Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/ Western Australia/ Red River Resources Ltd - [2007] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/ Western Australia/ Red River Resources Ltd, [2007] NNTTA 30 (30 March 2007)

Application No: WO06/228

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

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

Wilfred Hicks and Others on behalf of Wong-goo-tt-oo (WC98/40) (native title party)

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The State of Western Australia (Government party)

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Red River Resources Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 30 March 2007

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

Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237

Aboriginal Heritage Act 1972 (WA), s 62

Mining Act 1978 (WA), ss 20(5), 63

Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Daniel v State of Western Australia, [2003] FCA 666
Daniel v State of Western Australia [2005] FCA 536
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 & WO05/48 [2006] NNTTA 74 (13 June 2006), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner

Solicitors for the

native title party: Kitto & Kitto, Barristers and Solicitors

Representatives of the Mr Rod Wahl, State Solicitor’s Office

Government party: Ms Jan Mason, Department of Industry and Resources

Representative of the Ms Melissa Greer
grantee party: Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

On 7 June 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1309 (‘the proposed licence’) to Red River Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 204.64 square kilometres and is located 27 kilometres southwesterly of Dampier in the Shire of Roebourne. 44.4 per cent of the proposed licence is overlapped by both the Yaburara & Mardudhunera registered claim (WC96/89, registered from 1 August 1996) and the Wong-goo-tt-oo registered claim (WC98/40, registered from 25 June 1996). The remaining 55.6 per cent is overlapped by the Ngarluma Aboriginal Corporation, the prescribed body corporate for the Ngarluma Determination Area located within the Ngarluma/Yindjibarndi Native Title Determination Area (WAD6017/96).
Prior to the Ngarluma/Yindjibarndi native title claim determination of 2 May 2005, the Wong-goo-tt-oo registered native title claim area overlapped the Ngarluma/Yindjibarndi registered native title claim area by 52 per cent. On 3 July 2003, Nicholson J concluded in the reasons for judgment that the Wong-goo-tt-oo claim applicants do not hold native title rights and interests in the Ngarluma/Yindjibarndi Determination Area save as they may do so as Ngarluma or Yindjibarndi people. (Daniel v State of Western Australia, [2003] FCA 666 (3 July 2003) (at [1163] – Draft determination para 6)). As part of the final determination on 2 May 2005, Nicholson J ordered that the Wong-goo-tt-oo claim application be dismissed, to the extent it overlaps with the Ngarluma/Yindjibarndi claim application, such dismissal being without prejudice to any rights the members of the Wong-goo-tt-oo claim group may have as Ngarluma People or Yindjibarndi People (and not as Wong-goo-tt-oo) to be native title holders (Daniel v State of Western Australia [2005] FCA 536 (2 May 2005) (para 24)). Subsequently the record of the Wong-goo-tt-oo claim application was amended on the Register of Native Title Claims to exclude that portion which overlapped the Ngarluma/Yindjibarndi Determination Area. The Wong-goo-tt-oo claim applicant appealed against the Federal Court determination which was heard in May 2006 and for which judgement is reserved.Although an appeal has been lodged by the Wong-goo-tt-oo the Tribunal must proceed on the basis of the Federal Court determination and consequent amendment to the Wong-goo-tt-oo native title party’s registered claim. Prior to the Ngarluma/Yindjibarndi determination the Wong-goo-tt-oo claim would have overlapped the proposed licence area by 100 per cent. As a result of the Federal Court Determination the Wong-goo-tt-oo overlap was reduced to 44.4 per cent.
On 7 June 2006, an expedited procedure objection application was lodged with the Tribunal by Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo (WC98/40) (‘the native title party’). No objections were lodged on behalf of the Yaburara & Mardudhunera or the Ngarluma Aboriginal Corporation.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. On 9 November 2006, following a number of conferences, the grantee party advised that the terms of the native title party’s heritage protection agreement were not acceptable. It preferred to enter into an amended Regional Standard Heritage Agreement (‘RSHA’), which was not acceptable to the native title party. The grantee party therefore requested that the matter proceed to inquiry in line with the Tribunal’s directions and all parties subsequently agreed.
In accordance with the directions, the Government party lodged its submissions by 19 January 2007 and the native title party by 5 February 2007. The grantee party indicated it would rely on the Government party's submissions.
On 22 February 2007, a Listing Hearing was conducted at which parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].

