Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another

NATIONAL NATIVE TITLE TRIBUNAL

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (4 February 2015)

Application Nos: WO2013/1099, WO2013/1100, WO2013/1101, WO2013/1102, WO2013/1107, WO2013/1108, WO2013/1109

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC (first native title party)

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Billy Atkins and Others on behalf of Gingirana (WC2006/002) (second native title party)

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Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (third native title party)

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FMG Pilbara Pty Ltd (grantee party)

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The State of Western Australia (Government party)

DETERMINATION THAT ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Mr JR McNamara, Member
Place:  Brisbane
Date:  4 February 2015

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – video evidence – gender-restricted evidence – non-disclosure directions – failure to annex maps referred to in affidavits – relevance of grantee party’s intentions – whether acts are likely to interfere directly with the carrying on of community or social activities – whether interference involves objective and subjective elements – Tribunal must have regard to nature of the activity – whether acts are likely to interfere with sites of particular significance – adoption of previous findings of the Tribunal – whether interference determined by reference to traditions of the native title party – whether interference must be physical – whether an area or site must have physical form – area or site must be capable of definition by reference to geospatial criteria – whether acts are likely to involve major disturbance to land or waters – area of environmental and cultural significance – expedited procedure not attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 30(1), 31, 32(3), 151(2), 155, 162(2), 237
Mining Act 1978 (WA), s 58(1)(b)
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:BP (deceased) and Others on behalf of the Birriliburu People v Western Australia [2008] FCA 944 (‘BP v Western Australia’)
BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter [2012] NNTTA 32 (‘BW v Baxter’)
BW (deceased) & Ors on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa [2007] NNTTA 21 (‘BW v Ling’)
Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd [2014] NNTTA 32 (‘Sturt v Baracus’)
Briginshaw v Briginshaw [1938] HCA 34; (1998) 60 CLR 336 (‘Briginshaw v Briginshaw’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Cadbury UK Ltd v Registrar of Trade Marks (2008) 107 ALD 316; [2008] FCA 1126 (‘Cadbury UK v Registrar of Trade Marks’)
Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)
Cheinmora v Heron Resources Ltd (2005) 196 FLR 250; [2005] NNTTA 99 (‘Cheinmora v Heron Resources’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Crowe v Western Australia (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109 (‘Barnes v Copley’)
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50 (‘Barnes v Pirkopf’)
Dann v Western Australia (1997) 74 FCR 391; (1997) FCA 332 (‘Dann v Western Australia’)
Drury v Western Australia (2002) 170 FLR 182; [2002] NNTTA 171 (‘Drury v Western Australia’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
George Huddleston, Lenny Liddle, Paddy Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane/Northern Territory/Stephen Darryl Moffatt [2002] NNTTA 16 (‘Huddleston v Moffatt’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Kanak v National Native Title Tribunal (1995) 61 FCR 103; [1995] FCA 1624 (‘Kanak v National Native Title Tribunal’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri Traditional Lands Association v ASJ Resources’)
Kevin Peter Walley on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Brosnan [2001] NNTTA 78 (‘Walley v Brosnan’)
Leonne Velickovic/Western Australia/Glen Allen Sinclair [2001] NNTTA 14 (‘Velickovic v Sinclair’)
Leonne Velickovic on behalf of Widji People/Westex Resources Pty Ltd/Western Australia [2004] NNTTA 13 (‘Velickovic v Westex Resources’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineraology Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)
McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 57 (‘McDonald v Director-General of Social Security’)
Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’)
Mt Gingee Munjie Resources Pty Ltd v Victoria (2003) 182 FLR 375; [2003] NNTTA 125 (‘Mt Gingee Munjie Resources v Victoria’)
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v Zenith Minerals Ltd [2012] NNTTA 77 (‘Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals’)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 (‘Neat Holdings v Karajan Holdings’)
Re a Solicitor [1993] QB 69 (‘Re a Solicitor’)
Re Nyungah People (1996) 132 FLR 54; [1996] NNTTA 18 (‘Re Nyungah People’)
Re Smith (1995) 128 FLR 300; [1995] NNTTA 31 (‘Re Smith’)
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd [2003] NNTTA 62 (‘Boddington v Bacome’)
Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (‘Rosas v Northern Territory’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Strategic Minerals Corporation Nl/Allan Kynuna, Darren Kynuna, John Keyes, Lavin Keyes, Lawrence Keyes, Malcolm Keyes, Helen Smith on behalf of the Woolgar Group/Queensland [2003] NNTTA 83 (‘Strategic Minerals Corporation v Kynuna’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’)
Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (‘Weld Range Metals v Western Australia’)
Western Australia/Glen Griffin Venn Money/Jack Britten & Ors [2011] NNTTA 53 (‘Western Australia v Britten’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’)
WF (deceased) and Others on behalf of Wiluna v Tropical Resources Pty Ltd and Another [2014] NNTTA 104 (‘WF v Tropical Resources’)
WF (deceased) and Others on behalf of Wiluna v Great Western Exploration Ltd and Another [2014] NNTTA 107 (‘WF v Great Western Exploration’)
WF (deceased) and others on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd [2012] NNTTA 115 (‘WF v Marford Group’)
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’)
WF (deceased) & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170 (‘WF v Kingx’)
WF (deceased) on behalf of the Wiluna People v Western Australia [2013] FCA 755 (‘WF v Western Australia’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 (‘Goonack v Geotech International’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara 1’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara 2’)
Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42 (‘Young v Western Australia’)

Representatives of the Mr Malcolm O’Dell, Central Desert Native Title Services Limited

native title parties: Mr Michael Allbrook, Central Desert Native Title Services Limited
Ms Irene Assumpter Akumu, Central Desert Native Title Services Limited

Representatives of the Mr John Carroll, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum

Representative of the Mr Ken Green, Green Legal
grantee party:

REASONS FOR DETERMINATION

On 1 July 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E69/2722, E69/2726 and E69/2727 (‘the proposed licences’) to FMG Pilbara Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grants to be acts attracting the expedited procedure (that is, that the proposed licences are acts that can be done without the normal negotiations required by s 31 of the Act). In accordance with s 29(4)(a) of the Act, the notice specifies the ‘notification day’ as 3 July 2013.
The notice provides the following information in relation to the size and location of the proposed licences:
·E69/2722 – 83 graticular blocks (approximately 232 square kilometres), 161 kilometres northerly of Wiluna in the Shire of Wiluna.
·E69/2726 – 66 graticular blocks (approximately 185 square kilometres), 140 kilometres northerly of Wiluna in the Shire of Wiluna.
·E69/2727 – 59 graticular blocks (approximately 165 square kilometres), 139 kilometres northerly of Wiluna in the Shire of Wiluna.
Each of the proposed licences encroaches on land and waters which are the subject of a determination of native title (see BP v Western Australia). Pursuant to the determination, Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC (‘the first native title party’) holds exclusive native title rights and interests in the area on trust for the Birriliburu native title holders. In addition to the determination area, E69/2722 also encroaches on the Gingirana native title claim (WC2006/002 – registered from 13 April 2006). E69/2726 also encroaches on the Wiluna native title claim (WC1999/024 – registered from 24 September 1999) and E69/2727 encroaches on both the Gingirana and Wiluna claims. I note that a determination of native title was made in the Federal Court on 29 July 2013 in respect of the Wiluna claim (see WF v Western Australia) and Tarlka Matuwa Piarku Aboriginal Corporation was subsequently registered as the prescribed body corporate on 27 January 2015.
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within four months of the notification day (see s 32(3) of the Act). As explained by s 32(3) and ss 30(1)(a) and (b), an objection may be made by:
(a) any registered native title body corporate (‘RNTBC’) in respect of the relevant land or waters who is either:
(i)registered as an RNTBC at three months after the notification day; or
(ii)if the RNTBC is registered after that three-month period, the RNTBC has resulted from a claim that was registered before the end of three months from the notification day; or
(b) any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day, provided the claim was filed before the end of three months from the notification day.
On 1 November 2013, the first native title party filed objections with the Tribunal in relation to each of the proposed licences. Objections were also received from the persons comprising the applicant in the Gingirana claim (‘the second native title party’) in relation to E69/2722 and E69/2726 and from the persons comprising the applicant in the Wiluna claim in relation to E69/2726 and E69/2727. Following its nomination as the prescribed body corporate, the native title rights and interests of the Wiluna common law holders are now held in trust by Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (‘the third native title party’).
Preliminary conferences were held in each of the matters on 3 December 2013. At the preliminary conferences, representatives for the grantee party informed the Tribunal that it was willing to negotiate with the first and second native title parties, and had been involved in discussions with the third native title party around the proposed licences and other matters. The matters were therefore adjourned to a status conference on 9 April 2014. At the status conference, the grantee party representative indicated it was still negotiating with the third native title party, and the matter was programmed for inquiry. In relation to the objections made by the first native title party, the grantee party representative asked that the matters proceed to inquiry and the matter was programmed accordingly. In relation to the objections made by the second native title party, the matter was adjourned to a further status conference to allow for further negotiation. When the matters were reconvened on 7 May 2014, the grantee party requested that they also proceed to inquiry and directions were subsequently issued by Member Shurven, who had been appointed to conduct the inquiry.
In compliance with the directions, the Government party provided supporting documentary evidence on 29 April 2014. On 21 May 2014, a representative for the first native title party contacted the Tribunal by email indicating its intention to seek directions pursuant to s 155 of the Act for the non-disclosure of culturally sensitive information it intended to produce in support of the objection. The email also requested the appointment of a male Tribunal member to conduct the inquiry, given the gender-restricted nature of the information. Consequently, I was appointed by President Webb QC to hear and determine the objections on 29 May 2014.
The native title parties provided statements of contentions on 18 June 2014 (the first native title party filed a further, amended statement of contentions on 19 June 2014). These documents were accompanied by a proposed minute of non-disclosure directions relating to several documents intended to be filed by the first native title party. On the basis of the proposed minute, the Tribunal issued interim directions on 27 June 2014 for the purpose of enabling parties to view the material and make submissions on the proposed directions. After receiving submissions from parties, I determined that non-disclosure directions should be made.
Given the delay occasioned by the need to resolve the non-disclosure issue, I allowed an extension to the directions for inquiry on 28 July 2014. In compliance with the amended directions, the grantee party filed a statement of contentions on 28 August 2014, together with the affidavit of Thomas James Weaver affirmed 28 August 2014, and the Government party provided its statement of contentions on 3 September 2014. The first native title party filed a statement of contentions in reply on 24 September 2014, accompanied by the affidavit of Irene Assumpter Akumu affirmed 24 September 2014.
I have considered the material provided to the Tribunal in relation to the objections and I am satisfied that it is appropriate to deal with these matters ‘on the papers’ (that is, without a formal hearing) pursuant to s 151(2) of the Act.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

