukurrpa – that are associated with Ilgarari [C]reek. They both travel east through the area of the [proposed tenement], and the land and waters they traverse is an area and/or site of particular significance to the Native Title Party.
(i)   Williams affidavit at [14], [16] – [20], 22
(c)The Ngayurnangalku tjukurrpa stops at one of the pools associated with Ilgarari Creek, which is located inside the [proposed tenement].
(i)   Williams affidavit at [16]
(d)Parts of Ilgarari Creek, which are associated with the Marlu tjukurrpa, are of particular importance to initiated men [wati].
(i)   Williams affidavit at [18], [27]
(e)The [proposed tenement] is also adjacent to and surrounded by sites and areas associated with the Ngayurnangalku tjukurrpa and Marlu tjukurrpa.
(i)   Williams Affidavit at [16] – [17], [19] – [21]
[emphasis in original]
In para 16 of Mr Williams’ affidavit, he refers to pools in the creek where the “cannibals” (of the Ngayurnangalku tjukurrpa) would stop as they travelled east or north-east. In para 17 he refers to the path taken by the Marlu tjukurrpa, following the Ilgarari Creek through the proposed tenement to the “lakes in the east” inside Birriliburu country, which country lies to the east of the determination area and of Yanneri Lake.
Mr Williams asserts that the places through which both tjukurrpas travel are connected, so that if “you hurt one part of it, you can hurt the other parts too”. Mr Williams also says that the Gingirana People still care for this country, particularly the area of Yanneri Lake. Ilgarari Creek is connected to that lake. They also protect the lake and Ilgarari Creek, including the parts of which lie inside the proposed tenement. I have previously referred to Mr Williams’ evidence in this regard, including his evidence that he conducted a helicopter reconnaissance to the west of Yanneri Lake. I have also expressed my views concerning generalized assertions of “connection” between areas or sites, and generalized statements that harm to areas or sites inside the proposed tenement can cause harm to areas or sites beyond its boundaries.
At para 5.22 the Native Title Party submits:
(a)Sites created by the tjukurrpa are, by their very nature, “not sites which might be readily identifiable by persons other than those instilled in the mysteries of the tjukurrpa. Therefore, notwithstanding the best of intentions, inadvertent interference is distinctly possible if the [Proposed Grantee] enters the area without guidance from the native title party”
(i)   Williams Affidavit at [24] – [25]
(b)There are sites and areas in the Tenement that cannot be accessed by women or uninitiated men. Inappropriate access to these areas by someone of the incorrect gender would constitute interference for the purposes of section 237(b).
(i)    Williams Affidavit at [18], [27]
(c)Members of the Native Title Party are responsible for looking after sites and areas within the Tenement, in accordance with their traditional laws and customs. They have obligations to other members of the Western Desert Cultural Bloc to protect and maintain the parts of the tjukurrpa story that travel through and stop within the Tenement
(i)    Williams Affidavit at [15], [19], [22], [25]
(d)Members of the Native Title Party risk physical injury in the event that sites and areas within the Tenement are damaged by activities (including mere presence by non-wati) conducted by the [Proposed Grantee].
(i)    Williams Affidavit at [25], [27]
[emphasis in original]
The Native Title Party submits that those sites and areas receive only minimal protection from the AH Act, particularly because apparently “low impact” or “non-ground disturbing” activities might constitute interference although not prohibited by the AH Act.
It then asserts that “meaningful consultation and negotiation” is required to ensure that sites and areas of particular significance are not subject to interference.

THE PROPOSED GRANTEE’S CONTENTIONS

I have already set out the Proposed Grantee’s contentions at [19].

