Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) on behalf of Birriliburu/ Western Australia/ Colchis Resources Pty Ltd - [2014] NNTTA 7

NATIONAL NATIVE TITLE TRIBUNAL

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) on behalf of Birriliburu/ Western Australia/ Colchis Resources Pty Ltd [2014] NNTTA 7 (17 January 2014)

Application No: WO2013/0384

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) on behalf of Birriliburu (WCD2008/002) (Birriliburu native title party)

- and –

The State of Western Australia (Government party)

- and -

Colchis Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Member Helen Shurven

Place: Perth
Date: 17 January 2014

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 - expedited procedure attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66

Cases:

Billy Patch & Others v State of Western Australia [2008] FCA 944 (‘Birriliburu’)
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362, ('Champion’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora’)
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL, NNTT WO09/1024, [2010] NNTTA 99, ('Image Resources')
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Westerm Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Harvey Murray and Others/ Western Australia/ Drew Griffin Money [2011] NNTTA 91, (‘Money’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Mark Lockyer & Others/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 (‘Mineralogy’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Representatives of the Ms Gemma Wheeler Carver, Central Desert Native Title Services

native title party:

Representatives of the Ms Jennifer O’Meara, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum

Representatives of the Mr Greg Abbott, M&M Walter Consulting
grantee party:

REASONS FOR DETERMINATION

On 28 December 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E69/2473 (‘the proposed licence’) to Colchis Resources Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The Birriliburu native title determination (WCD 2008/002) wholly overlaps the proposed licence, and is represented by the Mungarlu Ngurrarankaja Rirraunkaja (Aboriginal Corporation) (‘the native title party’). I note that the Birriliburu native title holders have been recognised by a determination of the Federal Court as holding exclusive possession native title rights and interests over the area of the proposed licence (see Birriliburu).
According to the notice:
·the proposed licence is approximately 625 square kilometres in size,
·the proposed licence is located 268 kilometres east of Mount Newman, in the Shire of Wiluna,
·native title parties had until 29 April 2013 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 28 March 2013, an objection application was lodged with the Tribunal by Mungarlu Ngurrarankaja Rirraunkaja (Aboriginal Corporation) on behalf of its members.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Parties attempted to reach agreement between approximately February and September 2013. On 12 September 2013, the Tribunal issued directions to program this matter for inquiry.
In compliance with those directions:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government party on 7 October 2013;
·the grantee party provided a statement of contentions on 18 October 2013;
·the native title parties provided a statement of contentions on 21 October 2013 together with an affidavits of Mr Timmy Patterson affirmed 16 October 2013 and Ms Lena Long sworn 25 October 2013, respectively; and
·the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions in response to the contentions of the native title party on 18 November 2013.
The native title parties indicated that they would not be pursuing a determination in respect of s 237(c) of the Act. As such I will be considering information and evidence relating to s 237(a) and (b) only in this determination.
I consider this a matter which can be determined ‘on the papers’ as provided for in s 151 of the Act, and I note that no party has requested otherwise.
On 3 January 2014, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no objections were received in response.
On 6 January 2014, I was appointed as the Member for the purpose of determination of these inquiries.

Legal principles

Section 237(a) 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.
...

In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) has since been amended.
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]-[41] (see also Parker 1; Parker 2). I also adopt those set out by Deputy President Sosso in Silver.