Evidence in relation to the proposed act

Government party documentation establishes the following notable underlying land tenure on the proposed licence:

Department of Industry and Resources Non Section 57(2aa) Mineralisation Zone 1 (76.6 per cent overlap)
Karratha Station Pastoral Lease 3114/464 vested in Hamersley Iron Pty Ltd (65.2 per cent overlap)
Vacant Crown land (11 parcels totalling 18.3 percent overlap and 13 parcels overlapping at less than 0.1 percent each)
Mardie Station Pastoral Lease 3114/1027 vested in Fourseasons Corporation Pty Ltd (4.7 per cent overlap)
Department of Resources Development File Notation Areas 843, 968, 3084, 3259 and 3730 (1.1, 5.6, 2.4, 0.6 and 0.3 per cent overlaps respectively)
Department of Environment and Conservation Karratha and Mardie Pastoral Lease Exclusion Areas (3.7 per cent and less than 0.1 per cent overlap respectively)
Department of Planning and Infrastructure File Notation Area 3355 (2.7 per cent overlap)
Department of Industry and Resources File Notation Areas 3440, 3928 and 6657 (2.2, 0.3 and less than 0.1 per cent overlaps respectively)
Common Reserve 30717 - Main Roads quarry for river shingle deposits (1.6 per cent overlap)
Common Reserve 9701 - De Grey Mullewa Stock Route (1.3 per cent overlap)
Common Reserves 356 and 357 - watering places for travellers and stock (0.8 and 0.3 per cent overlaps respectively)
Telstra File Notation Area 979 (0.6 per cent overlap)
State Onshore Pipeline licences 40 and 74 (0.3 per cent and less than 0.1 per cent overlap)
1 Private Land parcel (0.3 per cent overlap)
4 Private Land parcels (overlapping no more than 0.1 per cent each)
General Lease I123646 (0.1 per cent overlap)
Department of Industry and Resources section 19 area (0.1 per cent overlap)
Common Reserve 40748 – natural gas pipeline purposes (less than 0.1 per cent overlap)
National Estate Registered Site 10114 (less than 0.1% overlap)
13 Road Reserves (overlapping no more than 0.1 per cent each)

The documentation notes that there are no Aboriginal communities within the vicinity of the proposed licence.
The documentation also notes there has been significant mining and exploration activity over the area of the proposed licence. ‘Live’ tenements are one ministerial temporary reserve granted in 1970 overlapping at 5.6 per cent, two mining leases granted in 1984 and 1992 and one general purpose lease granted in 1992, each overlapping at no more than 0.2 per cent each. ‘Pending’ tenements are one mining lease and two exploration licences which overlap at no more than 0.5 per cent each. ‘Dead’ tenements include six exploration licences granted between 1993-1997 and surrendered, forfeited or expired between 1995-1999 (four overlapping between 19.2-49.8 per cent and two overlapping at 0.4 and less than 0.1 per cent), two mineral claims granted in 1972 and expired in 1983 (overlapping at 0.1 and 0.2 per cent), one mineral claim granted in 1974 and surrendered in 1976 (overlapping at less than 0.1%), and five temporary reserves granted between 1962-1970 and forfeited between 1968-1977 (overlapping between 2.3-9.7%).
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed relate to:

Providing notification to the pastoral or grazing lessee, of the grant of the licences and of certain exploration activities (conditions 5–6);
no excavation, excepting shafts, approaching closer to the North West Coastal Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the North West Coastal Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below depth of 15 metres from the natural surface (condition 7);
No interference with Geodetic Survey Stations CL 10, CL 28, DAM 483, DAM 488, Baynton, Dampier 434, Dampier 436 to 438 and Dampier 443 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 8);
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (condition 9);
No interference with the transmission line or optic cable or the installations in connection therewith, an the rights of ingress to and egress from the facility being at all times preserved to the owners thereof (condition 10);
Mining within a radius of 150 metres of any Australian Telecommunication microwave repeater station being confined to below a depth of 60 metres from the natural surface (condition 11);
No interference with the Australian Telecommunication microwave repeater station ray-line (condition 12);
No mining within 25 metres of either side of the Dampier to Perth Gas or Dampier to Bunbury Gas pipelines (‘pipeline safety zone’);
Department of Environment and Conservation restrictions and requirements in relation to activities with respect to the above pipeline safety zone (conditions 14, 16, 17 and 18);
No interference with the drainage pattern, and no parking , storage or movement of equipment or vehicles used in the course of mining within the above pipeline safety zone without the prior approval of the operator. The rights of ingress to and egress from being at all times preserved for employees, contractors and agents of the operators (conditions 15 and 19);
Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 (WA) for the purpose of protecting the Gas pipelines (condition 20);
Obtaining written consent from the Minister responsible for the Mining Act 1978 (WA) before commencing mining on Temporary Reserve 5461, Natural Gas Pipeline Purposes Reserve 40748, Watering Place for Travellers and Stock Reserves 356 and 357, and Quarry for River Shingle Deposits Reserve 30717 (condition 21); and
Consent to mine on Stock Route Reserve 9701 given subject to no mining operations being carried out which restrict the use of the reserve (condition 22).

The following relevant Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.

The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder, the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

There are no Aboriginal communities in the vicinity of the subject area but the Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents 37 registered sites partially or entirely within the area of the proposed licence:

6027 - Karratha Station Complex, Engraving, Artefacts/Scatter, Grinding patches/grooves. Permanent Register, open access, no restrictions.
8052 - Miaree Pool, Quarry, Artefacts/Scatter. Interim Register, open access, no restrictions.
8053 - Miaree Pool Stockyards, Artefacts/Scatter. Permanent Register, open access, no restrictions.
8857 - Natgas 157, Artefacts/Scatter. Permanent Register, open access, no restrictions.
9602 - Gregory Granites, Engraving, Artefacts/Scatter, Grinding patches/grooves. Permanent Register, open access, no restrictions.
10387 - Gas Pipeline 59, Artefacts/Scatter. Interim Register, open access, no restrictions.
10523 - Gas Pipeline 26, Artefacts/Scatter. Permanent Register, open access, no restrictions.
10524 - Gas Pipeline 27, Artefacts/Scatter. Interim Register, open access, no restrictions.
10525 - Gas Pipeline 28, Quarry, Artefacts/Scatter. Permanent Register, open access, no restrictions.
10681 - Western Lease 01, Artefacts/Scatter. Interim Register, open access, no restrictions.
10682 - Western Lease 02, Artefacts/Scatter. Interim Register, open access, no restrictions.
10693 - Western Lease 13, Grinding patches/grooves. Permanent Register, open access, no restrictions.
10969 - Powerline Survey 059, Artefacts/Scatter, Grinding patches/grooves. Permanent Register, open access, no restrictions.
10970 - Powerline Survey 060, Artefacts/Scatter, Grinding patches/grooves. Permanent Register, open access, no restrictions.
11817 - Wigabbie Pool, Modified Tree, Artefacts/Scatter, Camp, Hunting Place. Permanent Register, open access, no restrictions.
17999 - Pipeline Corridor 06 (Pc-06), Artefacts/Scatter. Stored data, open access, no restrictions.
18000 - Pipeline Corridor 07 (Pc-07), Artefacts/Scatter, Shell. Permanent Register, open access, no restrictions.
18001 - Pipeline Corridor 08 (Pc-08), Artefacts/Scatter. Stored data, open access, no restrictions.
18002 - Pipeline Corridor 09 (Pc-09), Artefacts/Scatter. Stored data, open access, no restrictions.
18004 - Pipeline Corridor 11 (Pc-11), Artefacts/Scatter. Stored data, open access, no restrictions.
18005 - Pipeline Corridor 12 (Pc-12), Artefacts/Scatter. Stored data, open access, no restrictions.
18006 - Pipeline Corridor 13 (Pc-13), Artefacts/Scatter. Stored data, open access, no restrictions.
18088 - Maitland River, Ceremonial, Mythological, Historical, Archaeological Deposit, Plant Resource, Camp, Shell, Hunting Place, Named Place, Water Source. Stored data, closed access, no restrictions.
18089 - Yanyare River, Ceremonial, Mythological, Historical, Plant Resource, Camp, Hunting Place. Stored data, closed access, no restrictions.
18096 - Yukulyum Spring, Ceremonial, Mythological, Historical, Hunting Place, Water Source. Permanent register, closed access, no restrictions.
18097 - Mullewa Stock Route Camp, Artefacts/Scatter, Grinding patches/grooves, Camp. Permanent register, closed access, no restrictions.
21363 - Maitland River Quarry, Quarry, Artefacts/Scatter, Archaeological Deposit. Permanent Register, open access, no restrictions.
21364 - Maitland River Artefact Scatter. Permanent Register, open access, no restrictions.
21365 - Maitland River Artefact Scatter 2. Permanent Register, open access, no restrictions.