THE STATE’S CONTENTIONS

Overall, the State contends that the proposed grant is not likely to interfere with areas or sites of particular significance in accordance with the Native Title Party’s traditions in relation to the land or waters concerned. It points out that the proposed tenement falls within the external boundaries of three native title determination areas, in the case of the Gingirana determination area, to the extent of 86.94%; in the case of the Ngarlawangga determination area, to the extent of 6.05%; and in the case of the Nyiyaparli determination area, to the extent of 7%. The State’s contentions deal primarily with the area of overlap with the Gingirana determination area.
The State points to other current overlaps including:
·        one class C reserve, overlapping the proposed tenement by 25.57%;
·        the Bulloo Downs Pastoral Lease, overlapping the proposed tenement by 15.67%;
·        the Kumarina Pastoral Lease, overlapping the proposed tenement by 57.7%;
·        the Great Northern Highway, running through the area of the proposed tenement; and
·        existing petroleum geo-thermal titles including a PGERA67 Exploration Permit which overlaps the proposed tenement by 96.23%.
There is also the miscellaneous licence to which I have referred above.
The area of the proposed tenement has previously been the subject of 11 grants of exploration licences, one of which overlapped the proposed tenement by 50.51%. Another licence overlapped the proposed tenement by 84.31%, primarily in the north, which area appears to be the focus of the Native Title Party’s concerns. The relevant grantee reported exploration expenditure, between 2013 and 2015, of approximately $322,257.00.
There are no Aboriginal communities within the proposed tenement. One Registered Aboriginal Site (“RAS”) is located in the far south of the proposed tenement, which site is described as “engraving”, and named “Kumarina, Site 10994”. Such registration is pursuant to the AH Act. One Other Heritage Place (“OHP”) is also located in the proposed tenement. It is described as “Artefacts/Scatter” and named “No.36 Government Well”. It is also registered under the AH Act. Neither site has any particular relevance for present purposes.
The State intends to impose endorsements and conditions upon the proposed grant, including standard directions as to environmental rehabilitation and environmental approval (which will be required before any ground-disturbing activities are undertaken). Breaches of statutory conditions, or conditions imposed by the Minister on an exploration licence leave the licence liable to forfeiture. The State will also place a condition on the grant, requiring that the Proposed Grantee, if requested by the Native Title Party, enter into an RSHA in one of the forms prescribed by the State. The State notes that the Proposed Grantee has affirmed its willingness to enter into such an agreement, and that the Tribunal has previously found that such agreements require the relevant grantee party to notify, consult and, if necessary, carry out surveys with the Native Title Party.
It is said that the Tribunal has previously accepted that such an agreement could further reduce the likelihood of interference. The State considers that the various circumstances indicate that the Proposed Grantee is willing to work with the Native Title Party to avoid disturbance to areas or sites of particular significance. In this regard, it refers to the various matters addressed in the Proposed Grantee’s contentions.
The State submits that in the absence of evidence to the contrary the Tribunal will assume that the Proposed Grantee will not act in breach of the relevant statute law, regulations or conditions imposed upon the proposed grant.
After referring to numerous decisions of Tribunal Members, the State contends, at paragraph 22 that: “the Federal Court considered the Tribunal’s application of this approach in Ward v Western Australia (1996) 69 FCR 208 at 228-230, and made no negative finding about it when it was open to do so.”
I do not understand that “approach” to be consistent with views expressed by Judges of the Federal Court. In particular, the decision in Ward v Western Australia (1996) 69 FCR 208 at 228-230 should not be taken as approving of it. In that case Carr J was hearing an appeal from a Tribunal decision. The State seems to have asserted that the Tribunal ought not to have taken into account the efficacy or otherwise of the AH Act, and that such error was an appealable error of law. At 230, his Honour said:
What the appellants seek to do is to bring into question the weight which the Tribunal accorded to such matters as the Guidelines and their likely practical effect, the expressions of intent to comply with the [AH Act], and the likelihood that people whose attention is drawn to a particular law will abide by it, on the one hand and various other aspects (including the Senior Report in Ward II) on the other hand. To do this would be to usurp the function which Parliament has entrusted to the Tribunal. It was for the Tribunal, without being bound by technicalities, legal forms or rules of evidence … to conduct its inquiry and decide on the matters put before it. One of the factual inquiries it had to make was into the legal and practical effectiveness or otherwise of the [AH Act]. It is apparent from the Tribunal’s reasons that it regarded that matter as being of basic importance in determining whether there was likely to be any interference with areas or sites of particular significance.
The government party submitted that it was not open to the Tribunal or this Court to consider the effectiveness or otherwise of the [AH Act]. It further submitted that evidence on this matter ought not to have been admitted at the hearing before the Tribunal. Mr Donaldson cited some authority and various articles on what was described as “the notion of justiciability” of the effectiveness of a statute. It was submitted that this ground of appeal was tantamount to asking the Court to determine whether legislation, validly and lawfully enacted by the Parliament of Western Australia, is “‘good’ i.e. not whether it is lawful or valid”. The appellants, in reply, say that it was the State which raised the factual effectiveness of the [AH Act] as a justiciable issue before the Tribunal. In my view it is not necessary for me to determine this issue. It is sufficient for me to hold, as I do, that in inquiring and determining whether there was likely to be any interference with areas or sites of particular significance, the Tribunal did not err in law by taking into account the effectiveness of the [AH Act], how it was administered in practice, the likelihood that the grantee parties would have to consult with the native title parties in order to comply with the [AH Act] and in those circumstances the likelihood that they would do so. All of these matters were part of a fact finding exercise to determine whether there was likely to be any interference with areas or sites of particular significance.