Evidence and information provided about the proposed act

Government party

The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA) (now known as the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
I note the underlying land tenure of the proposed licence comprises a Land Act Reserve (UNN 1008) at 30 per cent, and vacant Crown land at 70 per cent.
There are two dead tenements affected; one an exploration licence granted in 2002 and surrendered in 2007 (which encroached the proposed licence 17 per cent), and the other a temporary reserve granted in 1959 and cancelled in 1964 (which encroached the proposed licence by 100 per cent).
The quick appraisal documents show the services affected in relation to this proposed licence include: three tracks; two non-perennial lakes; 29 minor watercourses; and two Geodetic Survey Stations.
The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The following additional conditions would also be imposed on the proposed licence:
5. No exploration activities being carried out on Canning Stock Route Reserves 1008 and 1015 which restrict the use of the reserve.
6. No interference with Geodetic Survey Station SSM-FX28, SSM-FX30 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.   The Licensee’s attention is drawn to the provisions of the:
·      Water Conservation Act, 1976
·      Rights in Water and Irrigation Act, 1914
·      Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·      Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·     50 metres from the outer-most water dependent vegetation of any perennial waterway; and
·     30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
8.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The Government party states that it will also place the following condition (‘proposed RSHA condition’) on the grant of the proposed licence (at 17):
In respect of the area covered by the licence the Licensee, if so requested in writing by the Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation, the determined native title holders for the Birriliburu People, the applicants in Federal Court application no. WAD6284/1998 (WC98/68), such request being sent by pre-paid post to reach the Licensee’s address, c/-M & M Walter Consulting, P O Box 8197, Subiaco East, WA 6008, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation the Central Desert Regional Standard Heritage Agreement (‘RSHA’).

Grantee party

The grantee party makes brief submissions in relation to each subsection of s 237 of the Act, but otherwise indicates that it seeks to rely on the State’s submissions. In relation to s 237(a), the grantee party states it will not exclude any community activities upon the proposed licence unless during a particular activity it is considered temporarily unsafe for the conduct of community activities (at 1). In relation to s 237(b), the grantee party indicates it will comply with the AHA and has never been prosecuted under the AHA (at 2.3).

Native title party

The native title party submitted contentions in relation to s 237(a) and (b) of the Act, and confirmed that they do not pursue the objection in relation to s 237(c) (at 1.4).
In regard to s 237(a), the native title party contends the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title party in relation to the land concerned because:
·the Native Title Act should be beneficially construed (at 2.2 – 2.3);
·evidence of regular travelling, camping and hunting for various traditional activities is sufficient to sustain an objection under section 237(a) (at 3.9) and they cite a number of decisions in support of this;
·off-site activities can be taken into account in consideration of interference with the carrying on of community or social activities if there is a clear nexus between those activities and the issue being considered (at 3.10);
·there is a community in the area and point to the Wiluna registered claim (now determined) and the Birriliburu determined claim (3.11-3.12). [I note that Tribunal mapping does not identify any particular community specifically on or near the proposed license, and the native title party contends the notion of community should be construed broadly];
·it will restrict access to water and hunting (at 3.12); and
·it will interference with intergenerational transfer of knowledge (at 3.13).