21366 - Maitland River Artefact Scatter 3. Permanent Register, open access, no restrictions.
21367 - Maitland River Artefact Scatter 4. Permanent Register, open access, no restrictions.
21368 - Maitland River Quarry 2, Quarry, Artefacts/Scatter. Permanent Register, open access, no restrictions.
21369 - Maitland River Isolated Artefacts. Stored data, open access, no restrictions.
21583 – Dampier-Bunbury Gas Pipeline Isolated Artefacts. Stored data, open access, no restrictions.
21672 - Edl Maitland/ Fs04-2, Artefacts/Scatter. Interim Register, open access, no restrictions.
21675 - Edl Maitland/ Fs04-5, Artefacts/Scatter. Interim Register, open access, no restrictions.
22609 – Grindstone 3, Grinding patches/grooves. Interim Register, open access, no restrictions.

In support of its contentions, the native title party’s submission includes the affidavit of Wilfred Hicks dated 3 February 2007 made in the following terms:
‘I Wilfred Hicks of Unit 4, 29 Sholl Street, Roebourne, Western Australia, Pensioner make oath and say as follows:
1.I am the objector in this matter and a named claimant in the Wong-Goo-Tt-Oo Native Title Group. I instructed my solicitors to lodge this objection on behalf of the Wong-Goo-Tt-Oo Group as a whole and am authorised by the Wong Goo-Tt-Oo Group to swear this affidavit on their behalf
2.I make this affidavit in support of the Statement of Contentions that have been filed in relation to the application for an exploration license over tenement E47/1309 by Red River Resources Ltd.
3.The ancestors of the Wong-Goo-Tt-Oo Group were the traditional owners of the Karratha Station area and held the Dreaming stories and songlines for that area.
4.One story relates to the creation of the Maitland and Yanyare Rivers and the ancestral site of Thaluntha, all of which are within the tenements, as are other sacred and significant aboriginal sites.
5.Rock art in or near the tenement relates to these stories, as also does an ancient rock quarry site there.
6.Because the Wong-Goo-Tt-Oo Group had had a long association with this area it has been our custom to visit areas around Karratha Station and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.
7.If the proposed tenement is granted I am concerned that exploration activities will lead to the evacuation of the area by wild game and vegetable foods and fruits will inevitably be destroyed, which will result in us not being able to carry out our traditional activities.
8.Our links with our traditional lands are both spiritual and physical. The spiritual link is evidenced by physical activities on the land. If those activities are curtailed or prevented, then our spiritual link is broken. Once terminated, our group’s social cohesion, based as it is upon the spiritual dimension, may disintegrate.
9.I am aware of significant sites located within the proposed tenement.
10.I have not yet had the opportunity to conduct a detailed inspection of this area and it has not been possible to obtain the assistance of any experts in identifying sites in this area.
11.I am extremely worried about what may happen to our land, and any sites that are on may be destroyed if the grantee party does not consult us before commencing work in this area.
12.Through our solicitors, the Wong-Goo-Tt-Oo Group have presented a proposed heritage agreement to Red River Resources Ltd which would provide for a mechanism to protect areas or sites of particular significance to us. This agreement would also define for all the parties what we consider is a major disturbance to the land. Red River Resources Ltd has not entered into this agreement with us.’
The evidence of Mr Hicks is uncontested and I accept it. Mr Hicks is one of the persons comprising the applicant for native title and I accept that he has authority to speak on behalf of the native title party.