Some months later, a similar point was considered by Lee J in Western Australia v Ward (1996) 70 FCR 265 at 275-276, where his Honour said, concerning the AH Act:
The protection against interference provided by legislation such as the [AH Act] was to be given such weight as the Tribunal considered appropriate in the circumstances of the case before it but the existence of that law did not require the Tribunal to conclude that the prospect of interference to a site of significance was removed by the application of a “presumption” that the law would be observed by a grantee party.
A similar point was considered in Little v The State of Western Australia [2001] FCA 1706. Nicholson J said, at [75]:
[I]t is submitted that the Tribunal could not reasonably have concluded that exploration activities would be likely to interfere with any of these sites because all of them are subject to the protection of ss 16 and 17 of the [AH Act] and there is no evidence suggesting that it is likely this protection would be removed.
After setting out the relevant legislation Nicholson J held at [77]:
For the applicants it is submitted therefore that the [AH Act] does not provide unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s 18 to permit a breach of s 17 may occur in circumstances where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect of the sections in the [AH Act]. In other words the chance of such interference is not real and is remote in those circumstances.
At paras 28 to 31 of its contentions, the State sets out a number of propositions concerning the requirements of s 237(b). I disagree with a number of them. First, in paragraph 28.3, it is said that the relevant interference may involve actual physical intervention and even slight interference may be unacceptable in the context of s 237(b). My concern is the reference to the assertion that the interference “may” involve actual physical intervention. The State’s position in this regard appears to be a modification of that which it adopted in Yindjibarndi, at [75]-[76]. McKerracher J there dealt with the contention by the State that the “interference will ordinarily be physical”. His Honour observed that there is no reference to physical interference or any other qualification upon the word “interference” contained in s 237(b) save for the words “in accordance with the [Native Title Party’s] traditions”. I proceed upon the basis that interference need not be physical. I also query the use of the words, “directly” and “physically” in para 28.4 where the State is dealing with the possible adverse consequences to areas or sites outside of the proposed tenement, as a result of action within the proposed tenement. Certainly, the question of establishing the likelihood of interference with areas or sites outside of the proposed tenement poses difficulties beyond those associated with interference said to have occurred within the proposed tenement.
At paragraph 31 it is said that, “as a matter of practice”, the Native Title Party, “must inform the Tribunal whether there are any sites of particular significance in the area or vicinity of the proposed tenement”, and that the Native Title Party must explain the “sacredness” by means of evidence adduced from persons with the authority to speak in relation to the site. It is said that this is a “condition precedent” for an enquiry under s 237(b). This last proposition is said to be established by the decision of the Tribunal in Kevin Walley v Western Australia [2001] NNTTA 78, at [45].
It is true that at [45], Member Sosso said:
In my opinion it is a condition precedent for an enquiry under paragraph (b) that an objector bring to the attention of the Tribunal an area or site which it is alleged is of particular significance within the meaning of the Act. In the absence of such material the Tribunal would be left undertaking a speculative exercise based on generalities and suppositions.
It is, perhaps, unfortunate that the term “condition precedent” was used in this context. As a matter of general practice one would expect an objector to bring to the attention of the Tribunal, any area or site of particular significance according to the native title holders’ traditions. To that extent the validity of the proposition cannot be challenged. However use of the term “condition precedent” might suggest that satisfaction of such condition is a necessary pre-requisite to an objection, or to the Tribunal’s jurisdiction.
The State’s contention that the Native Title Party must explain the relevant “sacredness” by means of evidence adduced from persons with the authority to speak in relation to the sites, is said to be supported by the decision of Member Sosso in Valerie Tambling and Others v N.T. Gold Pty Ltd [2002] NNTTA 209 at [39]. Two criticisms may be made concerning this contention. The first is that it is not appropriate or necessary to equate the term, “particular significance according to the native title holders’ traditions”, with the word “sacredness”, although sacredness may well be the basis for particular significance. Secondly it may not be accurate to say that such evidence must be adduced from persons with the authority to speak in relation to the sites. That contention might exclude expert evidence from an anthropologist or other qualified expert witness, or lay evidence based on observations and experience. These criticisms should not be understood as undermining the Member’s reasons. He was obviously describing the practicalities of the cases in question. My concern is only that his language may induce others to take a more rigid approach than is appropriate, having regard to s 237(b), as explained by the cases. Certainly, the State’s submissions at paragraph 31 appear to be heading in that direction.