In their objection application, the native title party asserted that activities such as hunting (at 7(vi)), gathering seeds etc (at 7(vii), gathering wood (at 7(vii), and religious and cultural activities (at 7(x)) were likely to be interfered with by activities of the grantee party. However, it appears that the activities of gathering seeds etc, and wood, were not pursued in the contentions and affidavit material.
Ms Long and Mr Patterson have provided affidavits, and state that they are traditional owners for Birriliburu country and members of Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC. Mr Patterson also indicates that Birriliburu and Martu native title holders have the same law and culture, and that he ‘can talk for both sides’ (at para 1). I accept Ms Long and Mr Patterson have the authority to speak for this area on behalf of the native title party. The native title party contentions refer to Ms Long’s and Mr Patterson’s affidavits and specifically that:
·The community of native title holders carry on community and social activities in accordance with their traditional law and custom in the area of the proposed licence, including travelling to Well No 15, camping, hunting, caring for country activities and land management (Ms Long’s affidavit at 11, 12, 19 and 20, and Mr Patterson’s affidavit at 11, 15);
·Activities of the grantee party over the proposed licence area will interfere with the ability of the native title holders to conduct community and social activities within the proposed licence area, including hunting and access to water (Ms Long’s affidavit at 12 and 19 and Mr Patterson’s affidavit at 15);
·The right to negotiate is required so that meaningful consultation and negotiation between the native title party and the grantee party occurs to ensure that community and social activities are not likely to be interfered with, including those involving access to soaks, waterholes and hunting grounds, other caring for country activities and inter-generational transfer activities (Ms Long’s affidavit at 18, 20 and 21 and Mr Patterson’s affidavit at 12 and 13).
In relation to s 237(b), the native title party notes concerns about the State’s regulatory regime, citing, for example, the WA Auditor General’s report entitled Ensuring Compliance with Conditions on Mining dated September 2011 (at 2.17-2.23). The native title party suggest I adopt paragraphs of the decision in Karajarri (at 2.19-2.23), however, I have dealt with such a request in previous decisions, and each inquiry is presented with evidence which needs to be carefully and discretely evaluated. The Tribunal is not absolved from undertaking its own risk assessment in each matter (see Parker 1 at [13] and [18]).
The native title party also suggest the Tribunal should turn away from the decision in a matter they refer to as 'Champion' (for example, at 2.14 and 2.22), however, without a clear citation for that matter, it is not clear which decision of that name they are referring to. I may infer, from the context of the reference, it is Champion v Western Australia [2005] NNTTA 1 which is the subject of their discussion ('Champion’), however, even if this is the case, the Tribunal must still consider, based on the facts of a particular matter, and the nature and extent of sites of particular significance, whether the State's protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The particular site referred to in Ms Long’s and Mr Patterson’s affidavits is Well No 15, on the Canning Stock Route. Ms Long’s affidavit also refers to Well No 7, where she was born, which is outside the proposed licence area. I note that, according to Tribunal mapping, Well No 15 is on the westerly border of the proposed licence, and the Stock Route extends in a diagonal direction from approximately the middle of the proposed licence to the northern portion of that licence. I note also the Government party condition that no activities are to be carried out on the Stock Route reserves, and that these reserves cover at least 30 per cent of the proposed licence. It appears, from the native title party evidence, that much of their social and community activity occurs on or near the Stock Route, and the native title party contentions also indicate that Well No 15 is on the Stock Route (at 3.11(a)).