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

In determining whether a proposed future act attracts the expedited procedure, the Tribunal is required to make a predictive assessment of the effect the proposed future act is likely to have on the matters identified in s 237. Specifically, the Tribunal must assess the likelihood of the proposed future act giving rise to interference or disturbance of the kind referred to in that section. That assessment is not made on the balance of probabilities, but requires the Tribunal to consider whether there is a real risk or chance of interference or major disturbance arising from the future act (see Smith v Western Australia at [23]; Walley v Western Australia at [8]; Little v Western Australia at [68]-[72]). Though the Act does not impose an onus of proof on any party, the Tribunal is required to adopt a commonsense approach to the evidence (see Ward v Western Australia at 215-218).
In Walley v Western Australia, Deputy President Sumner considered the nature of exploration and prospecting licences, including the activities permitted by such licences, the limits placed on those activities and the standard conditions imposed by the Government party (at [24]-[35]). I adopt Deputy President Sumner’s findings for the purpose of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the standard conditions imposed on exploration licences have been strengthened (see Tullock v Western Australia at [10]-[12]).
In relation to s 237(a), the following observations can be made:
·The term ‘community and social activities’ is concerned with physical activities. The Tribunal may consider the non-physical or spiritual aspects of the native title party’s community or social activities, but only to the extent those aspects are rooted in physical activities (see Silver v Northern Territory at [50]-[62]; Tullock v Western Australia at [65]-[77]).
·The community and social activities must arise from registered native title rights and interests (see Tullock v Western Australia at [93]-[102]).
·The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]).
·The term ‘social activities’ can encompass activities carried on by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
·The Tribunal must determine whether the proposed future act is likely to be the proximate cause of interference (see Smith v Western Australia at 451).
·The level of interference with community and social activities must be substantial rather than trivial (see Smith v Western Australia at 451).
·The inquiry under s 237(a) is contextual, and the Tribunal may have regard to other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at 451).

With respect to issues arising under s 237(b), I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources).
·The interference contemplated by s 237(b) must be evaluated in the context of the particular area or site and the laws and customs in relation to that area or site (see FMG Pilbara v Yindjibarndi Aboriginal Corporation at [79]; Silver v Northern Territory at [88]).
·The Tribunal may take into account activities that are likely to interfere with sites or areas outside the boundaries of the proposed future act or claim area, so long as there is a clear nexus between the activities and the issues being considered under s 237 (see Silver v Northern Territory at [35]).
On the interaction between s 237(b) and the site protection regime established under the Aboriginal Heritage Act 1972 (WA) (‘AHA’), I adopt the findings made by the Deputy President Sumner in Parker v Ammon at [31]–[38] and [40]-[41] and those of Member Shurven in Karajarri Traditional Lands Association v ASJ Resources at [48]-[53], [84]-[87] and [91]. I also adopt the findings of Member O’Dea in Cherel v Faustus Nominees at [81]-[91].
With respect to s 237(c), I make the following observations:
·Section 237(c) requires a consideration of the effect of the future act and any rights created by the future act (see Little v Oriole Resources at [41]).
·The assessment of whether the future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources at [51]).
·The term ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (see Little v Oriole Resources at [52]-[54]; Dann v Western Australia at 395, 401 and 413).
·The Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime (see Little v Oriole Resources at [39]).

The Proposed Future Acts

The Government party provides the following documents in relation to the proposed licences:
·Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’), including sites listed on the Register of Aboriginal Sites.
·Copies of the tenement applications and Draft Tenement Endorsements and Conditions Extracts.
·The instruments of licence and first schedules listing land included and excluded from the grants.
·Tengraph quick appraisals detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licences.

E69/2722

The Tengraph quick appraisal establishes that the underlying tenure of the land within E69/2722 is vacant Crown land. The quick appraisal also notes that the area is also subject to the following designations:
·Proposed Conservation Park (PCP/153) overlapping at 100 per cent.
·Proclaimed Ground Water Area (GWA/15, East Murchison) overlapping at 100 per cent.
·Two National Estate Registered Sites (NER/9895 and NER/9897) overlapping at 100 per cent and less than 0.1 per cent respectively.
·One Aboriginal Heritage Area (AHA/52) overlapping at less than 0.1 per cent.
The quick appraisal indicates that the area within E69/2722 has previously been subject to eight exploration licences granted between 1988 and 1997, overlapping the area at between 55.1 per cent and less than 0.1 per cent, with an average lifespan of four years and eight months. The area has also been subject to four temporary reserves granted between 1959 and 1980, overlapping between 4.6 per cent and 39.1 per cent, with an average lifespan of one year and 11 months.
The quick appraisal also notes there are seven tracks and 41 minor non-perennial watercourses in the area of E69/2722.
The report from the DAA Database establishes the existence of two sites registered under the AHA, the boundaries of which encroach on E69/2722:
·Site ID 1183: Talbot Rockhole – painting, engraving, water source.
·Site ID 1184: Stone Markers – man-made structure, artefacts/scatter, water source.
In addition to the registered sites, the DAA Database also records one ‘other heritage place’ within E69/2722:
·Site ID 2558: Katjara – lodged – artefacts/scatter, ceremonial, engraving, mythological, painting.

E69/2726

The Tengraph quick appraisal establishes that the underlying tenure of the land within E69/2726 is as follows:
·Two parcels of vacant Crown land overlapping at 23.8 per cent and 70.8 per cent.
·Pastoral lease 3114/654 (Granite Peak) overlapping at 4.3 per cent.
·Crown reserve 40930 (use and benefit of Aboriginal inhabitants) overlapping at one per cent.
·Historical lease 395/405 overlapping at 5.9 per cent
The quick appraisal also notes that the area is also subject to the following designations:
·Proposed Conservation Park (PCP/153) overlapping at 23.8 per cent.
·Proclaimed Ground Water Area (GWA/15, East Murchison) overlapping at 100 per cent.
·National Estate Registered Site NER/9895 overlapping at 19 per cent.
The quick appraisal indicates that the area within E69/2726 has previously been subject to eight exploration licences granted between 1988 and 2008, overlapping the area at between 0.2 per cent and 100 per cent, with an average lifespan of one year and two months. The area has also been subject to two temporary reserves granted in 1959 and 1978, overlapping at 100 per cent and 3.8 per cent respectively, the first being cancelled after five years and the second after 18 months.
The quick appraisal also notes there are seven tracks, one building (Blue Hills) and 17 minor non-perennial watercourses in the area of E69/2726.
The report from the DAA Database establishes the existence of three registered sites within E69/2726:
·Site ID 1182: Carnarvon Range – painting.
·Site ID 1185: Carnarvon Range Camp – artefacts/scatter, camp.
·Site ID 2560: Charralang/Tjarralang – man-made structure, modified tree, quarry, artefacts/scatter.
In addition to the registered sites, the DAA Database also record one ‘other heritage place’ within E69/2726:
·Site ID 3056: Kanatukul – lodged – artefacts/scatter, ceremonial, engraving, man-made structure, mythological, painting.

E69/2727

The Tengraph quick appraisal establishes that the underlying tenure of the land within E69/2727 is as follows:
·Two parcels of vacant Crown land overlapping at 61.1 per cent and 10 per cent.
·Pastoral lease 3114/654 (Granite Peak) overlapping at 4.2 per cent.
·Unnumbered Land Act Reserve (UNN 1001) overlapping at 23.7 per cent.
·Crown reserve 40930 (use and benefit of Aboriginal inhabitants) overlapping at one per cent.
·Historical lease 395/405 overlapping at 4.7 per cent.
The quick appraisal also notes that the area is subject to the following designations:
·Proposed Conservation Park (PCP/153) overlapping at 3.2 per cent.
·Proclaimed Ground Water Area (GWA/15, East Murchison) overlapping at 100 per cent.
·National Estate Registered Site NER/9895 overlapping at 4.1 per cent.
The quick appraisal indicates that the area within E69/2727 has previously been subject to seven exploration licences granted between 1991 and 2008, overlapping the area at between 0.2 per cent and 100 per cent, with an average lifespan of one year and ten months. The area has also been subject to two temporary reserves granted in 1959 and 1977, overlapping at 100 per cent and 12.9 per cent respectively, the first being cancelled after five years and the second after 15 months.
The quick appraisal also notes the following features within the area of E69/2727: one geodetic survey station (SSM-FX58), fifteen tracks, two fence lines, two yards, one well/bore with windmill (Well 5) and 54 minor non-perennial watercourses.
The report from the DAA Database indicates there are no registered sites and no ‘other heritage places’ within E69/2727.

