Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v Zenith Minerals Ltd

[2012] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/Western Australia/Zenith Minerals Ltd, [2012] NNTTA 77 (2 July 2012)

Application No:        WO11/712, WO11/713

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

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

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The State of Western Australia (Government party)

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Zenith Minerals Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

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

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  2 July 2012

Catchwords:  Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – expedited procedure attracted / not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 155, 237

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

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 19

Environmental Protection Act 1986 (WA)

Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (8 May 2012), Daniel O’Dea

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea

Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (14 March 2012), Daniel O’Dea

Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (24 February 2012), Helen Shurven

Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (28 June 2011), Daniel O’Dea

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Silver v Northern Territory of Australia (2002) 169 FLR 1, [2002] NNTTA 18 (1 February 2002), John Sosso

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (8 March 2002), Hon C J Sumner

WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (23 February 2012), Daniel O’Dea

Representative of the     Mr Malcolm O’Dell, Central Desert Native Title Services
native title party:            Ms Tessa Herrmann, Central Desert Native Title Services
Ms Irene Assumpter Akumu, Central Desert Native Title Services

Representatives of the     Mr Griff Ranson, State Solicitor’s Office
Government party:         Ms Alicia Warren, State Solicitor’s Office
  Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the     
grantee party:                 Mr Tony Hespe, Zenith Minerals Ltd

REASONS FOR DETERMINATION

1. On 23 February 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E69/2731 and E69/2732 (‘the proposed licences’, ‘tenement areas’) to Zinc Co Australia Ltd (now Zenith Minerals Ltd, ‘the grantee party’) and included in the notices a statement that it considered that the grants attract the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences comprise areas of:

   ·E69/2731 – 179.77 square kilometres, 152 kilometres north of Wiluna. It is 98.86 per cent within the determined area of the Birriliburu registered claim (WC98/68 – registered from 29 September 1998, part determined on 20 June 2008); and

   ·E69/2732 – 34.11 square kilometres, 149 kilometres north of Wiluna. It is 88.78 per cent within the determined area of the Birriliburu registered claim (WC98/68 – registered from 29 September 1998, part determined on 20 June 2008).

The proposed licences are partly overlapped by the Gingirana registered claim (WC06/2 – registered from 13 April 2006).  Both of the proposed licences are located in and around the Carnarvon Ranges.

1. On 22 June 2011, Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) on behalf of the Birriliburu native title holders (‘the native title party’) lodged expedited procedure objection applications in relation to the proposed licences (designated by the Tribunal as WO11/712 in relation to E69/2731 and WO11/713 in relation to E69/2732).

2. On 4 July 2011, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry to determine whether or not the expedited procedure is attracted. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for the inquiry. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

3. At an adjourned preliminary conference on 26 July 2011, the native title party requested that the matter proceed to inquiry.  At a status conference on 21 September 2011, the native title party requested further time to provide contentions and evidence and made further requests for extension on 2 November 2011 and 28 November 2011, citing delays in gathering evidence due to sorry business.  The native title party’s requests for extension were approved by Deputy President Sumner on 28 September 2011, 8 November 2011 and 6 December 2011 respectively.

4. The Government party lodged its evidence on 23 September 2011, followed by contentions in respect of each objection on 11 October 2011 (‘GVP Contentions 712’) and 14 October 2011 (‘GVP Contentions 713’).  The native title party lodged its evidence and contentions in respect of each objection on 28 November 2011 (‘NTP Contentions 712’ and ‘NTP Contentions 713’), followed by the affidavit of Mr Frankie Wongawol and a ‘collective statement’ made by senior members of the native title party on 2 December 2011.  The grantee party lodged contentions and evidence on 5 December 2011 (‘GP Contentions’).

5. On 28 November 2011, the native title party made an application to the Tribunal for the inquiry to be conducted by way of a hearing rather than by proceeding ‘on the papers.’  The native title party made the application on the basis that the native title holders had found it difficult to give detailed evidence about the cultural significance of the tenement areas through written affidavits available to both genders, and that it would be more culturally appropriate for them to give evidence at an on-country hearing, preferably restricted to men.  On 16 December 2011, I was appointed Member for the purposes of the conduct of the inquiry.  At a listing hearing held on 2 February 2012, further time was given for the Government party to respond to the native title party’s application.  Leave was also given for parties to file further submissions on the report of the Western Australian Auditor General entitled Ensuring Compliance with Conditions on Mining (‘the Report’), which the native title party had sought to rely upon in its contentions.