Considering the Evidence

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
I agree with the native title reply (at 2.1) that there appears to be no pastoral activity in relation to this proposed licence, and as such I do not place any weight on the Government party contentions which refer to any impact of such previous activities on the activities of the native title party. In addition, there is evidence of only minimal previous or current exploration or mining activities.
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party has not provided evidence of its proposed activities, so I am entitled to assume it will exercise the full suite of rights available to it under s 66 of the Mining Act.
The native title party’s contentions and evidence in relation to s 237(a) are outlined at [24] – [26] above. Ms Long states that ‘[y]oung people today still go out to Well No 15. Nearly every time the rangers go out past, they stop and camp. They look for animals and we get a kangaroo if we see one. When we and the young people are at Well No 15, we walk around and see if anything’s been damaged’ (at 18-19). Mr Patterson similarly states that ‘[t]he rangers, young fellas, still get out to Well No 15 to look after it and hunt kangaroos’ (at 15). He also states that ‘Martu people paint the wells on the stocks route all the time, because they come from the Tjukurrpa’ (at 6). I note that apart from these examples, most of Ms Long’s and Mr Patterson’s affidavits appear to largely concern historical activities associated with the proposed licence, and Well No 15 in particular, as opposed to present activities. In regard to the evidence of current activities provided by the deponents, there is no evidence of how frequently members of the native title party travel to Well No 15 for camping and hunting purposes, or how frequently they paint the wells on the stock routes within the proposed licence area. Nevertheless, on the basis of the evidence provided, I accept that that members of the native title party currently travel to Well No 15, and camp and hunt in that area of the proposed licence on an occasional basis.
The Government party contend that the responsibility to look after and care for country is not an activity to which s 237(a) of the Act applies (at 45(a)), as asserted by the native title party. I consider that this would depend on the specific evidence provided; in the present case, there is insufficient detail as to what this obligation involves with specific reference to present community and social activities, including the nature of activities that are carried out, where these occur, and how often. I do agree with the Government party that the mere assertion there is a source of water within the proposed licence area is not of itself evidence of community or social activities (at 45(b)), but note that further evidence may establish the more particular community and social activities that the existence of the water source is associated with. As I have already stated, I accept that there is evidence that members of the native title party camp and hunt in the region of Well No 15.
I agree with the Government party (at 48) that to the extent that the evidence demonstrates that members of the native title parties currently carry out any community or social activities in the area of the proposed licence, there is not likely to be direct interference with those activities for the following reasons:
• the grantee party has indicated its willingness to enter into an RSHA agreement with the native title party. (However, I do agree with the native title party reply (at 3.1-3.3) that the RSHA goes more to heritage issues under s 237(b) than to social and community activities under s 237(a) of the Act);
• the proposed licence area has been subject to prior mineral exploration and possibly mining activity, which are likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area. (However, I do note, as the native title party indicate in their reply to the native title party’s contentions (at 2.2), that prior mineral exploration has been minimal, as noted earlier in this decision);
• hunting and mineral exploration activity are by their nature inherently capable of coexistence; and
• the low-scale exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon access to the proposed licence area. (However, I note the grantee party has not outlined in any detail its proposed activities, and so I have assumed it will use the proposed licence to the full extent available under the grant).
The Government party also note there are no Aboriginal communities in the area (at 7), however, this is disputed by the native title party (in their reply at 2.4 and contentions at 3.10(a)), who note that the Birriliburu native title holders have been recognised as holding exclusive possession rights and interests over the proposed licence area (see Birriliburu). With reference to the information on the DAA register regarding the location of Aboriginal communities, I agree with the Government party that there is no recorded permanent community on that register in or near the relevant area, and take this into account. I also accept the native title party contention that the determined group do form a community in the sense that they hold exclusive determined rights over much of the area which was subject to the native title claim. However, that does not necessarily mean activities of that community are especially held on this proposed licence in such a way that they are likely to be interfered with by activities of the grantee party. That requires a weighing up of the available evidence, and not just an assertion that a community does social and community activities in the proposed licence area.
As noted above, the evidence and information provided in relation to s 237(a) of the Act is quite broad and does not outline the frequency of activities. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investments Corporation at [14]).
In addition, the size of the determined area is approximately 66,558 square kilometres and the size of the proposed licence is approximately 624 square kilometres. Consistent with previous Tribunal decisions, including the Hon C J Sumner’s reasoning in Image Resources, I find that the size of the proposed licence area in the context of the much larger native title determined area makes it less likely that the proposed exploration activity will interfere with whatever community or social activities are carried out by the native title party.
In the circumstances, taking into account the evidence available, including that much of the evidence is focussed on activities undertaken on the Stock Route, and around Well No 15 which appears to be on the Stock Route, I conclude that there is unlikely to be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DAA documentation that there are no sites within the proposed tenement. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the areas of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party’s evidence in relation to s 237(b) of the Act is outlined at [27] above.