At paragraph 32 the State identifies the following areas or sites of particular significance according to its understanding of the Native Title Party’s case. They are:
·Ilgarari Creek;
·The two tjukurrpa;
·a pool or pools associated with Ilgarari Creek and the two Tjukurrpa;
·other pools associated with Ilgarai Creek;
·sites of significance to initiated men; and
·areas or sites adjacent to the creek.

Ilgarari Creek

The State accepts that the evidence is likely to establish Ilgarari Creek as, “a site of particular significance”. The two tjukurrpa are associated with it, and there is evidence that common law holders are concerned to “check on the creek”. Mr Williams states that the creek is “really significant”. Mr Williams’ evidence is that the creek is just inside the northern boundary of the Gingirana determination area and that, from there, it travels east. The State contends that it is unclear whether it is located just inside the northern boundary of the Gingirana determination area.
The map contained in Attachment A does not show Ilgarari Creek as being within the proposed tenement. Rather, it shows it to the east of the proposed tenement and as part of the northern boundary of the Gingirana determination area. Some maps identify an unnamed creek in the north-west of the proposed tenement, not apparently linked to Ilgarari Creek. An enlarged aerial photograph fairly clearly identifies the unnamed creek, and another creek-line running through the north-western part of the proposed tenement, and then flowing east-north-east out of that tenement. I infer that the creek shown in the aerial photograph is the creek identified by Mr Williams as Ilgarari Creek. This inference is supported by the map in Annexure B, which map represents hydrographic data concerning water flow in the north of the proposed tenement.
The State then addresses the two tjukurrpa, particularly each’s association with the creek. It submits that not all Dreamings, or the areas or sites associated with them, will be of particular significance according to the traditions of the native title holders. It also contends that to the extent that the tjukurrpa relate to areas or sites “distinct” from Ilgarari Creek, there is insufficient evidence as to the locations or particular significance of those areas or sites. I am inclined to accept that submission. The only references to identified areas or sites outside of the creek and its immediate surroundings appear to be to Yanneri Lake and Lake Disappointment. It seems to be suggested that each lake is, in some way, linked to the proposed tenement by creek-lines, each of which may or may not be a branch of Ilgarari Creek.

Sites of Significance to Initiated Men

Concerning the Marlu tjukurrpa the State points out that there are parts of the creek which are of particular importance to initiated men, as submitted by the Native Title Party in para 5.21(d) of their contentions. The State submits that such places are not sufficiently identified, either as to the location, or the nature of any risk.
The State’s submission has merit. Mr Williams only says “we wouldn’t want women going to certain places in [the proposed tenement], near that creek, it would mess [the marlu tjukurrpa] up.” One would expect an explanation of the basis this belief. Such explanation may involve some reference to stories, lore or oral history to demonstrate that the relevant belief has a basis in the native title holders’ traditions.

Pools Associated with Ilgarari Creek

The Native Title Party submits that pools associated with Ilgarari Creek are of particular significance in that the “cannibals” travel inside the tenement and stop at a pool inside the proposed tenement. They then travel north-east up to Lake Disappointment. It is said that they travel on both sides of the creek, stopping at pools where there is water. It is said that the Marlu tjukurrpa also travels through the tenement, following the creek but travels further to the east before being pushed back by the sand dunes.
The reference in paragraph 19 of Mr Williams’ affidavit to, “[the] places where the Ngayurnangalku tjukurrpa and the Marlu tjukurrpa travel and sit down”, suggests that the two stories follow the same track over some part of the creek line, within the proposed tenement. No doubt it is of some significance that the tjukurrpa tracks partially coincide. Again, there is no explanation as to how interference with one “sit down” place would affect the others, or why the native title holders should hold such a belief.

Areas or Sites Adjacent to the Proposed Tenement

The State points out that, at para 5.21(e) of the Native Title Party’s submissions, it is said that: “the [proposed tenement] is also adjacent to, and surrounded by sites and areas associated with the [two tjukurrpa]”, referring to paras 16, 17, 19, 20 and 21 of Mr Williams’ affidavit. Those paragraphs do not really support the proposition advanced by the Native Title Party. The evidence does not establish that the proposed tenement is adjacent to, and surrounded by sites and areas associated with the two tjukurrpa. As far as the evidence goes, all areas or sites associated with the tjukurrpa within the proposed tenement are in the far north. There are, of course, the two registered sites to which I have referred. However they play little or no part in the Native Title Party’s case. Lake Disappointment and Yanneri Lake are too far away to be so described.
In general I am inclined to accept the State’s submission at para 55, that the sites and areas of particular significance according to the Native Title Party’s case, are in the far north of the proposed tenement, save for Yanneri Lake and any creek flowing from the proposed tenement to the lake and possibly, Lake Disappointment and any creek flowing to it from the proposed tenement.