6. On 27 February 2012, the native title party indicated that, in lieu of a formal hearing, it was willing to present its on-country evidence by way of video. The Government party consented to, and I approved, the native title party’s proposal to present its evidence in video format, and on 28 March 2012 the native title party filed a Digital Versatile Disc (DVD) containing video evidence of a field trip to the Carnarvon Ranges conducted by native title holders and staff employed by Central Desert Native Title Service.  Further contentions were filed by the Government party on 17 April 2012 (‘GVP Response’) and by the native title party on 25 April 2012 (‘NTP Response’).     

7. Section 151(2) of the Act provides that the Tribunal may determine an application on the papers unless it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. Although both the native title party and the Government party indicated at various stages of the inquiry that the matter should be determined after a formal hearing, the parties have consented to arrangements aimed at avoiding the cost of a formal hearing. I do not consider that any party has suffered prejudice as a result of these arrangements. Accordingly, I am satisfied that the objection can be adequately determined on the papers.

Legal principles

1. 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.

1. In Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (8 March 2002) (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.

2. With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38] and [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker.  This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18 (1 February 2002).

Evidence in Relation to the Proposed Act

1. Government party documentation establishes the underlying land tenure on the proposed licences as follows:

E69/2731

·One National Estate Registered Site (NER/9895) overlapping at 25.8 per cent;

·One Proposed Conservation Park (PCP/153) at 21.4 per cent;

·One Use and Benefit of Aboriginal Inhabitants Reserve (CR 40930) at 2.2 per cent; and

·Two parcels of vacant crown land at 79.5 per cent and 18.3 per cent.

E69/2732

·One National Estate Registered Site (NER/9895) overlapping at 100 per cent;

·One Proposed Conservation Park (PCP/153) at 99.2 per cent; and

·One parcel of Vacant Crown Land at 100 per cent.

The Government party states that Proposed Conservation Park 153 ‘is currently managed by the Department of Environment and Conservation’ (GVP Response, para 8(a)), although the native title party maintains that the proposed park has been on the Register of the National Estate since 21 March 1978 and notes that the Government party has produced no evidence of management besides ‘standardised regulation’ (NTP Response, para 2.5-2.6)

1. There are no Aboriginal communities identified within or in the vicinity of the tenement areas.

2. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party shows that there are three registered sites within E69/2731:

   ·1182 – Carnarvon Range, painting, open access;

   ·1185 – Carnarvon Range Camp, artefacts/scatter, camp, open access; and

   ·2560 – Charralang/tjarralang, man-made structure, modified tree, quarry, artefacts/scatter, open access.

3. DIA documentation also indicates the following ‘other heritage place’ within E69/2731:

   ·3056 – Kanatukul (Serpent Glen), ceremonial, mythological, man-made structure, painting, engraving, artefacts/scatter, water source, closed access.

The site has not been registered and is currently classified as ‘information assessed’; however, Kanatukul was declared a protected area under s 19 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) on 9 October 1984 and published in the Government Gazette on 2 November 1984.  

1. Government party Quick Appraisal documentation also establishes in respect of proposed licence:

   ·E69/2731 – two pending exploration licences overlapping at 31.0 per cent and 69.0 per cent respectively and five dead tenements, including two exploration licences granted in 2008 and surrendered in 2009 overlapping at 31.0 per cent and 69.0 per cent respectively and three temporary reserves granted between 1959 and 1978, all of which were cancelled by 1980; and

   ·E69/2732 – one pending exploration licence overlapping at 100 per cent and five dead tenements, including one exploration licence granted in 2009 and surrendered in 2009 overlapping at 100 per cent and four temporary reserves granted between 1959 and 1978, all of which were cancelled by 1980.

2. The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4).

3. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard Condition 4 is also to be read with s 63AA of the Mining Act which requires approval by the DMP Environmental Officer of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with DIA and obtain advice from them that the proposed activities are acceptable.