Is Mr Hicks a native title holder for the purpose of s 237?

Some of Mr Hicks’ evidence relates to areas outside of the area of the Wong-goo-tt-oo claim but within the area of the Ngarluma/Yindjibarndi determination. The Maitland River at the closest point is approximately one kilometre to the east of the Wong-goo-tt-oo claim boundary at the point it traverses the proposed licence area. The Karratha Station homestead is on the Maitland River but some six kilometres from the Wong-goo-tt-oo claim boundary. However, the evidence is clear that the Karratha Station pastoral lease overlaps the proposed licence area by 65.2 per cent and that a significant part of the pastoral lease extends to that part of the proposed licence area covered by the Wong-goo-tt-oo claim.
The question arises whether the Tribunal can have regard to evidence relating to the area of Ngarluma/Yindjibarndi determination but outside the Wong-goo-tt-oo claim area. In The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 & WO05/48 [2006] NNTTA 74 (13 June 2006), Hon C J Sumner at [60]-[74] (‘Miriuwung Gajerrong/Seaward Holdings’) the Tribunal dealt with a situation where the proposed tenement area was only covered by 6.36 per cent of the native title determination and the balance of the tenement was not subject to either a determination or registered claim.
The Tribunal found that this small overlap was sufficient to give a prescribed body corporate (or registered claimant) status as a native title party to lodge an objection to the expedited procedure but that the right to object does not mean that on the balance of the tenement the Tribunal was required to assume that native title rights and interests exist or make a decision that they do exist. With respect to s 237 the Tribunal found that the relevant land and waters are the area of the proposed tenement but only that part of the area for which there are also holders of native title. The Tribunal accepts that in the absence of evidence to the contrary registered native title claimants are holders of native title for the purpose of s 237.
The present matter has in common with Miriuwung Gajerrong/Seaward Holdings that Mr Hicks has status as a native title party because his registered claim partially covers the proposed licence area. However, that case was different from the present one in that for the balance of the area there is a determination of who are the native title holders. The question arises whether Mr Hicks is in these circumstances a native title holder in respect of the Ngarluma/Yindjibarndi determined area. The Federal Court determination has left open the possibility that at least some of the Wong-goo-tt-oo claim group are native title holders by virtue of being Ngarluma/Yindjibarndi people. Had this not happened it would have been clear that the Wong-goo-tt-oo native title party were only to be regarded as holders of native title over the area of their registered claim and not the area of the Ngarluma/Yindjibarndi determination. If there had been no evidence to suggest that Mr Hicks was part of the Ngarluma/Yindjibarndi people then it would not have been possible to regard him as a native title holder for the purposes of s 237. However, there is some evidence which allows me to infer that Mr Hicks is one of these persons. His affidavit evidence deals with his association with the Karratha Station pastoral lease a substantial portion of which is on the Ngarluma/Yindjibarndi determination area; and the Maitland River which is also part of it.
One potential difficulty with drawing this inference may be that Mr Hicks’ appeal appears to be based on the fact that he is not an Ngarluma/Yindjibarndi person but is Wong-goo-tt-oo. Nevertheless, I am satisfied on the evidence that it is an appropriate finding to make. Pending the appeal the Tribunal must deal with the law as it is which admits the possibility that Mr Hicks is in fact a Ngarluma/Yindjibarndi person. Based on the evidence from his affidavit of his association with the Ngarluma/Yindjibarndi determined area I am prepared to accept, for the limited purposes of this determination, that he is a native title holder for the purposes of s 237 by virtue of his being a Ngarluma/Yindjibarndi person. It is not the role of the Tribunal in right to negotiate inquiries, unless the Tribunal’s jurisdiction is challenged, to embark on extensive inquiries as to the existence of native title or make a decision on who are the holders of it (Miriuwung Gajerrong/Seaward Holdings at [68]). It is neither appropriate nor necessary in this case to embark on a detailed examination of Mr Hicks’ status vis a vis the Ngarluma/Yindjibarndi holders of native title. Pending the outcome of the appeal his evidence permits me to make a finding that he is a native title holder for the purposes of s 237 either because he is a registered claimant (over the registered claim area) or part of a group which holds native title (over the Ngarluma/Yindjibarndi determination area).