Interference

At para 66 of its contentions, the State submits that:
Although the Tribunal has recognised that entering country without obtaining the permission of, or consulting with, traditional owners can constitute interference for the purposes of section 237(b) this has been applied in limited circumstances only, and must be established on the evidence.
Authority for this proposition is said to be found in the decision of the Tribunal in Andy Campbell v Western Australia [2012] NNTTA 48 at [57]. At that reference, I find no clear authority for the State’s proposition, although it may underlie the observations there made. However, at [67] the Member said that:
The Native Title Party made a number of contentions based on the assertion that unauthorised entry onto the proposed licences and adjacent areas would result in interference within the meaning of s 237(b). Several of these submissions were made on the basis of the pervasive spirituality of the country surrounding the proposed licences, while others were directed to the need to regulate access to specific places within the Imbin Area. In particular, the native title party argued that unauthorised access may result in interference where access to and information about specific places is restricted to people of a certain gender or status. The native title party contends that, in these circumstances, the RSHA will not prevent interference and questions the utility of an endorsement drawing the grantee party’s attention to the AHA. I have already dealt with the question of the significance of the broader Imbin Area, and I do not accept the Native Title Party’s contention that the fabric of the country on, and immediately adjacent to, the proposed licences is such that unauthorised entry will result in the kind of interference contemplated by s 237(b). However, I do accept that access to restricted areas without consultation with the native title party may result in interference. This is particularly relevant for Mt Oolongathoo, access to which is restricted to initiated men.
The Tribunal seems to have rejected the general proposition that unauthorized entry may, of itself, constitute interference. However it accepted that entry without consultation may “result” in interference. In the present case the same line of reasoning may have applied, had the Native Title Party sufficiently identified the relevant area or areas. The State submits that the Native Title Party has not provided sufficient evidence to establish that unauthorized entry would amount to, or lead to interference. This argument has merit. It also contends that there has already been substantial exploration activity in the area, so that any additional impact would be negligible. It is difficult to give much weight to that submission. It appears to be an assumption rather an available inference.
The State also contends that the grant of the proposed tenement is not likely to result in direct interference with any area or site of particular significance because of the available protection afforded by the AH Act.This aspect of the State’s contentions is based upon the assertion in para 71 that, “the sites identified by the Native Title Party as being sites of particular significance”, may fall within the definition of “Aboriginal site” pursuant to section 5(b) of the AH Act.
The protective provision, s 17, provides that:
a person who excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or in any way alters, damages, removes, destroys, conceals or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site, commits an offence unless he is acting with the authorization of the Registrar under section 16 or the consent of the Minister under section 18.
Section 5 of the AH Act provides that:
This Act applies to:
(a)      any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use, or, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b)      any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
(c)      any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d)      any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
Clearly enough para (a) does not apply. There is no suggestion of any objects, natural or artificial, being left in any relevant area or site. Paragraph (c) does not apply. There is no suggestion that the relevant committee has formed the necessary opinion. Paragraph (d) does not apply. There is no evidence of any such storage.
Thus, as the State appears to accept, the only basis upon which the protection of s 17 could be invoked would be pursuant to s 5(b). For present purposes, s 17 could only be invoked if it were shown that a relevant area or site, for the purposes of s 237(b), is also a sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent, for the purposes of the AH Act.
Mr Williams uses language such as “really significant”, or “really important”. He also says that it would be bad for the tjukurrpa, or bad for the people if the proposed grantee, without permission, started chipping rocks or digging the soil near the creek. Such conduct could, “mess up that creek and mess up that tjukurrpa”. However there is no specific reference to sacred, ritual or ceremonial sites.
Areas or sites caught by s 5(b) and s 17 may also be caught by s 237(b). The converse may also be the case. Areas or sites of particular significance in accordance with the native title holders’ traditions for the purposes of s 237(b), will only fall within the definition in s 5(b) of the AH Act if they are sacred, ritual or ceremonial sites. In this case there is no clear evidence of any such sites.
I proceed upon the basis that the AH Act is not likely to offer significant protection of any relevant area or site.