Conditions and Endorsements

The Draft Tenement Endorsement and Conditions Extracts indicate that the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]). The following further conditions will be imposed on the proposed licences in respect of the area designated as the proposed conservation park:
In respect to the area of land designated PCP/153 in TENGRAPH, hereinafter referred to as the designated area, the following additional conditions shall apply:
5.Prior to accessing the licence area, the licensee shall consult with the Environmental Officer, DMP, and ensure that where required all vehicles and equipment entering the designated area are washed down to remove soil and plant propagules and adhering to such conditions specified for the prevention of the spread of soil-borne diseases.
6.Prior to any activity involving disturbance to vegetation and soils including:-
·   exploration access; and/or
·   exploration sampling;
the licensee preparing a detailed program for each phase of the proposed exploration for written approval of the Director, Environment, DMP. The Director, Environment, DMP to consult with the Regional/District Manager, Department of Environment and Conservation or other government agency (as relevant) prior to approval. This program to describe the environmental impacts and programs for their management and is to include:-
·   maps and/or aerial photographs showing the proposed locations of all ground activities and disturbances;
·   the purpose, specifications and extent of each activity and disturbance;
·   descriptions of all vegetation types (in general terms), land forms, and usual features likely to be disturbed by such proposed disturbances;
·   details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;
·   procedures to protect the integrity of special ecosystems such as wetland systems, mangal communities and rainforests areas [sic] (and/or associated rainforest monitoring sites) if applicable;
·   techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;
·   undertaking for corrective measures for failed rehabilitation;
·   details of water requirements from within the designated area;
·   details of refuse disposal; and
·   proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.
7.Access to and from and the movement of vehicles within the licence area being restricted to ground or seasonal conditions and routes approved under the program or otherwise agreed by the Environmental Officer, DMP.
8.At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DMP outlining the progress of the operation and rehabilitation and the proposed operations and rehabilitation programs for the next 12 months.
9.Prior to the cessation of the exploration/prospecting activity in the designated area, the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.

The following further conditions will also be imposed:
E69/2726
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·   the grant of the Licence; or
·   registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aboriginal Inhabitaants [sic] Reserve 40930.
E69/2727
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·   The grant of the Licence; or
·   registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aboriginal Inhabitaants [sic] Reserve 40930.
8.No exploration activities being carried out on Stock Route Reserve UNN 1014 which restrict the use of the reserve.
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:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder;
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Relevance of previous mining and pastoral interests

The Government party seeks to rely on the existence of prior mineral exploration and pastoral interests in support of its contention that the proposed licences are not likely to interfere with community and social activities or with areas or sites of particular significance. In particular, the Government party contends that the activities contemplated by the grantee party are likely to be the same as, or no more significant than, the previous and existing use of the areas.
The extent of previous mineral exploration in the proposed licence areas is outlined above at [19], [24] and [30]. Based on the documents provided by the Government party, it is apparent that each of the proposed licence areas has been subject to several exploration licences over the previous 25 years. However, in the case of the areas subject to E69/2726 and E69/2727, it appears there have been no active exploration interests since 2008, and in the case of E69/2722, there have been no active exploration interests since 1997. The information provided by the Government party in relation to E69/2726 and E69/2727 suggests that the previous licences were of limited duration. The documents also indicate that the proposed licence areas were subject to various temporary reserves granted prior to the enactment of the Mining Act, the last of which was cancelled in 1980. In relation to pastoral interests, Government party documents indicate that the Granite Peak pastoral lease currently overlaps approximately four per cent of E69/2726 and E69/2727. I note that these areas have also been subject to a historical lease.
The first native title party contends that the grant of exploration tenure does not necessarily result in exploration activity and says the Government party has failed to provide any evidence that activity has actually occurred pursuant to the granted licences and temporary reserves. In relation to the Granite Peak pastoral lease, the first native title party also notes that it does not affect those parts of the proposed licences areas which fall within the Birriliburu determination area. Furthermore, the first native title party states that the Government party has provided no evidence as to the nature of the activities conducted pursuant to the Granite Peak pastoral lease or the historical lease and has failed to detail on what basis the activities permitted by a pastoral lease may be compared to activities authorised by an exploration licence (NTP Reply, paragraphs 4.2-4.4).
I accept the first native title party’s submission that the grant of exploration tenure does not necessarily imply that exploration has taken place. There may be a variety of reasons why the rights conferred by a particular grant were not actually exercised. An exploration licence authorises the holder to carry out a range of activities involving varying degrees of disturbance, and it does not necessarily follow from the grant of such a licence that the explorer has run through the entire gamut of activities authorised by the grant. There may be circumstances where it is appropriate to infer that exploration has actually occurred (for instance, where an exploration licence has existed for a number of years). However, that does not necessarily assist the Tribunal to determine the extent of the activity (see WF v Marford Group at [59]). Furthermore, evidence that exploration has actually taken place may not support the conclusion that the proposed future act is unlikely to interfere with an area or site of particular significance, as the activity may not have affected the area or site to such a degree that further activity would not constitute interference (see Forrest v Aruma Exploration at [64]; Barnes v Copley at [42]; Weld Range Metals v Western Australia at [295]).
The Tribunal has previously determined that the existence of mining or pastoral interests which may have affected or continue to affect the community or social activities of the native title party may be taken into account in evaluating the likelihood that the proposed future act will further affect such activities so as to constitute direct interference with them (see Walley v Western Australia at [12], citing Velickovic v Sinclair at [13], Huddleston v Moffatt at [44]). This is an inference drawn from the nature of the interests involved and the likelihood that the lawful exercise of those interests will have constrained the community or social activities of the native title party. It is only one of several factors the Tribunal may have regard to in assessing the likelihood of interference. Although there may be no specific evidence as to the degree of interference, the Tribunal is entitled as part of the overall context to have regard to the fact that the exercise of those interests will already have to some extent interfered with the native title party’s community or social activities (see Tullock v Western Australia at [121]-[122]). However, that does not necessarily lead to the conclusion that the effect of the proposed future act will be no more substantial than the previous or existing interests. Indeed, if the evidence suggests those interests have had limited effect on the native title party’s community or social activities, they are unlikely to be given much weight in terms of that overall assessment.

Native Title Party Evidence

Each of the native title parties provided a statement of contentions in support of its respective objections. However, the second and third native title parties say they have had the benefit of reading the statement of contentions filed by the first native title party and support and adopt those submissions.
The first native title party relies on the following evidence in support of its objections:
·Affidavit of Frankie Wongawol affirmed 7 June 2014 (‘FW Affidavit’). Mr Wongawol states that he is a Martu elder, a wati (initiated man) and one of the most senior men for the area of the Birriliburu native title determination. Mr Wongawol deposes that he has authority to speak for the area of the proposed licences as a wati. He also states that the proposed licences are located in his ngurra (home, country). I accept that Mr Wongawol has authority to speak about the area on behalf of the first native title party.
·Affidavit of Lena Long affirmed 6 June 2014 (‘LL Affidavit’). Ms Long states that she is a native title holder and traditional owner for Birriliburu country. Ms Long also states that she was a director of the first native title party between December 2009 and October 2011. I accept that Ms Long is authorised to give evidence on behalf of the first native title party.
·Affidavit of Darren Andrew Farmer affirmed 6 June 2014 (‘DAF Affidavit’). Mr Farmer states that he is a native title holder and traditional owner for the Birriliburu determination. Mr Farmer also states that he is a wati and has previously been a director of the first native title party. I accept that Mr Farmer has authority to speak about the area on behalf of the first native title party.
·Affidavit of Robert Merlin Thomas affirmed 18 June 2014 (‘RMT Affidavit’). Mr Thomas holds a Bachelor of Science (Environmental Science) and has been employed as general manager of the Land and Community Division of Central Desert Native Title Services Ltd (‘CDNTS’) since 24 August 2009. Mr Thomas states that he was previously employed with the Regional Management Planning Team at the Department of Conservation and Land Management (‘CALM’) in the early 1990s.
·Affidavit of Emma Georgina Drake affirmed 18 June 2014 (‘EGD Affidavit’). Ms Drake holds a Bachelor of Arts (Natural Resource Education) and has been employed by CDNTS in the Land and Community Division since 25 March 2013, working in the role of ‘Women’s Ranger Coordinator’.
·Affidavit of Irene Assumpter Akumu affirmed 24 September 2014 (‘IAA Affidavit). Ms Akumu is an employee of CDNTS and a representative for the native title parties. Ms Akumu deposes to communications between herself and representatives of the grantee party in relation to the proposed licences and the first native title party’s preferred agreement.
The first native title party also relies on evidence provided to the Tribunal by the first native title party in expedited procedure inquiry matters WO2011/0712 and WO2011/0713 (see Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals):
·Affidavit of Miriam Atkins affirmed 26 October 2011 (‘MA Affidavit’). Ms Atkins states that she is a Martu elder from the Putijarra mob and, at the time of making her affidavit, was also a director of the first native title party. I accept that Ms Atkins has authority to give evidence on behalf of the first native title party.
·Affidavit of Jorna Farmer affirmed 27 October 2011 (‘JF Affidavit’). Ms Farmer states that she is a native title holder and traditional owner for Birriliburu country and, at the time of making her affidavit, was a director of the first native title party. I accept that Ms Farmer is authorised to give evidence on behalf of the first native title party.
·Affidavit of Slim Williams affirmed 26 October 2011 (‘SW Affidavit’). Mr Williams states that he is a native title holder and traditional owner for Birriliburu country and, at the time of making his affidavit, was also a director of the first native title party. Mr Williams states that he is an initiated man and the area in question is his grandfather’s country. I accept that Mr Williams is authorised to give evidence on behalf of the first native title party.
·Affidavit of Robbie Wongawol affirmed 26 October 2011 (‘RW Affidavit’). Mr Wongawol states that he is a traditional owner for the country in which the proposed licences are located and a Birriliburu native title holder. At the time of making his affidavit, Mr Wongawol was employed by CDNTS as a Land and Community Development Project Officer, and had previously been employed by CDNTS as a liaison officer and, subsequently, a head ranger. I accept that Mr Wongawol is authorised to speak about the country on behalf of the first native title party.
·Affidavit of Dr Lee Sackett affirmed 10 November 2011 (‘LS Affidavit’). Dr Sackett holds a doctorate in Anthropology and has experience working with the Birriliburu native title holders, including as the author of the connection report for the Birriliburu native title claim.
·Affidavit of Lindsey George Langford affirmed 11 November 2011 (‘LGL Affidavit’). Mr Langford holds a Bachelor of Arts (Anthropology) and, at the time of making his affidavit, was employed by CDNTS as ‘Facilitator Land and Community Projects’, having previously been engaged as ‘Anthropologist/Project Officer’ in respect of a number of native title claims and determinations, including Birriliburu.
The materials provided to the Tribunal in WO2011/0712 and WO2011/0713 and relied on by the native title parties in the present matter include a digital versatile disc containing video evidence filmed at places in and around the Carnarvon Ranges. The video features members of the first native title party giving evidence to staff of CDNTS at specific locations, including Kanatukul and Katjarra.
As noted above at [8], the first native title party requested that the Tribunal issue non-disclosure directions in relation to several documents, namely the affidavits of Mr Williams, Dr Sackett and Frankie Wongawol, and the video evidence. After considering parties’ submissions on the issue, I made directions requiring the documents to be used only for the purpose of these proceedings (including any appeal or judicial review proceedings) and to remain confidential to the officers and legal representatives of each party and their respective employees and consultants. In the case of the video evidence, the directions also required parties not to provide the material to anyone other than a person of the male gender.
The Tribunal is obligated under s 162(2) of the Act to state in its determination any factual findings upon which it is based. Consistent with the non-disclosure directions, I have resisted a detailed discussion of the documents and have disclosed their contents only to the extent necessary to outline the findings of fact that form the basis of my decision. This not always a simple task, and it would have been of some assistance had the Tribunal been directed to the specific information that should not be disclosed according to the protocols of the first native title party.
Several of the documents that are subject to the non-disclosure directions in this matter were subject to similar directions in WO2011/0712 and WO2011/0713. The affidavits of Robbie Wongawol and Mr Langford were also included in those directions, though no request was made to limit the disclosure of these documents in the present matter. It is not clear why non-disclosure directions were not sought in relation to these affidavits, as they deal with similar subject matter to the restricted evidence. Nevertheless, for the purpose of these reasons, I have dealt with the affidavits of Robbie Wongawol and Mr Langford on the same basis as the restricted evidence.