4. In addition, the grant of the proposed licences will be subject to the following conditions:

   In respect to the area of land designated PCP 153 in TENGRAPH, hereinafter referred to as the designated area, 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 plan 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 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 unusual 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 [sic] areas (and/or associated monitoring sites) if applicable;

   ·   techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;

   ·   undertaking for corrective measures for failed rehabilitation;

   ·   details for 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 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.

1. The grant of E69/2731 is also subject to the condition that prior written consent be obtained from the Minister responsible for the Mining Act before commencing exploration activities on Reserve 40930.

2. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licences for their breach) will be imposed on the proposed licences:

   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.

3. Government party contentions (at GVP Contentions 712, para 5(f) and GVP Contentions 713, para 5(g)) indicate that a further condition will be placed on the grant of the proposed licences requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (‘RSHA’) as follows:

   In respect of the area covered by the licence the Licensee, if so requested in writing by Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation), the native title prescribed body corporate holding the determined native title of the Birriliburu People (Part A) applicant recognised in Federal Court application no. WAD6284 of 1998 (WC98/68) and/or Gingirana, the applicants in Federal Court application no. WAD6002 of 2003 (WC06/2), such request being sent by pre-paid post to reach the Licensee’s address, c/- M & M Walter Consulting, PO Box 8197, Subiaco WA 6008 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Mungarlu Bgurrarankatja Rirraunkaja (Aboriginal Corporation) and/or Gingirana, as the case may be, the Central Desert Regional Standard Heritage Agreement (‘RSHA’).

Contentions and Evidence provided by the native title party

1. In its contentions the native title party states that its objection is in relation to s 237(a) and 237(b) of the Act and that it ‘does not seek to pursue its objection in relation to sub-section 237(c) of the NTA as originally identified in the Form 4 objection’ (NTP Contentions 712 and NTP Contentions 713, para 1.4).

2. In support of its contentions, the native title party provided a DVD containing video evidence filmed at places in and around Kanatukul and Katjarra, a site 20 km north of the proposed licences (‘the Video’). Due to the culturally sensitive nature of the material presented in the Video, I made confidentiality orders pursuant to s 155 of the Act on 3 May 2012 which limit its disclosure to male members of the grantee party, the Government party and the Tribunal.

3. The native title party also provided  the affidavits of:

   ·Slim Williams, affirmed 26 October 2011 (‘SW Aff’);

   ·Robbie Wongawol, affirmed 26 October 2011 (‘RW Aff’);

   ·Miriam Atkins, affirmed 26 October 2011 (‘MA Aff’);

   ·Jorna Farmer, sworn 27 October 2011 (‘JF Aff’);

   ·Lee Sackett, affirmed 10 November 2011 (‘LS Aff’);

   ·Lindsey George Langford, affirmed 11 November 2011 (‘LGL Aff’);

   ·Lena Long, sworn 16 November 2011 (‘LL Aff’); and

   ·Frankie Wongawol, affirmed 1 December 2011 (‘FW Aff’).

The native title party also provided a signed but undated ‘collective statement’ made by ‘the senior initiated men (wati) who speak for the Carnarvon Ranges area’ (at para 1) in support of its application for an on-country hearing.

1. In the course of the inquiry, the native title party sought confidentiality orders limiting the disclosure of the affidavits of Mr Williams, Mr Robbie Wongawol, Dr Sackett and Mr Langford and the details contained therein.  I made an order to that effect on 3 May 2012.  Consequently, the restricted affidavits will not be reproduced in this determination.  However, the order was made with the proviso that the directions would not prevent the Tribunal from appropriately explaining the reasons for its decision.  In providing the reasons for this determination, I have found it necessary to refer from time to time to the contents of the affidavits.  However, I acknowledge the native title party’s wish to limit the disclosure of culturally sensitive material and I discuss the contents of the affidavits only to the extent necessary to explain my decision.[1]

   [1] The native title party did not seek s 155 orders in relation to the affidavit of Mr Frankie Wongawol, notwithstanding the fact that it deals with the same subject matter as the restricted affidavits. Accordingly, I have decided to extend those orders to Mr Wongawol’s affidavit and will not reproduce it in this determination.