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])). The evidence suggests that the area of the proposed licence has been subject to significant prior exploration activity.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. The evidence provided is in a very similar form to that provided by Mr Hicks in Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/ Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner (‘Wilfred Hicks/Geotech’), although the place names and stories are somewhat different. In that matter the exploration licence the subject of the objection application was 60 kilometres south-westerly of Dampier and its northern boundary located a few kilometres from the southern boundary of the proposed exploration licence. The Tribunal found that the expedited procedure was attracted. For similar reasons I have come to the same conclusion in the present matter. I adopt the relevant findings from my determination Wilfred Hicks/Geotech at [16]. At paragraph 6 of his affidavit, Mr Hicks deposes that “it has been our custom to visit areas around Karratha Station and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.” As in Wilfred Hicks/Geotech the stated activity is said to have occurred in the past. The evidence of Mr Hicks of contemporary activity lacks specificity as no information is given as to the frequency or numbers of persons involved in these activities or any specific location of those activities.
The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary. While the total area of the licence will be of significant size (204.64 square kilometres) intensive ground disturbing exploration will only occur at any one time over a small area within the proposed licence. Further, the portion of Karratha station that overlaps the native title party claim, which Mr Hicks deposes is frequented by the native title party is in itself 427.18 square kilometres, approximately twice the size of the proposed licence area. Additionally, the area of the native title party's claim is much larger still (7,522 square kilometres), thus making it less likely that exploration on the licence area will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licence (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).
With respect to the native title party’s contention that large areas of traditional land will be closed off while exploration activities are carried out (Contention – para 3(ii)) I adopt the relevant findings at para [17] of Wilfred Hicks/Geotech.
As in Wilfred Hicks/Geotech the evidence establishes the existences of prior mining on pastoral activities in the area of the proposed licence. The existence of prior mining or current pastoral activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect the community or social activities of a native title party (Smith at [26]-[28]; Walley at [12]). I adopt the relevant findings at para [18] of Wilfred Hicks/Geotech) to find that the prior mining and pastoral activities make it less likely that exploration activity will have any further substantial or direct effect on the relatively limited current community or social activities of the native title party. This finding is reinforced by the fact that the area of the proposed licence is partly traversed by the West Coastal Highway and infrastructure corridors including for power and the Dampier Bunbury Gas Pipeline.
With respect to the native title party’s contentions that the spirituality of the land and social cohesion of the community will be diminished by exploration (Contentions – paras 3(iii) and (v)), I adopt my findings in Wilfred Hicks/Geotech at [19]. There is scant evidence of the current community or social activities of the native title party whether or not related to the spirituality of the land or that the social cohesion of the community will be diminished.

Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case. My finding is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are 37 sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
Mr Hicks evidence establishes that:

there is a story relating to the creation of the Maitland and Yanyare Rivers and the ancestral site of Thaluntha within the proposed licence area;
there is rock art and a rock quarry in or near the area; and
other significant sites exist within the area.