Documents produced in previous inquiry

The Government party notes that the video evidence and the affidavits of Ms Atkins, Ms Farmer, Mr Williams, Dr Sackett, Mr Langford and Robbie Wongawol were produced in relation to proceedings that involved different tenements and a different grantee party to the present proceedings and were produced two to three years ago. Consequently, the Government party submits that, to the extent the documents suggest that activities are carried on by the first native title party in the areas of the tenements considered in WO2011/0712 and WO2011/0713, the Tribunal ought not to accept that such activities presently occur in the proposed licence areas solely of the basis of that evidence. The Government party contends that the Tribunal should be careful when dealing with material prepared for the earlier proceedings and the onus is on the first native title party to establish the relevance of the material (GVP Contentions, paragraph 40).
The first native title party contends that there is a clear spatial relationship between the tenements considered in WO2011/0712 and WO2011/0713 and, while the Tribunal is required to have regard to the particular grantee party involved in the proceedings, the evidence provided in relation to WO2011/0712 and WO2011/0713 is not directed towards the grantee party in those matters and has general applicability to the issues arising under s 237. The first native title party contends that there is nothing to suggest that the evidence relating to sites of particular significance has materially changed and, taken together with the documents produced for the purpose of the present inquiry, the evidence demonstrates a substantial increase in the conduct of community and social activities in the relevant areas (NTP Reply, paragraph 3.3).
I accept that the documents produced in relation to the previous proceedings should not be relied on solely for the purposes of determining whether community or social activities are carried on by members of the first native title party in the proposed licence areas. As the Tribunal has recognised in previous decisions, evidence of past activity does not necessarily support an inference about contemporary activity or the likelihood of future activity. However, evidence of past activity may be relevant to the extent that it demonstrates an ongoing pattern of activity, particularly in combination with evidence of contemporary activity. In this way, evidence which demonstrates that community or social activities were carried on in the past may support an inference drawn from contemporary evidence that the activities will continue to be carried on in the future.
Though I accept that evidence of this nature must be treated with caution, I do not agree that the first native title party bears the onus of demonstrating the relevance of the material to the present inquiry. As McKerracher J recently affirmed in FMG Pilbara v Yindibarndi Aboriginal Corporation (at [79]), no party bears an evidential onus in these proceedings and the Tribunal is required to adopt the ‘common sense approach’ described by Carr J in Ward v Western Australia. There is clearly a significant overlap between the areas being considered in the present inquiry and the areas the subject of the previous proceedings (in particular, I note that the tenement considered in WO2011/0712 covers 60 per cent of the area affected by E69/2726 and 30 per cent of the area affected by E69/2727). I also note that the evidence is relevant to determining the significance of the broader area in which the proposed licences are situated. In the circumstances, I accept that the material produced for the purpose of WO2011/0712 and WO2011/0713 is relevant to these proceedings.

Anthropological evidence

In Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals, Member O’Dea made the following findings in relation to the affidavit of Mr Langford (at [34]):
In relation to s 237(b), Mr Langford’s affidavit is mostly concerned with reporting what members of the native title party have told him about sites in the area and only briefly deals with the ethnographic context in which those sites are considered significant. In this respect, I agree with the Government party’s contention [that the primary evidence of Aboriginal witnesses should be preferred to the evidence of Mr Langford] and I have not given significant weight to this part of Mr Langford’s evidence. Nevertheless, I have not taken the same approach to Mr Langford’s evidence about the social and community activities of the native title party in the area. Mr Langford states that he has been employed by [CDNTS] as a land management facilitator and has spent ‘considerable time’ discussing caring for country activities with members of the native title party and has assisted the native title party with land management activities in the area (at para 7-11). While I agree with the Government party’s contention that his training, study and experience does not qualify him to give evidence about the effect of the grantee party’s exploration programme on those activities, Mr Langford’s experience working with the native title holders places him in an appropriate position to give evidence about the nature of the social and community activities undertaken by the native title party. According [sic], I accept Mr Langford’s evidence and have given it adequate weight.
In the present matter, the Government party submits that, to the extent Mr Langford’s affidavit is relevant to the present proceedings, the same approach should be taken in relation to s 237(b). In relation to s 237(a), the Government party argues there is no basis upon which the Tribunal can accept Mr Langford’s evidence as evidence of any possible activities undertaken by the first native title party in the proposed licence areas at the present time. I have already dealt with that submission as it relates to Mr Langford’s evidence about the community and social activities carried on by the first native title party. However, insofar as Mr Langford’s evidence concerns matters relevant to s 237(b), I adopt the approach of Member O’Dea as outlined in the preceding paragraph.
The Government party also contends that the affidavit of Dr Sackett contains little in the way of specific evidence regarding the proposed licences and is largely devoted to a theoretical discussion of the concept of jukurrpa and the intergenerational transfer of knowledge within the first native title party. In reply, the first native title party contends that Dr Sackett’s affidavit provides anthropological and ethnographic context and was filed to assist the Tribunal in interpreting and understanding, among other matters, the nature of jukurrpa sites and why they hold particular significance for the native title party. I accept that Dr Sackett’s evidence is relevant for the reasons outlined by the first native title party and I have given appropriate weight to it.