NATIVE TITLE PARTY’S REPLY

The Native Title Party’s contentions extend to 10 pages. Its contentions in reply extend to 9 pages. A party may reply in order to respond to a question of law which has not previously been addressed, or to correct a factual error or misleading statement made in the course of other parties’ submissions. It may be that in this case, the State and the Proposed Grantee provided the evidence and contentions in ways which made it difficult for the Native Title Party to avoid a lengthy reply. Nonetheless, lengthy replies are to be discouraged.
The Proposed Grantee’s submissions suggest acceptance of the need for discussions between the Native Title Party. The Native Title Party asserts that such acceptance demonstrates the need for negotiation. There is some merit in this submission.
As to the State’s contentions concerning protection under the AH Act, the Native Title Party’s assertions effectively go to weight, not usually a proper subject for reply. In any event, I have already given my reasons for rejecting the State’s submissions concerning the AH Act.
The Native Title Party asserts that the State offers no evidence in support of its submission that I should accept that the Proposed Grantee will comply with all relevant statutes, regulations and conditions. At paras 2.9 and 2.10, the Native Title Party indicates its disagreement with the State’s contention that the Proposed Grantee has demonstrated its willingness to work with the Native Title Party, again contending that such a submission demonstrates the need for negotiation. There is merit in this submission.
At paras 3.1 to 3.8 the Native Title Party discusses Ilgarari Creek and, “location of sites and/or areas of particular significance”. As to the creek, the Native Title Party notes that the State concedes that it is a site or area of particular significance, and that the Proposed Grantee seems also to concede this point.
At para 3.2, the Native Title Party asserts that the State effectively contends that the Tribunal may only determine that the expedited procedure does not apply if the, “exact location of the relevant sites/areas” is demonstrated. The Native Title Party strongly disagrees with this assertion. I am not sure that the State went so far. As appears from these reasons, I consider that aspects of the Native Title Party’s evidence lack necessary detail. Given that s 237(b) focusses on areas or sites of particular significance, it seems reasonable to expect that there should be at least some general indication as to their respective locations, why they are of particular significance and as to why adverse consequences may occur if the proposed grant is made. However, the Native Title Party submits at para 3.3 that the intention behind s 237(b) is, “simply to demonstrate that a site or area of particular significance is located within (or adjacent) to the area of the tenement and that this site or area is likely to be interfered with as a result of the grant of the tenement”.
The submission goes too far. No attempt has been made to justify it by reference to the terms of s 237(b) or the Native Title Act as a whole. The extent of the necessary evidence will vary, depending upon the case which is advanced. It will not generally be sufficient simply to assert that two places are “connected”, and that interference at one site will adversely affect the other. Further, the State does not speak of “exact locations”. At para 28.4 of the contentions, it speaks of general location. It recognizes, at para 29.4, that a native title party may wish not to disclose, “the precise location”, of an area or site. At para 31 it speaks of the “area or vicinity” of sites. At para 45, the State uses the expression, “insufficient evidence of the location of any sites or areas”. See also paras 49, 52, 53 and 56. The State, in my view correctly, simply asserts that in some important respects, the Native Title Party’s evidence is inadequate.
The Native Title Party further submits that, “the only circumstance in which it may be necessary to identify the exact location of the site or area of particular significance is if the relevant Proposed Grantee has sufficiently described the nature, location and extent of its proposed activities within the area of the tenement”. I do not accept that submission. Although the State may have notified its intention to permit the Proposed Grantee to explore within a defined area, it is unlikely that Proposed Grantee will, at that stage, have a full exploration plan. Almost certainly, the longer term plan will be developed, having regard to the results of early research and exploration. The Native Title Party, on the other hand, will generally have knowledge of its significant areas and sites within the proposed tenement and should be able to offer informed guidance as to areas or sites of likely concern. If there are such sites, it should be possible to identify their location with some degree of specificity, even if such disclosure is on a protected basis.
At para 3.5 the Native Title Party asserts that its evidence, “irrefutably demonstrates that there exist sites and areas of particular significance, within and adjacent to the tenement, and that their location is sufficiently identifiable for the purposes of s 237(b)”, referring to paras 12, 16 and 16 of Mr Williams’ affidavit. As to para 12, it relates to Ilgarari Creek “inside [the proposed tenement]”, and, “just inside the northern boundary” of the Gingirana determination area. With the assistance of the maps, I have been able to identify the creek. At paras 16 and 17, association between the two tjukurrpa and the proposed tenement is asserted. The directions taken by the tjukurrpa after leaving the proposed tenement are also identified. However, the locations of particular areas or sites are not identified. To suggest that the evidence sufficiently identifies their respective locations for present purposes is to beg the question. In effect, the Native Title Party asserts that such locations are sufficiently identified because they are sufficiently identified. In any event, general assertions of opinion are of little or no assistance.
At para 3.6 the Native Title Party asserts that if the content of Mr Williams’ affidavits was to be challenged, he ought to have been cross-examined. In general, that proposition is correct. However, as far as I can see in this case, the State did not challenge any of his evidence. It rather made comments as to its adequacy.
Paragraphs 3.7 and 3.8 are difficult to follow. The Native Title Party seems to suggest that the State should have taken notice of, “laws and customs that underpin [Mr Williams’] evidence”, apparently referring to evidence given in other proceedings. Obviously enough, if the Native Title Party wished to rely on that evidence, it should have said so. Indeed, it may well be that the gaps in the Native Title Party’s evidence, to which both the State and I have referred, are attributable to the Native Title Party’s failure to identify the content of relevant laws and customs, which content may have been described in earlier proceedings. However, it was for the Native Title Party to put such evidence before the Tribunal.
At paras 4.1-4.2 of its contentions in reply, the Native Title Party rejects the State’s submission that there is no real risk of interference with Ilgarari Creek, given the Proposed Grantee’s assertion that exploration will not occur near the creek. The Native Title Party submits that some sites of particular significance may be interfered with, “by virtue of the wrong people entering the area”. I shall deal with this submission in the course of dealing with paras 4.3 and 4.4 of the contentions in reply. The Native Title Party also submits, correctly, that the Proposed Grantee has not fully excluded the possibility that it will access the creek.