Ms Long’s affidavit states that her father and the old people lived at Well No 15 (at 6-7). She states that Well No 15 was a soak before it was a well, and so there may be ‘some old stumps where the fire has been and also grinding stones there’ (at 8). Ms Long tells a story of ‘Old Mr Stephen and another man hid at Well No 15 when they being chased by white fellas’ (at 8). She states that ‘[her] father, Timmy Patterson’s father, old Mr Stephen and Annette’s father, Mr William’s, would have been the people that dug the well for the Canning Stock Route’ (at 9), and notes that Well No 15 ‘was a camping area for old people passing from Durban Springs and Kalvan Range coming to Wiluna’ (at 10).
Mr Patterson’s affidavit states that Well No 15 ‘is a sacred place because the old people lived there’ (at 11). He states that ‘[t]here’s a story that runs up that stock route, past Well No 15. Wati Kutjarra wandering around that country the tenement, all over, marking places as they go, giving them names. That whitefella Canning, he grabbed the Martu mob and made them show him the water, so the stock route follows the Martu way of walking, where the soaks are important from the Tjukurrpa’ (at 6). He states that ‘[t]here are songs for all the places and claypans throughout that country. Those places are all connected, from soak to soak, rockhole to rockhole. It is the songline, the Tjukurrpa that connects them’ (at 7). Mr Patterson states that ‘[t]he old people walked around Well No 15. They were travelling here and there, going across to Kalvan Range and going back through Gilles’ (at 8). He also notes that his father camped at Well No 15 ‘when he was a younger fella’, stating that ‘[t]here was a big mob there’ (at 10), and that the grinding stones his father used are still there (at 11).
The Government party states that the effect of the native title party’s affidavits is to establish that there is an important soak, Well No 15, where the old people used to live and where today some people hunt kangaroos and camp (at 27), and accepts that there may be sufficient evidence to demonstrate that Well No 15 is of particular significance (at 62). On the basis of the affidavit evidence provided, I accept that Well No 15 is a site of particular significance within the meaning of s 237(b) of the Act, despite noting that it is not a DAA registered site. In relation to whether that area of particular significance is likely to be interfered with for the purposes of s 237(b), I note that it is a clearly identified area and the grantee party are on notice of its significance.
The Government party argues there is very little detail as to the location or significance of other claimed tjukurrpa sites within the proposed licence area (at 26 and 64). I agree that the evidence does not establish the existence of any other sites of particular significance. The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]).
The native title party contentions argue that 'in areas where a proposed future act has been demonstrated to be site rich, it is incumbent upon the Grantee Party to lead some evidence to provide basis upon which the NNTT might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas' (at 2.13).
The term site rich is to be deciphered carefully. In Mineralogy, the use of site rich was construed by Deputy President Sosso (at [19] to [21]) as follows:
...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is 'site rich'. That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is 'site rich'.
It would be an unusual circumstance for the Tribunal to make a finding that an area is 'site rich' without direct evidence from a person or persons from the relevant native title party who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the native title party, or to a family or other sub-group within the wider native title party. Also, in Geotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance, and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Geotech International at [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstances, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
Consequently, I conclude that the term 'site rich' is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party. I have no doubt that the area of Well No 15 and the area of the Stock Route are of importance to the native title party. As noted at [45] above, I accept that Well No 15 is a site of particular significance to the native title party, for the reasons outlined in the affidavit evidence as to its special significance. I could not say there is sufficient evidence to conclude the Stock Route itself, in relation to the portion on this proposed licence, or the other sites and areas mentioned by the native title party are sites of particular significance.
In relation to the native title party’s contentions about the adequacy of the State’s regulatory regime, the Government party states it does not propose to make further detailed contentions in response to this issue as the Tribunal has already dealt with it in a number of previous inquiries (at 58). I note and agree with the Tribunal’s previous findings in this regard, that both the existence of the AHA and the availability of the RSHA give rise to a presumption that sites will be protected, and the Auditor General’s Report does not necessarily affect this presumption unless evidence indicates that it should (see for example, Money).
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Butcher Cherel (at [81]-[91])). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
I also note that Ms Long’s affidavit (at 14) states that ‘[b]efore the mining companies come onto the land, they got to go to the traditional owners. They got to get permission. The traditional owners will take them out on a survey because they are our sacred grounds’. Similarly, Mr Patterson’s affidavit (at 12) states ‘[b]efore people go [to the proposed licence], they have to go to the traditional owners. I would get in trouble if I let a mining company drive through or do work out there without permission. The elders would growl at us. This is our sacred place. They can’t do anything without permission from the traditional owners’ (at 12). However, as noted in previous decisions of the Tribunal, native title parties do not have a veto in relation to activities of any grantee party. This is a well established principle in relation to native title matters.
In drawing my conclusions in this matter I have also had regard to the following:

To the extent that Well No 15 is a site of particular significance, the grantee party is aware of the existence of that site and of its legal obligation in respect of that site;
Well No 15 is on the Stock Route, and there are conditions which restrict the grantee party activities on the Stock Route;

The native title party has the opportunity of invoking the proposed RSHA condition which the Government party intends to place on the proposed licence;
There is insufficient evidence of a specific area or site to which the tjukurrpa relates; and
The AHA and its associated processes are likely to prevent interference with any area or site of particular significance to the native title holders.

In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(b) of the Act in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E69/2473 to Colchis Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
17 January 2014