Failure to annex maps

The Government party notes that the affidavits of Ms Atkins, Robbie Wongawol, Mr Langford and Mr Williams each state that the deponent was shown a topographical map of the tenements considered in WO2011/0712 and WO2011/0712 but fail to annex the relevant maps. The Government party contends that the absence of these maps makes it difficult for the parties and the Tribunal to ascertain the areas the deponent is discussing and whether the deponent is aware of the boundaries of the relevant tenements.
In this regard, the Government party supports and relies on the grantee party’s contentions in WO2013/0878 and WO2013/1103-1104, which concern similar omissions in affidavits filed in support of objections made by the third native title party with respect to other tenements applied for by the grantee party and a related entity. Specifically, the grantee party submitted in WO2013/0878 and WO2013/1103-1104 that, because the affidavits fail to: annex the relevant maps; state any belief, or any basis for a belief, that the maps were correct; or state whether the deponents were shown the relevant maps days, weeks or months prior to swearing the affidavits, there is no basis to assume that any map viewed by the deponents correctly showed the location or extents of the relevant tenements or any other feature which might have been on the map or that the deponents knew the location or extent of those tenements.
In particular, the grantee party relies on the following statement made by Member O’Dea in WF v Emergent Resources (at [24]):
The Government party also sought to challenge the evidence of the Wiluna deponents on the basis that the map referred to in their evidence was not annexed to the affidavits. At para 10 of the Government party contentions dated 4 October 2011, the Government party contends that, apart from statements made in the affidavits asserting knowledge of the location of the proposed licence, there is no evidence that the deponents know its location and it is therefore unclear whether their claims concerning their knowledge of its location can or should be accepted. I agree that the native title party’s failure to include a copy of the map, which was shown to the deponents during the course of the drafting of their affidavit, and would have provided me with considerable assistance in assessing the evidence contained in those affidavits is unhelpful. However, no such maps have been provided and I will assess the merits of the native title party’s objection on the basis of the written affidavits alone.
The grantee party endorses the approach adopted by Member O’Dea, but says that where a deponent has reviewed and referred to a map but has elected not to provide that map, then:
(1)if the deponent refers to a place which is unknown, as might be evidenced by its absence from the Gazetteer of Australia, then that reference has little probative value;
(2)if the deponent refers to a name, which is the name of multiple places in Western Australia, as might be evidenced by multiple listings entered on the Gazetteer of Australia, then that reference has little probative value; and
(3)it is not for parties, or the Tribunal, to speculate as to what, or where, the deponent might be referring to if there is any uncertainty in any locational reference by a deponent. Such matters are solely within the deponent’s knowledge and, in accordance with the common sense approach to evidence, where a party has had the opportunity, but has declined, to provide evidence, an adverse presumption should arise.
I agree that the failure to annex any maps referred to by a deponent creates a degree of uncertainty about the deponent’s knowledge of the location and extent of the area affected by the future act. However, the effect of such an omission on the weight given to the deponent’s evidence will depend on the nature of the evidence provided. For instance, in the example given by the grantee party, a reference to a place that cannot be identified by reference to an authoritative source of placenames is likely to have little probative value if it is merely said to be within a particular part of the tenement. On the other hand, the evidence will likely have greater probative value if the place is identified by reference to a place which is known (for example, if the unknown place is said to be a certain distance from the known place). Similarly, if the place is listed on the Register of Aboriginal Sites, it may be open for the Tribunal to conclude that the place referred to by the deponent is the same place listed on the Register. However, if there remains any uncertainty as to the location of the site or the deponent’s knowledge of the location and extent of the future act, a common sense approach would normally require the Tribunal to draw an adverse inference in respect of the party seeking to rely on the evidence.
The first native title party notes that the evidence of Ms Atkins, Robbie Wongawol, Mr Langford and Mr Williams was accepted and given significant weight by the Tribunal in Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals. The failure to annex the relevant maps was not raised in that matter and it was not specifically addressed by the Tribunal. As far as the Tribunal’s findings on the significance of Kanatukul are concerned, the omission of the maps was of little consequence, as the site is listed on the DAA Database and could be identified by reference to a defined geographical feature (that is, the Carnarvon Ranges). However, it is clear from the Tribunal’s reasons that little weight was given to statements that the tenements considered in that matter were located in a larger area known to the native title holders as Katjarra or the Carnarvon Ranges. Hence, Member O’Dea concluded (at [61]) that he was ‘not satisfied that the evidence establishes that the Carnarvon Ranges’ is an area or site of particular significance ‘whether in the narrow geographic sense or in the sense of the broader area suggested by the native title party.’ Member O’Dea continued:
Though I acknowledge that the Carnarvon Ranges are important to the native title holders for a variety of reasons, the evidence does not support a finding that the rangers constitute an area of particular significance to the native title party or what the boundaries of such an area would be.

It is clear that Member O’Dea gave little weight to evidence that sought to situate the tenements within a broader area the boundaries of which had not been sufficiently defined. It is quite likely the failure to annex the relevant maps contributed to that assessment. In my view, that failure does affect the weight that can be given to the deponents’ evidence as it relates to the dimensions or extent of the Katjarra/Carnarvon Ranges area. However, insofar as the evidence concerns locations that can be identified by reference to other materials, I do not consider the failure to annex the maps affects the weight of the evidence.

Grantee Party Evidence

In support of its contentions, the grantee party relies on the affidavit of Mr Weaver. Mr Weaver is the Native Title Manager at Fortescue Metals Group Ltd (‘Fortescue’) and states that his duties include the management of all matters of concern to Fortescue and its wholly owned subsidiaries, including the grantee party, arising under the Act.
Annexed to Mr Weaver’s affidavit are: a Ground Disturbance Permit Procedure (‘GDP Procedure’) adopted by Fortescue and its subsidiaries (collectively, ‘FMG Group’); Guidelines for the Management of Aboriginal Cultural Heritage produced by Fortescue’s Heritage Unit in July 2013 (‘Heritage Guidelines’); statements made by the grantee party pursuant to s 58(1)(b) of the Mining Act in relation to the proposed licences; and maps of the proposed licences produced by Fortescue.
Mr Weaver attests that, under the GDP Procedure, FMG Group personnel and contractors are not permitted to disturb any area unless a Ground Disturbance Permit has been issued for the area. The issue of a Ground Disturbance Permit is dependent on a range of matters being satisfied, including in relation to Aboriginal heritage and environmental protection. Mr Weaver deposes that FMG Group endorses the principles set out in the Guidelines for Consultation with Indigenous People by Mineral Explorers published by the Department of Mines and Petroleum (‘DMP’), Tenure and Native Title Branch (‘DMP Guidelines’) and have adopted the Heritage Guidelines, which all FMG Group personnel and contractors are required to comply with. Mr Weaver states that it is the policy of FMG Group not to undertake ground disturbing activities without a heritage survey having first been undertaken (Weaver Affidavit, paragraphs 10-11, 18-19).
Mr Weaver states that he is authorised by the grantee party to offer to enter into the RSHA with each native title party that has objected in respect of the proposed licences. Mr Weaver states that ‘[t]his offer may only be accepted by a qualifying Native Title Party by delivering two copies of the [RSHA] to the [grantee party], marked for my attention and otherwise signed by the Native Title Party prior to any determination by the Tribunal of the Native Title Party’s objection in respect of those exploration licences’ (Weaver Affidavit, paragraph 16)

Relevance of grantee party intentions and the presumption of regularity

The first native title party acknowledges that evidence of a grantee party’s intentions is relevant to the predictive assessment required under s 237 of the Act. However, the first native title party submits that evidence of intentions should be treated as such, and the Tribunal should take into account the fact that what actually happens in the future ‘will turn on the vicissitudes associated with mineral exploration’ (NTP Contentions, paragraph 6.13).
The Government party submits that there is no basis to conclude that the grantee party will not act in accordance with its stated intentions (GVP Contentions, paragraph 28). The first native title party takes issue with this submission and says in reply that the Government party had not provided any evidence as to how it had reached this view (NTP Reply, paragraph 8.7).
The predictive assessment mandated by s 237 of the Act requires consideration of whether the proposed future act is likely to give rise to interference or disturbance of the kind referred to in s 237. This assessment is not confined to an examination of the legal rights conferred by the proposed future act and evidence of the grantee party’s intentions is logically relevant to the question of likelihood (Smith v Western Australia at 449-450; Little v Western Australia at [69]-[70]; Silver v Northern Territory at [30]). Where there is evidence that a grantee party intends to exercise the rights conferred by the proposed future act in a particular way, it cannot simply be dismissed on the basis that intentions do not always translate into action. Although the weight that can be given to such evidence will depend on a variety of factors, if it is argued that the evidence should be given little weight, there must be a logical reason for doing so. The Tribunal must act on the material before it. Hence, in Little v Oriole Resources, which concerned the proposed grant of a miscellaneous licence authorising the construction of mining camp accommodation facilities, the Full Federal Court held on appeal that, had the Tribunal undertaken the predictive assessment required of it,
it could not, on the evidence, have come to any conclusion other than that the proposed works would be limited in the way asserted by Oriole. In particular, it could not have come to the conclusion that Oriole would be likely, for some idiosyncratic reason contrary to its stated intention, to duplicate existing mining camp accommodation facilities.
In the present matter, the evidence suggests that the grantee party intends to carry out a range of activities in the initial phase of its exploration program, including but not limited to aerial photography, analysis of aeromagnetic and landsat data, analysis of historical exploration data, geological mapping and rock chip sampling. This first phase of work is designed to identify and locate targets ready for further testing by drilling, and succeeding phases may involve more intensive activities such as reverse circulation and diamond drilling depending on the results. As Member Sosso observed in Walley v Brosnan at [22], evidence of this nature is of limited assistance to the Tribunal, as ‘[a]ll it indicates is that the grantee’s present intentions are limited to extremely low impact activity which may result in higher impact activity should the initial exploration activities prove fruitful.’ However, information about procedures and guidelines adopted by the grantee party will be of considerably greater assistance, and where such information is available, it is open for the Tribunal to conclude that, in the absence of evidence to the contrary, the rights conferred will be exercised in a way that is consistent with the policies adopted by the grantee party.
The first native title party contends that the Government party should, as the relevant regulator, produce evidence to support its assertion that the grantee party will act in accordance with its stated intentions, such as evidence of FMG Group’s consistent and continual compliance with tenement conditions (NTP Reply, paragraph 8.9). With respect, this argument inverts the proper order of inquiry in circumstances where a tribunal of fact is asked to draw inferences about the conduct of a party. The common sense approach to evidence means that, where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn (Ward v Western Australia at 217, referring to McDonald v Director-General of Social Security at 358). However, the Tribunal must be mindful of the nature of the inference it is being asked to draw, including the seriousness of the subject matter, the inherent unlikelihood of a particular occurrence and the gravity of the consequences that flow from any finding (see Briginshaw v Briginshaw at 362 (Dixon J); Neat Holdings v Karajan Holdings at 449-450, 451; Strategic Minerals Corporation v Kynuna at [40]).
This reasoning underpins the presumption of regularity applied by the Tribunal in matters involving objections to the expedited procedure. In Walley v Western Australia at [11], the Tribunal described the presumption of regularity in the following terms:
Unless there is evidence to the contrary the Tribunal will act on the basis that the government will exercise its powers including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime including conditions imposed which governs [sic] the exercise of rights under the grant.
As Deputy President Sumner observed in Murray v Money at [53], the presumption is not a legal presumption but an approach to the facts which is appropriate on the evidence. In this sense, the presumption, properly understood, is ‘simply a common-sense, logical approach used by the Tribunal in determining a matter in issue before it in applications such as this, namely predicting the future conduct of a grantee party’: Murray v Money at [12]. Similarly, it is a matter of logic and commonsense that a party will act in accordance with its stated intentions unless there is evidence to the contrary. In the present matter, there is no evidence before the Tribunal which might lead to the conclusion that the grantee party will not act in accordance with its stated intentions, including by observing the policies, procedures and guidelines it has adopted, and no logical foundation has been identified for drawing an adverse inference of the kind suggested by the first native title party.