At para 4.2(b) the Native Title Party submits that, in focussing on the creek, the Proposed Grantee does not address areas of particular significance that, “surround the creek itself”. In support of this proposition, the Native Title Party refers to paras 5.21(c) and (d) of its contentions. The areas or sites there addressed are pools, “associated with Ilgarari Creek,” where, “the Ngayurnangalku tjukurrpa stops”, and “parts of Ilgarari Creek” associated with the Marlu tjukurrpa of particular importance to “initiated men”. My understanding is that the Proposed Grantee’s submissions deal collectively with the Native Title Party’s concerns. However, any such deficiency is, at least to some extent, attributed to the Native Title Party’s failure to identify and locate such sites.
In para 4.2(c) the Native Title Party again complains about the extent to which the Proposed Grantee has disclosed the extent of its intended exploration. I have already said something about that matter. The Native Title Party submits that I, “may assume that the [Proposed Grantee] can exercise the full suite of rights available to [it]”. I am not willing to infer that the Proposed Grantee will exercise all rights to be conferred by the proposed grant. However I accept that it may do so.
At para 4.2(d), the Native Title Party contends that the State has failed to “engage with [5.22(f)] of [the Native Title Party’s] contentions”. That paragraph in the Native Title Party’s contentions reads:
The nature of the sites and areas within the [proposed tenement] is such that interference with one part of the Tjukurrpa may cause interference to sites and/or country located at other points along the tjukurrpa.
In support of the proposition it cites Mr Williams’ affidavit at paras [19], [20] and [25]. It will be evident from these reasons that I generally agree with the State’s contentions in this regard.
At para 4.3, the Native Title Party, disagrees with the State’s submission that the Native Title Party has not provided sufficient evidence to establish that unauthorized entry upon the proposed tenement area will amount to interference. I again observe that opinions have no place in submissions.
At para 4.4, the Native Title Party deals with the State’s submission that, given the amount spent by previous explorers in the proposed tenement, any additional impact as the result of the Proposed Grantee’s entering the proposed tenement would be minimal. I find the State’s proposition to be unattractive. There is no evidence as to how the money was spent, nor as to the extent of exploration which the amount might reflect. The submission is purely speculative.
At para 4.5, the Native Title Party deals with the AH Act. Whatever be the general position, I have previously given my reasons for concluding that in this case, I am not willing to infer that s 17 will protect areas or sites of the kind contemplated by s 237(b).