2. The affidavit of Ms Atkins is made in the following terms:

   I, Miriam Atkins, of 22 Armstrong Way in Newman, in the State of Western Australia, pensioner, hereby sincerely declare and affirm:

   1.I am a Martu elder, from the Putijarra mob.  I am also a Director of the Birriliburu prescribed body corporate, which looks after our native title.

   2.I make this affidavit in support of the Statement of Contentions of the Native Title Party in relation to tenements E69/2731 and E69/2732.

   3.The information in this affidavit are all things I know to be true.

   4.I have been shown an A0 sized [sic] topographical map of both tenements by a staff members of Central Desert Native Title Services.  Both tenements are in an area that is called ‘the Carnarvon Ranges’.  I gave this affidavit while sitting at Good Camp, which is about 500m from tenement E69/2731 and about 3 kilometres from E69/2732.

   5.I was born on a station south of Nabaru Town (Newman), and went to school in Jigalong.

   6.My father is the one who told me about this country, the Carnarvon Ranges.  He told me about it before he passed away.  My family used to pass through the Carnarvon Ranges area when going to Jigalong for law business at Bondini, which is near Wiluna.  I remember one time when this happened I was twelve.  The Putijarra mob who travelled up through that area would stop with my father.  Three brothers, all passed away now.  They would talk about Kanatukul, this place here, and about Kajarra and Nungirri waterhole.  The English name for Nungirri is Talbot Rockhole.

   7.I know that the grandfather of Slim Williams – Willy Ward – he used to come through here on the way to law business.  All of the Putijarra families used to stop around here.  And on law business, when I was young, the Putijarra families would walk through here, then on to Kajarra and then walked up the rabbit proof fence to Jigalong.

   8.The area around Carnarvon Ranges is really important.  We came here for our native title determination because it is important and special.  Today I am at the Carnarvon Ranges, near to Kanatukul, for a meeting of our native title corporation.  We wanted to come here for our Annual General Meeting because this place is special.

   9.A range known as Kanatukul goes up into the northern part of the tenement E69/2731.  I’m not allowed to talk about what makes Kanatukul so special even though I’m an elder.  Only men can talk about that place.  Slim Williams, he can talk about that place.  His grandfather and grandmother were both Putijarra. 

   10.Kanatukul, and other places in the Carnarvon Ranges, are secret places.  These places are only for men, not for women.  The old people they talk to me about it, they tell me.

   11.Nobody is allowed to harm this place; not allowed.  If we let them drill in here, we’ll get into trouble, even if it is not our fault.  Mining companies, whitefellas, they got to come here and ask the right people for this country; they got to talk to the Putijarra elders.  The right person for the country can show whitefellas where it is safe to go and where it is dangerous.

   12.That tenement E69/2731 goes up to the area known as Blue Hills.  There was an old pastoral station there.  My father’s brother in law set up that pastoral station.

3. The affidavit of Ms Farmer is made in the following terms:

   I, Jorna Farmer, of Kutkabubba Community in the State of Western Australia, pensioner, do hereby swear and say on oath as follows:

   1.I am a native title holder and traditional owner for Birriliburu country.  I am also a director of the Birriliburu Prescribed Body Corporate, which holds the native title rights and interests on trust for the Birriliburu determination area.

   2.I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the objection to the expedited procedure matters.

   3.The information in this affidavit are things that I know to be true.

   4.I have been shown a A0-sized [sic] topographical map of the tenements for this matter by a staff members of Central Desert native Title Services.

   5.When I talk about ‘Carnarvon Ranges’, I mean the area known as the Carnarvon Ranges’, which includes tenement E69/2732 and part of tenement E69/2731.  That Kajarra, that is in the Carnarvon ranges as well.

   6.Two days ago, Birriliburu Prescribed Body Corporate had their annual general meeting at Good Camp, which is just 500m from tenement E69/27331 and about 3km from E69/2732.  We had our meeting at that place because it is an important place to Birriliburu people, a place we camp at and our old people camped at.