Materials produced by the Tribunal

On 23 October 2014, the Tribunal circulated to parties maps of the proposed licences produced by the Tribunal’s Geospatial Services Unit, noting its intention to rely on the maps in its deliberations and seeking comments from parties.
The Government party indicated that it had no issue with the Tribunal relying on the maps for the purposes of the determination. The grantee party declined to comment on the content of the maps on the basis that they would be used in conjunction with the materials provided by the parties, including any maps, although it noted that the map did not show the locations of sites that had been identified by reference to geospatial coordinates. The native title parties did not comment on the Tribunal’s intended use of the maps.
Taking into account the grantee party’s comments, I requested the Tribunal’s Geospatial Services Unit to produce another map showing each of the proposed licences and the locations of sites identified in the video evidence by reference to geospatial coordinates. This map was subsequently circulated to parties on 19 November 2014. No comments were received from parties in relation to this map.

Interference with community or social activities – s 237(a)

Contentions and evidence in relation to s 237(a)

The first native title party contends that there are three broad categories of community and social activities carried on by the native title holders in the proposed licence areas:
(a)Activities associated with law business and the protection and maintenance of areas, sites and places of significance.
(b)Activities of a general nature conducted by native title holders on the proposed licences, including camping, hunting and gathering, and teaching.
(c)Activities designed to protect and maintain the land and waters within the proposed licences in accordance with the area’s values under traditional law and custom, the manifestation of these values noted under the Indigenous Protected Area (‘IPA’) declared in respect of the Birriliburu determination area in April 2013 and the classification of the Katjarra/Carnarvon Ranges area under the IPA as an International Union of Conservation Networks (‘IUCN’) Category III protected area.
In respect of category (a) activities, the first native title party contends that law business is conducted on and near the proposed licences and the whole Katjarra/Carnarvon Ranges area is blocked off while law business is being conducted. The first native title party also contends that access to areas of significance within the proposed licences is restricted and controlled, in some cases on a permanent basis, and these restrictions are enforced. The first native title party submits that uncontrolled exploration activity will restrict law business and clash with activities involved in protecting importance places. Furthermore, the first native title party submits that wati may be subject to traditional punishment if they are not permitted to exclude persons from the area and will be ‘shamed’ if unable to look after sites. The first native title party also submits that women will suffer adverse consequences if they enter a men’s site and people may get upset and sick, ‘eaten away’ or may ‘pass away’ (NTP Contentions, paragraphs 10.3-10.5, 13.3-13.5, 16.3-16.5).
In this regard, the first native title party submits (at NTP Contentions, paragraphs 10.6, 13.6, 16.6) that any exploration activity will:
(a)necessarily and adversely impact on activities associated with undertaking law business and in the maintenance and protection of sites;
(b)interrupt and interfere with the capacity of the wati to freely and of right, access and enjoy the areas in accordance with the terms of the Birriliburu determination and their traditional laws and customs at the times, for the duration of and in the manner of their choosing to undertake law business and protect sites and places of significance; and
(c)cause the harm identified above at [79].
In respect to category (b) activities, the first native title party contends that Putijarra/Martu people attend on the country in the proposed licence areas to get away from the pressures of town and re-embrace a traditional way of life. The first native title party contends that Putijarra/Martu camp, hunt and gather and teach in the proposed licence areas, and the number of people travelling to the area is so great that requests are being made for additional and permanent facilities to be established. The first native title party submits that exploration activity will affect the amenity of the area and, to the extent that the exploration activity involves the use of water resources on the subject land, will affect hunting by taking water used by animals and in any event by frightening them away from areas where hunting occurs (NTP Contentions, paragraphs 10.7-10.9, 13.7-13.9, 16.7-16.9).
In this regard, the first native title party submits (at NTP Contentions, paragraphs 10.10, 13.10, 16.10) that exploration activity that is not coordinated in a way that is compatible with the hunting, camping, gathering and teaching activities of the Putijarra native title holders will:
(a)necessarily and adversely impact on these activities;
(b)interrupt the capacity of the Putijarra/Martu native title holders to freely and of right access and enjoy the proposed licence areas to undertake those activities in accordance with the terms of the Birriliburu determination and their laws and customs; and
(c)cause the unwanted consequences identified above at [81].
In respect of category (c) activities, the first native title party contends that the proposed licences are part of a significantly larger area of particular cultural and environmental significance known as Katjarra or the Carnarvon Ranges, the significance of which has been recognised in its classification as a IUCN Category III protected area under the IPA. The first native title party contends that activities undertaken in this area include traditional burning of country, feral animal control, research trips, monitoring of endangered species, waterhole clearing, tourist control, signage, removing trespassers, return to country trips and general land management activity. The first native title party contends that the presence of exploration activity will interfere with these land management and caring for country activities by: interfering with the native title holders’ capacity to plan these activities in advance; creating dangers when activities such as burning and feral animal control are being undertaken; preventing or interfering with return to country trips; and generally putting these activities at risk (NTP Contentions, paragraphs 10.11, 13.11, 16.11).
In this regard, the first native title party submits that exploration activity that is not coordinated in a way that is compatible with land management activities undertaken by the native title holders will:
(a)necessarily and adversely impact on these activities both now and increasingly in the future;
(b)interrupt the capacity of the Putijarra/Martu native title holders to freely and of right access and enjoy the proposed licence areas to undertake those activities both now and increasingly into the future in accordance with the terms of the Birriliburu determination and their laws and customs; and
(c)cause the unwanted consequences identified above at [83].
Mr Farmer attests to the existence of law grounds within Kanatukul and the area known as Mt Methwin. Mr Farmer states that these sites are restricted to wati and are regularly used for law business, which is usually undertaken over the warmer months but can occur at other times of the year. Mr Farmer also states that sacred objects are stored in and around these sites. Mr Farmer deposes that all roads in the area are closed while law business is taking place so that wati can travel in and through the area in ceremonial attire and carrying ceremonial objects without being observed by non-wati. According to Mr Farmer, it is very important to ensure the proper rituals associated with law business are observed (DAF Affidavit, paragraphs 13, 18).
Mr Farmer also states that native title holders from various locations travel to the area to hunt and camp. Mr Farmer states that families normally visit the area during school holidays, while people who do not have children tend to visit the area any time during the cooler months. According to Mr Farmer, people visiting the area from places in the south such as Wiluna tend to travel west from Well 5 on the Canning Stock Route and camp at Blue Hills Reserve or the old Blue Hills community, whereas people travelling from the north come in through Ned’s Creek Station from the west and often camp at Good Camp Rockhole or further north at Katjarra Rockhole or Virgin Springs. Mr Farmer attests that people visit the area ‘to get back onto country and away from the pressure of town and … re-embrace the traditional way of life that many of them grew up with’ and says that the presence of mining companies would interfere with this. According to Mr Farmer, ‘[t]here are so many people travelling into the Katjarra area now that the old people have asked the Birriliburu rangers to create a new permanent facilities [sic] there’ (DAF Affidavit, paragraphs 23-26).
Ms Farmer states that native title holders ‘go camping at Blue Hills and Carnarvon Ranges all the time, at holiday time and to take the kids away from getting into trouble’ (JF Affidavit, paragraphs 13). Frankie Wongawol also describes the Katjarra/Carnarvon Ranges area as ‘one of the main spots’ for bringing children on country to teach them about culture, and says it is ‘good hunting country’ (FW Affidavit, paragraphs 8-9). This is also supported by the evidence of Dr Sackett, who also states that he is aware through his research of this transmission of knowledge occurring in and around the Carnarvon Ranges (LS Affidavit, paragraph 13). Ms Long states that she ‘go[es] up to the Carnarvon Ranges whenever I can go with other people as [I] don’t have a good motor car, otherwise we would go more often.’ Ms Long deposes that the Carnarvon Ranges is a ‘good spot for bush tucker’ and there are plenty of bush turkey and emus, especially around E69/2726 and Blue Hills. Ms Long says there is a permanent water source at Kanatukul, which is used by animals inhabiting the area, and she notes that there is ‘good water’ at Blue Hills as well (LL Affidavit, paragraphs 9-10, 12, 17).

The reasons of McKerracher J appear to support the argument advanced by the grantee party that French J’s remarks in Smith v Western Australia on the meaning of the word ‘interfere’ in s 237(a) apply equally to s 237(b). This not only suggests that the Tribunal’s task under s 237(b) is evaluative in the sense identified by French J, but also implies that the impact on areas or sites must be substantial or non-trivial. However, as McKerracher J went on to say (at [79]), ‘[t]he meaning of these terms must be taken in the context of the particular site and the laws and customs in relation to that site.’ Hence, impacts that might otherwise be considered trivial in the context of s 237(a) could be regarded as substantial in the context of the native title party’s traditions.
It is clear then that the likelihood of ‘interference’ in s 237(b) is to be evaluated by reference to the traditional laws and customs of the native title party. It is also clear that interference must be with the area or site itself rather than with people or activities. However, McKerracher J also suggests that the interference need not be physical in nature. Rather, the focus of s 237(b) is whether the proposed future act is likely to interfere with the area or site under the traditional laws and customs of the native title party.
Although the issue was not before the Federal Court in FMG Pilbara v Yindjibarndi Aboriginal Corporation, it appears to me that the interference must nevertheless relate to a physical area or site. Relevantly, the Macquarie Dictionary defines ‘area’ as ‘1. Any particular extent of surface; region; tract … 2. a piece of unoccupied ground; an open space ….’ Similarly, ‘site’ is defined as ‘1. the position of a town, building, etc, especially as to its environment … 2. the area on which anything, as a building, is, has been or is to be situated.’ In this sense, the words ‘area’ and ‘site’ both convey spatial qualities. It follows that an area or site of particular significance must have a physical dimension. The two concepts might be distinguished on the basis that a site could be said to refer to a defined point or position whereas an area implies something larger in extent and could include one or more sites. It may be difficult to determine precisely in a given case whether something is either an area or a site. It will often be a matter of perspective. Nevertheless, in my view an ‘area’ or ‘site’ must be capable of definition by reference to geospatial criteria. While this is unlikely to be an issue in most cases where an area or site has been identified, it seems to me that general spiritual or cultural concerns which do not relate to a specified area or site would not be covered under s 237(b).