DETERMINATION

This matter has been unduly complicated by the Native Title Party’s attempts to identify areas and sites outside of the proposed tenement which, it asserts, may suffer interference as the result of actions by the Proposed Grantee inside the proposed tenement. There are also suggestions that unidentified areas or sites in the proposed tenement, but not in proximity to the creek, might suffer such interference. I shall deal with these unidentified site below. However, I note that the evidence unequivocally focusses on the creek. Both tjukurrpa pass along the creek and, at some stage depart from it and each other, one travelling towards Lake Disappointment and the other, towards Yanneri Lake, thus departing the proposed tenement. It seems that the creek flows within the proposed tenement for 12-15km, although it is difficult to be sure.
It is clear from the remarks made of Barker J in his Honour’s Gingirana determination decision (Atkins, supra at [15]-[24]) that the stories referred to in those proceedings were only some of the stories relating to the Gingirana determination area. Mr Williams says that in the native title determination process, evidence was taken from the old men at the creek, thus justifying an inference that the creek and stories associated with it are of particular significance according to the native title owners’ traditions, and in comparison to other stories and other areas or sites. His Honour made specific reference to the Marlu tjukurrpa and others. It is reasonable to infer that tjukurrpa associated with Ilgarari Creek are of particular significance in accordance with the native title holders’ traditions.
I hold that Ilgarari Creek, its bed, banks and waters, within the boundaries of the proposed tenement, are of particular significance in accordance with the native title holders’ traditions, particularly by virtue of its association with the two tjukurrpa.
The Native Title Party submits that there are other, unidentified areas or sites within the proposed tenement, apart from those in, or near to the creek. See paras 5.22 and 5.23 of the Native Title Party’s contentions. No such site is identified. The only identified sites outside of the proposed tenement seem to be Lake Disappointment, Yanneri Lake and, possibly, watercourses linking the proposed tenement to the area of each lake.
Lake Disappointment and Yanneri Lake may well be places of significance to the Gingirana People, but the former is more than 300 kms from the proposed tenement and well outside the Gingirana determination area. The physical links between the proposed tenement and the lake appear to be, over a considerable part of that distance, unidentified creeks and waterholes. There is no basis in the evidence for inferring the risk of any harm to those features or Lake Disappointment as the result of any conduct pursuant to the proposed grant within the proposed tenement. Yanneri Lake is much closer to the proposed tenement, but still 70-80 km to the east. Again, I see no basis for inferring interference as a result of actions within the proposed tenement either to the lake, or any connecting watercourses.
I generally accept the various undertakings and assurances given by the Proposed Grantee in its contentions. However that is not an end of the matter. I note that the Proposed Grantee’s exploration for manganese will be “near surface”, but the exploration for copper will be deeper. The manganese exploration will be closely associated with known manganese deposits, about 3km north of the proposed tenement. Although it is not entirely clear, it seems that the copper exploration will be located further south. Although I accept that the Proposed Grantee has no present plans to explore Ilgarari Creek within the proposed tenement, it may nonetheless choose to do so. That there is an identified manganese deposit in such close proximity to the proposed tenement suggests the strong possibility of benefit in doing so. The absence of details concerning proposed exploration activities in later years of the proposed tenement raises concern as to the possibility of exploration, in or near the creek.
At first blush, it seems that the draft endorsements and conditions may offer some protection to Ilgarari Creek. Endorsements 6-12 provide as follows:
6    The taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless current licences for these activities have been issued by Department of Water and Environment Regulation (DWER).
7    Measures such as drainage controls and stormwater retention facilities are to be implemented to minimise erosion and sedimentation of adjacent areas, receiving catchments and waterways.
8    All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
In respect to proclaimed Surface Water Areas 16 (Gascoyne River and Tributaries), Irrigation District Areas and Rivers (RIWI Act) the following endorsements apply:
9    The taking of surface water from a watercourse or wetland is prohibited unless a current licence has been issued by the Department of Water and Environment Regulation (DWER).
10 Advice shall be sought from the Department of Water and Environmental Regulation (DWER) and the relevant water service provider if proposing in an existing or designated future irrigation area, or within 50 metres of a channel, drain or watercourse from which water is used for irrigation or any other purpose, and the proposed activity may impact upon water users
11 No exploration activity is to be carried out if:
·it may obstruct or interfere with the waters, bed or banks of a watercourse or wetland
·it relates to the taking or diversion of water, including diversion of the watercourse or wetland
unless in accordance with a permit issued by the Department of Water and Environmental Regulation (DWER).
12 The taking of groundwater and the construction or altering of any well is prohibited without current licences for these activities issued by the Department of Water and environmental Regulation (DWER), unless an exemption otherwise applies.
The reference to the “RIWI Act” is to the Rights in Water and Irrigation Act 1914 (WA) (the “RIWI Act”).
I understand that the whole of the proposed tenement lies within Proclaimed Ground Water Area 15. However there is no evidence of any relevant ground water reserves within the proposed tenement. As to proposed endorsements 9 to 11, I understand that Ilgarari Creek does not fall within Proclaimed Surface Water Area 16. There is no evidence that the creek falls within any Irrigation District area. Further the term “river” and “Creek” are used disjunctively in the RIWI Act. Ilgarari Creek is clearly a creek, not a river. Hence it seems that the protection offered by endorsements 9-11 do not apply.
The State nonetheless submits that the Proposed Grantee will not be authorized to take water from Ilgarari Creek unless it first obtains a licence pursuant to the RIWI Act. This matter is of some potential significance in that the taking of water might lead to damage to the bed, bank and water of the creek. It is not clear to me that s 5C applies for present purposes. That section only applies if s 5C(2) is engaged. There is no evidence demonstrating that the creek is a watercourse as contemplated by that section. I also note that, within the proposed tenement, the creek appears to be intermittent and is not recorded on relevant maps (see Annexure A). As I have said, I identified the creek by reference to aerial photography and hydrographic data (see Annexure B). In any event, the provisions of the RIWI Act seem to be so complex that one doubts whether they could be readily enforced in a relatively remote area.
In this case, a number of matters remain unresolved. They include:
·the nature of any exploration activities in later years of the proposed tenement;
·the absence of any description of the extent of any proposed ground disturbance;
·the extent to which the Proposed Grantee may seek approval to use earth moving equipment pursuant to proposed condition 3;
·the possibility of exploration activity in the creek, or nearby, notwithstanding the Proposed Grantee’s present intention to the contrary;
·concerns about disclosure of men’s business;
·the apparent importance of the physical appearance of the area, to be inferred from the reference to depicting the Ngayurnangalku Tjukurrpa in art; and
·concern that chipping rocks or digging soil near the creek would be bad for the tjukurrpa and the people.
Given the importance of the pools and the “sit down” places within the proposed tenement, it is relatively easy to accept that such damage (rock chip sampling and digging) would be inconsistent with the importance of those areas and sites, and the tjukurrpa relating to them.
I conclude that it is not unlikely that there will be interference with areas or sites within the proposed tenement, which areas or sites are of particular significance in accordance with the native title holders’ traditions, particularly Ilgarari Creek and associated pools and “sit down” places within that tenement.
I hold that the expedited procedure does not apply to the proposed grant.

The Hon John Dowsett AM, QC

President

28 September 2020

ANNEXURE A: MAP OF PROPOSED TENEMENT

ANNEXURE B: AERIAL IMAGERY OF PROPOSED TENEMENT

SUPPLIED BY THE NATIVE TITLE PARTY