The material provided by the Government party indicates that there are 37 registered Aboriginal sites within the area of the proposed licence. Maps provided by the Government party show some of these sites and others encompass large areas of the proposed licence, in particular, corridors along the Yanyare and Maitland Rivers which intersect the proposed licence and extend along the rivers some 10 kilometres north and some 25 kilometres south outside of the proposed licence area. The fact that sites ID 18088 (Maitland River), ID 18089 (Yanyare River) and ID 18096 (Yukulyum Spring) are of a ceremonial and mythological nature, access to which is closed, strongly suggests that they are sites of particular significance to the native title party in accordance with their traditions. Both the Maitland and Yanyare Rivers are referred to by Mr Hicks as significant and I am satisfied that they are sites of the kind referred to in s 237(b). The location of the Yukulyum Spring site is less clear but the Government party says it is on the tenement area and combined with Mr Hicks’ evidence of the native title party’s association with the area and the nature of the site, I am also satisfied that this is a site of particular significance.
The status of the other sites on the Register is more problematic. Many are artefact/scatter sites with open access which in the absence of evidence from the native title party would not normally be regarded as of particular significance. Some of the other registered sites are quarry or engraving sites but it is difficult to correlate them precisely with Mr Hick’s evidence about rock art and the ancient rock quarry site. Apart from the three closed sites referred to above all the others are open which suggests there importance to the native title party is not as great. Taking all this into account, I find that there are at least three sites of particular significance to the native title party on the subject area and there may be others.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).

The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]). However, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act. The Tribunal is aware that there were negotiations between the native title party and grantee parties about a heritage agreement. These eventually broke down. The grantee party had signed a Regional Standard Heritage Agreement (‘RSHA’) (for the Pilbara Region) and sent it to the Native Title Representative Body (Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation) for the Ngarluma/Yindjibarndi who are represented by them. It is reasonable to infer that the Ngarluma/Yindjibarndi native title holders were satisfied with this agreement as no objection to the expedited procedure was lodged by them. While it appears that the grantee party was prepared to enter into another RSHA with the native title party, it was not prepared to enter into the heritage agreement the native title party proposed.
The Government party will place the following condition on the grant of the licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Wong-Goo-To-Oo People, the applicants in Federal Court application no. 6256 of 1998 (WC 98/40), such request being sent by pre-paid post to reach the Licensee’s address c/- Hetherington Exploration and Mining Services Pty Ltd, Post Office Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wong-Goo-Tt-Oo People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Land and Sea Council.’
This condition means that the native title party will have the option to enter into a heritage agreement (albeit not it’s preferred one). The RSHA process adopted by the Government party in various regions of WA after discussions with the relevant representative bodies and industry has been detailed in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Vosperton’) at [15]-[35] the relevant parts of which I adopt for the purpose of this determination.
Although the evidence of specific sites was different, the facts of Wilfred Hicks/Geotech are similar to the present matter. I adopt the relevant findings from it in paras [21]-[29]
The possible extent of the sites on the Register (taking account of the buffer zone) which are of particular significance is quite large extending for the whole length of the Maitland and Yanyare Rivers where they cross the proposed licence area. However, there is no reason to suspect they will be interfered with by exploration as the grantee party is aware of these sites as they are on the public record. It is also aware from the native title party's affidavit that there may be other unspecified sites of special significance within the area of the proposed licence.
The evidence also shows that the proposed licence area has been extensively surveyed over the years with the result that it is less likely there are large numbers of sites of significance to the native title party which are not on the Register. The DIA Aboriginal Heritage Inquiry System records 20 such survey reports dating back to at least 1972 for a number of purposes including the Dampier to Bunbury Gas Pipeline Corridor which passes through the area. Knowledge of these sites means that the grantee will be unable to avail itself of the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) if charged with an offence under it. In order to ensure that it complies with the Aboriginal Heritage Act it will be necessary for the grantee party to consult with the native title party to ensure that it avoids the sites identified by the evidence and others which may exist. I am satisfied that the presumption of regularity is applicable in this matter and that interference with sites of particular significance from the exploration activity is unlikely.
My findings are also reinforced by the fact that the determined holders of native title have not found it necessary to object to the expedited procedure and neither have the Yaburara & Mardudhunera claimants.

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

As the facts of the present matter are similar to those in Wilfred Hicks/Geotech, I adopt paras [30]-[32] of that determination and find that the grant of the proposed licence is unlikely to cause major disturbance to land or create rights which do so.

Determination

The determination of the Tribunal is that the grant of exploration licence E47/1309 to Red River Resources Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
30 March 2007