Consideration of s 237(b)

On the basis of the evidence before the Tribunal in the present matter, I accept and adopt the findings of Member O’Dea in Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals regarding the particular significance of Kanatukul. I also find that the ceremonial site is a site of particular significance. Furthermore, I accept that the evidence establishes that the Katjarra or Mt Methwin area, which includes Katjarra Rockhole and Virgin Springs, is an area of particular significance to the native title holders. I also accept that the ceremonial site near Talbot Rockhole and the site to the east of Blue Hills are sites of particular significance.
I also accept and adopt the finding of Member O’Dea that the Katjarra/Carnarvon Ranges area is not an area of particular significance according to the traditions of the native title holders. Although it is clear that the Katjarra/Carnarvon Ranges area is important to members of the first native title party, the evidence does not in my view establish the particular significance of the area. In my opinion, the better view is that Kanatukul and Katjarra/Mt Methwin are both areas of particular significance. Although the evidence suggests they are linked, I agree with Member O’Dea that these areas are more appropriately characterised as discrete ‘sites’ rather than a single area extending from Lake Kerrlyn to the north of E69/2722 through Kanatukul and east to Blue Hills.
Based on the evidence before me, I find that there are sites within the Kanatukul and Katjarra/Mt Methwin areas to which access or entry is restricted to people of a certain gender or status. I also accept that similar restrictions apply to the ceremonial site near Talbot Rockhole. In my view, a breach of these restrictions may amount to interference for the purposes of s 237(b).
Mr Weaver states that it is the policy of the FMG Group (including the grantee party) not to undertake ground-disturbing activities without a heritage survey having first been undertaken. I also note that the grantee party’s Heritage Guidelines indicate that all personnel are instructed to remain on existing roads and tracks. Furthermore, the Heritage Guidelines provide that access to areas where ground disturbance has been approved may only be accessed using existing tracks or those established during earlier approved works and that personnel are not permitted to enter an Aboriginal site without proper authorisation by FMG Group’s heritage department. The Heritage Guidelines also make provision for areas to be classified as ‘Heritage Restriction Zones.’ As part of this classification, an area may be designated as being ‘access restricted’, ‘no ground disturbance permitted’, ‘Non-standard GDP conditions apply’, ‘further consultation required’ or ‘further survey/investigation required’.
While it is appropriate to give weight to these guidelines and the policies and procedures adopted by the grantee party, I am not satisfied they will ensure there is no real risk of interference with the sites within the Kanatukul and Katjarra/Mt Methwin areas. While the Heritage Guidelines contemplate that areas may be designated as Heritage Restriction Zones, there is no indication in the present matter that the grantee party is prepared to extend this designation to the Kanatukul or Katjarra/Mt Methwin areas. Although the grantee party states that it endorses the principles in the DMP Guidelines, it does not appear to have made any unequivocal offer to enter into an RSHA with any of the native title parties. In any case, the consultation process outlined in the RSHA only comes into play once the grantee party proposes to undertake ground disturbing activities as defined by the RSHA. While the RSHA also requires the grantee party to notify the native title party in relation to non-ground disturbing activities, I am not satisfied this would be sufficient to reduce the risk of interference. I accept that the grantee party intends to comply with the AHA. However, the evidence in this matter suggests that activities that may not otherwise contravene the AHA may amount to interference with areas or sites of particular significance in accordance with the traditions of the native title party. In the circumstances, I accept there is a real risk of interference of the kind contemplated in s 237(b).
In conclusion, I find that s 237(b) is satisfied in relation to E69/2727 but is not satisfied in relation to E69/2722 and E69/2726.

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

Contentions and evidence in relation to s 237(c)

In relation to s 237(c), the first native title party contends that the grant of the proposed licences is likely to involve major disturbance to the land concerned or create rights whose exercise is likely to involve major disturbance to that land. This contention is made on three levels. First, it is submitted that the land which is subject to the proposed licences is regarded as part of a wider area of cultural and environmental significance to the native title holders. Second, the first native title party submits that the land is pristine but also fragile. In particular, the first native title party submits that the area is largely unexplored by miners and undeveloped, contains threatened species and is under threat from introduced species and erosion. Third, the first native title party relies on the fact that the proposed licences and surrounding areas have been given an IUCN Category III protected area status under the IPA declaration. The first native title party says that this status requires the native title holders to actively maintain and enhance the cultural and environmental values of the area (NTP Contentions, paragraphs 12.1-12.3, 15.1-15.3, 18.1-18.3).
Mr Thomas states that the IPA is a voluntary agreement entered into between the native title holders and the Commonwealth government and resulted in the determination area becoming part of the national reserves system. According to Mr Thomas, the first native title party consulted with native title holders prior to the IPA declaration to determine whether any areas within the determination area were ‘worthy of higher levels of protection’ under the IPA. As a result of that consultation process, the native title holders agreed to manage the Katjarra/Carnarvon Ranges area in accordance with the objectives of the IUCN Category III protected area status. Mr Thomas describes the area subject to the IUCN Category III protected area status as follows:
a large area that stretches from Lake Kerrlyn in the north to the western and southern boundaries of the determination area and east to Well 5 on the Canning Stock Route (including the area shown as “Blue Hills” on topographic maps). This includes the area between and around the two sets of ranges, the northern range, that includes Mt Methwin and Virgin Springs (in part within E69/2722) and the southern range, shown on some topographic maps as “Carnarvon Range” (in part within E69/2726), and the former Blue Hills pastoral station (within E69/2726 and E69/2727)…
According to Mr Thomas, the protected area status ‘recognises the area as being of high cultural and conservation value’. Mr Thomas states that he is aware, through his experience in a previous role at CALM, that an area similar in extent to the Katjarra/Carnarvon Ranges area was identified for possible reservation, but was not pursued as a result of feedback received in the regional planning process, which included ‘the importance of the area from a cultural perspective’ (RMT Affidavit, paragraphs 4-7).
Mr Farmer states that the area is ‘largely previously unexplored and un-developed’. Though Mr Farmer says there has been pastoral activity in the southern parts of E69/2726 and E69/2727, he states that the pastoral lease was owned and managed by a Putijarra man, who ‘managed the area consistent with Putijarra law and values.’ According to Mr Farmer, the lease has now been cancelled and the area ‘has returned to its pre-pastoral days.’ Mr Farmer states that even low level exploration activities, such as creating new tracks, soil or rock sampling or camping outside of designated camping areas ‘would be inconsistent with attempts by Putijarra to maintain and adhere to the IUCN Category III status’ (DAF Affidavit, paragraphs 40-41).
Mr Farmer says there are ‘a considerable number and diversity of cultural, natural resource management and social activities, coordinated by [the first native title party] and undertaken by native title holders through the Birriliburu rangers and others over the Katjarra IUCN Category III protected area’ (DAF Affidavit, paragraph 8). Although these activities also feature in other areas of the IPA, Ms Drake attests to their particular prominence in the Katjarra/Carnarvon Ranges area due to the nature of the landscape (EGD Affidavit, paragraph 7). Mr Thomas also states that the southwest region of the determination area, which includes the Katjarra/Carnarvon Ranges area, is ‘a particular focus’ for these activities (RMT Affidavit, paragraph 27). In terms of conservation and land management, these activities include the monitoring of threatened and introduced flora and fauna; the implementation of baiting and hunting programs; cleaning rockholes; and strategic burning (RMT Affidavit, paragraphs 15-18; DAF Affidavit, paragraphs 32-35; EGD Affidavit, paragraphs 3-6).
Mr Thomas states that restrictions on access to the Katjarra/Carnarvon Ranges area also have a land management function, as they assist the native title holders to maintain the environmental and cultural values of the area and protect the fragile desert ecosystem. In particular, Mr Thomas notes the threat of introducing non-native weeds and grasses, which can be inadvertently carried into the area by motor vehicles and people. Mr Thomas also deposes that tracks in the area are designed and maintained to ensure they do not cause unintended erosion, and people who enter the area are required to keep to established tracks to ensure that additional tracks are not created by vehicle use (RMT Affidavit, paragraph 21).
The Government party contends the alleged ‘pristine’ and ‘fragile’ nature of the land and the area’s IUCN status does not mean major disturbance is more likely to occur, particularly where the proposed future act is simply an exploration licence. The Government party also contends that E69/2722 and parts of E69/2726 and E69/2727 will be subject to particular conditions in respect of the area of land designated as Proposed Conservation Park 153 (‘PCP/153’). The Government party states that these conditions require the licensee to consult with the Environmental Officer of DMP prior to accessing the area covered by PCP/153 and all vehicles and equipment are required to be washed down to remove soil and plant propagules prior to entering the relevant areas (GVP Contentions, paragraphs 145-146, 150-152).
The Government party also notes that the conditions require the licensee to prepare a detailed program for each phase of the proposed exploration for written approval by the Director, Environment, DMP, prior to entering PCP/153 for exploration purposes. The Director is then required to consult with the Regional or District Manager of the Department of Environment and Conservation or other government agency before giving approval. The Government party states that the program must describe the environmental impacts and programs for their management and include, among other things, procedures to protect the integrity of special ecosystems, details of water requirements and refuse disposal, and proposals for the instruction and supervision of personnel and contractors in respect to environmental conditions (GVP Contentions, paragraph 147).
In the Government party’s submission, the conditions to be imposed in relation to environmental protection, together with the grantee party’s protocols as to heritage protection, are a complete answer to the contentions of the first native title party in respect of areas designated as PCP/153. However, the Government party further submits that the proposed licences are not likely to involve major disturbance for the following reasons:
(a)The grantee party has stated that it has a policy not to undertake ground disturbing activities without a heritage survey having first been undertaken. Accordingly, any ground disturbing activities are intended to be conducted in a way which will not involve major disturbance.
(b)The exercise of the rights conferred by the proposed licences will be regulated by State regulatory regimes with respect to mining, Aboriginal heritage and the environment. It is likely these regimes will together and separately avoid any major disturbance to land and waters.
(c)Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following the completion of exploration.
(d)The proposed licence areas have been subject to prior mineral exploration and pastoral activity and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the areas.
(e)It does not appear that the proposed licence areas have any particular characteristics that would be likely to result in major disturbance to land and waters arising given the activities being proposed by the grantee party.
In reply, the first native title party contends that there have been no discussions between it and the Government party about establishing PCP/153 as a conservation area or park and there is no evidence that the Government party has actively managed the area or enforced conditions placed on exploration tenements. In this respect, the first native title party notes the findings of the Auditor General with respect to the enforcement of and compliance with environmental regulations and conditions (see Office of the Auditor General of Western Australia, Ensuring Compliance with Conditions on Mining (September 2011)). Specifically, the first native title party refers to the following passages at page 8 of the report:
Monitoring and enforcement of environmental conditions need significant improvement. Currently, agencies can provide little assurance that the conditions are being met …
Significant weaknesses in information management make it difficult for DMP to analyse the effectiveness of its inspections, or report accurately on how well operators comply with conditions. Information that is kept is inconsistent and the systems used to manage information are inefficient …
DMP’s approach to enforcing environmental conditions is to take the minimum action required to obtain industry cooperation and compliance
I note that the Auditor-General concluded that the DMP’s approach to enforcing environmental conditions ‘can be effective’, though it identified weaknesses which needed to be addressed. These included the lack of clear established criteria for determining the severity of non-compliance and the DMP’s monitoring of whether action had been taken to address identified non-compliance.
The first native title party also contends that the grantee party’s policies regarding the conduct of heritage surveys are irrelevant to the issues arising under s 237(c), as the policies are directed to the management of cultural heritage rather than ensuring that its activities do not involve major disturbance to areas of environmental significance. Furthermore, the first native title party contends that activities which do not involve ground disturbance, such as access for the purposes of rock chipping and soil sampling are likely to cause erosion or result in the introduction of flora into the area (NTP Reply, paragraphs 9.3-9.5).

Consideration of s 237(c)

The issue of whether the proposed licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance is determined by reference to the expectations of the entire community (see Little v Oriole Resources at [52]-[54]). While the Tribunal must have regard to the particular concerns of the Aboriginal community and the local population, including matters such as community life, customs, traditions and cultural concerns, the Tribunal is only entitled to take these matters into account to the extent that they flow from actual physical disturbance arising from the exercise of rights granted or created by the proposed future act (see Dann v Western Australia at 394, 401 and 413; Rosas v Northern Territory at [84]; Lockyer v Mineralogy at [67]).
The Tribunal has generally found that mineral exploration is unlikely to involve major disturbance to land and waters (see Champion v Western Australia at [77]; Yindjibarndi Aboriginal Corporation v FMG Pilbara 1 at [143]). However, the Tribunal must have regard to the overall circumstances including the nature of the locality and the regulatory regime in place (see Champion v Western Australia at [77]). Hence, in Re Nyungah People, the Tribunal concluded that the grant of a petroleum exploration permit was likely to involve major disturbance where there was a real risk that seismic exploration could occur within an area designated as State forest. Similarly, in Western Australia v Britten, the Tribunal found that the proposed grant of an exploration licence over part of a water catchment that was relied on by traditional owners did not satisfy s 237(c).

In the present case, the proposed licences are situated in an area designated as a IUCN Category III protected area under the terms of the IPA. The Tribunal has previously found that the existence of a national park or National Heritage Listing is not determinative of whether major disturbance is likely to occur (see Rosas v Northern Territory [93]-[100]; Goonack v Geotech International at [44]; BW v Baxter at [60]). In Rosasv Northern Territory, the Tribunal accepted that, while the existence of a national park is potentially of relevance to s 237(c), it does not raise a presumption that exploration activity is likely to result in major disturbance to land and waters. In that matter, Member Sosso gave particular weight to the fact that, under the relevant legislation, a national park could be declared for a variety of public policy reasons and was not necessarily an indication of the area’s environmental significance. However, Member Sosso noted that, if (a) there is evidence that land is part of a national park or reserve and is undisturbed (and which may have high environmental values); and (b) there is evidence that the exploration proposed (or previous exploration) has (or had) the potential to significantly disturb the vegetation and soil of the area; then it would be open for the Tribunal to infer that there is a likelihood of major disturbance (see Rosas v Northern Territory at [96]).
There is little evidence before the Tribunal regarding the criteria for designating land as an IUCN Category III protected area. There is also little in the way of evidence regarding the process for designating such an area, apart from the evidence of Mr Thomas that native title holders were consulted about areas requiring a higher level of protection under the IPA and the fact this appears to have been accepted by the Commonwealth for the purposes of the IPA declaration. It is not clear what consequences flow from the protected area status, though it was suggested that it imposes certain obligations on the native title holders in relation to the area’s management. Nevertheless, it is appropriate to give some weight to the designation as recognising the cultural and environmental values of the Katjarra/Carnarvon Ranges area. These cultural and environmental values are amply supported by the evidence presented in this matter and it is clear that the native title holders have invested a considerable amount of time and effort towards maintaining these values within the framework of the IPA.
In the circumstances, I consider there is a real risk that mineral exploration could involve major disturbance to the land. However, I accept that this risk will be mitigated by the imposition of conditions proposed by the Government party in relation to PCP/153. These conditions require the grantee party to prepare a detailed program for each phase of exploration for approval by the Director, Environment, DMP. The Director must consult with the Department of Environment and Conservation or other relevant agencies prior to approval. The program must describe the environmental impacts and programs for management, including procedures for protecting the integrity of special ecosystems and proposals for instructing and supervising personnel and contractors in relation to environmental conditions. The conditions also require the grantee party to wash down all vehicles and equipment prior to entering the area to prevent the propagation of plants and soil-borne diseases. In my view, it is appropriate to give weight to these conditions.
The first native title party contends that the Government party has failed to produce any evidence of active management or the enforcement of conditions in relation to PCP/153. It is not clear what significance the first native title party is seeking to attach to the Government party’s failure to produce evidence of active management of PCP/153 in the context of the grant of an exploration licence or how it is relevant to the issues considered under s 237(c). In the context of the proposed licences, the Government party has decided to impose additional conditions in relation to areas within PCP/153. The first native title party says the Government party has failed to produce evidence that it has enforced these conditions in the past. However, as Member O’Dea observed in Barnes v Pirkopf at [31], the effectiveness of these regulatory measures does not necessarily require universal compliance by enforcement of those measures. Although the Auditor-General’s report identified weaknesses in the monitoring of conditions on mining projects, this does not mean the grantee party is likely to contravene the conditions imposed on the licences (see Karajarri Traditional Lands Association v ASJ Resources at [50], Barnes v Pirkopf at [27]-[31] and Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals at [37]-[44]). In any event, I note that a follow-up to the Auditor-General’s report published in November 2014 found there had been ‘significant improvement by government and agencies in addressing the issues we identified in 2011’ (Office of the Auditor General of Western Australia, Ensuring Compliance with Conditions on Mining – Follow-up, November 2014 at 5).
There are however significant areas within E69/2726 and E69/2727 which will not be subject to these conditions. Although a portion of E69/2727 is subject to the Canning Stock Route, there remains a significant portion of the area which is not within the Canning Stock Route or PCP/153. In my view, the standard conditions requiring rehabilitation of disturbances and written authorisation prior to the use of mechanised equipment will not be sufficient to ensure there is no real risk of major disturbance to the land within E69/2726 and E69/2727. I accept that the grantee party’s policy is to carry out a heritage survey prior to undertaking ground disturbing work, and this is likely to extend to the establishment of new tracks given the Heritage Guidelines provide that existing tracks must be utilised unless authorised under the GDP Procedure. However, I do not accept that the consultations which are likely to occur in the context of a heritage survey will necessarily be adequate to address any environmental issues that might arise from the proposed exploration.
The Government party suggests that the proposed exploration will be the same as or no more substantial than the previous and continuing use of the area. It appears to me that there has been at most a limited history of exploration in these areas. Although there has been pastoral activity over parts of E69/2726 and E69/2727, I accept that the area has recovered to some extent since the cancellation of the historical lease. In any case, I do not accept that exploration will necessarily involve an equivalent degree of disturbance.
In conclusion, I find that E69/2726 and E69/2727 are likely to involve major disturbance to the land and waters concerned. However, I find there is no real risk of major disturbance arising from the grant of E69/2722.

Determination

The determination of the Tribunal is that the grant of exploration licences E69/2722, E69/2726 and E69/2727 to FMG Pilbara Pty Ltd are not acts attracting the expedited procedure.

Mr JR McNamara
Member

4 February 2015

[2015] NNTTA 4

4 February 2015

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law

Legal Concepts

Native Title

Adverse Possession

Legitimate Expectation

Proportionality

Cultural Significance