   7.I went to the determination at Good Camp, in the Carnarvon Ranges, right near those trees where we had the Birriliburu Prescribed Body Corporate meeting.  People came from everywhere, Warburton, Patjarr, Wiluna, they all came.  It was really cold when we went there for that.  That was the proper place for the determination as that is where the old people used to camp there, walk up and down all the time, like we do now.

   8.I’ve been going to the Carnarvon Ranges for a long time.

   9.20 years ago, my family was camping around Blue Hills, which is in tenement E69/2731 and back towards Well 5 and at Forbes Camp, which is about 5km from the tenement E69/2731, we were camping out there, getting sandalwood.  I was there with my family and all the boys that were staying with us, as well as some old people, Judy Stewart, Bob Abbott, Agiba Belgium and my husband’s brother, all passed away now.

   10.We worked there and we had all our kids working there, Clinton mob and Stewart Long.  There was a lot of Sandalwood there, we wanted to work where those trees were.  Also lots of Gidgee trees and Mulga trees get together with the Sandalwood they helped the Sandalwood grow.  So when you see all them together that is where the Sandalwood is.  We were camping at Well 5 first and then shifted into Blue Hills as there was a big creek there in the middle between those two with plenty of water, about 2km East of tenement E69/2731.

   11.We stayed at Blue Hills and Well 5 for 10 years and then we switch to Mungilli.  Now we go there to show the kids, but not working Sandalwood, only at Mungilli.

   12.The people from Blue Hills, father and son, could be relation to Miriam Atkins, and when the father passed away the son asked could you come and sit at that Carnarvon Ranges and look after it.  He asked all the mob that were staying at Blue Hills, when we were staying there 20 years ago.  Then it was really sad, the son passed away just a little while after that. We was [sic] looking after that one for a while and then we get Slim Williams to come for Kadibil family and start looking after it.

   13.We go camping at Blue Hills and Carnarvon Ranges all the time, at holiday time and to take the kids away from getting into trouble.  We take them to that place as it is a good place to go, you can go to Kajarra and there is good water, in both places.  We either take them to Mungilli or to Carnarvon Ranges, those are the two places we take those kids to get them out of trouble.

   14.We went on to Carnarvon Ranges early on this year before my husband passed away.  We went out camping there for about a week and then he said we better come back and then a month or two he finished.  It is a special place for us.  That was when the Birriliburu Rangers mob saw us.

   15.We was camping at Good camp [sic], close to where our meeting was for Birriliburu prescribed body corporate and determination, other side of the trees.  The Birriliburu Rangers were there doing work and they came and we were there at good camp [sic] with a big mob of people.  Then they went away and came back again putting those signs up.  We all sat down and ate together, they gave us some things and I made a damper for them.

   16.The Carnarvon Ranges is one of the most important places in Birriliburu country as the old people used to stay there, all Slim William’s family, Kadibil’s and Atkins family.  They come from there near Kajarra, old people used to say out there.  Slim William’s grandfather, he was one of them, he used to stay out there.  There was two brothers [sic].

   17.The old people used to go for the water there at Carnarvon Ranges, that belong [sic] to Slim William’s grandfather, and my old people too.  They knew what to sing out for the water to come down from Kajarra, really good place, comes out of the rock and fills the big rockhole up and comes down the hill.  That place still has water, even if its [sic] dry all around.

   18.We saw explorers once going toward Kajarra where the water is and my husband told them you can’t go there, there are special places there.  They packed up and took off then, didn’t see them again.

   19.Where we were sitting down the other day at Good camp [sic], we used to hear the noise coming from that hill, special place, right next to Good Camp just in that tenement E69/2731.  That noise was giving us a sign about that place.  A lot of old people could hear that all the time when we were at Good camp [sic] and they hear it a long time before you get to Good Camp.  When we were at Granite Peak and Forbes, you could hear it.  It used to go on for a long time, early on and then slow down as we stayed at Good camp [sic] longer.  You could hear it in the morning and at nighttime.  That hill is a dreaming place.  But that noise has slowed down now, when we go away and then when we come back, it may be there.  It doesn’t make that noise now.  We’ve been thinking about why that noise went away.  Could be the old people, you could ask Miparl, Frankie Wongawol.  Some of the old people still hear it.

4. The affidavit of Ms Long is made in the following terms:

   I, Lena Long, of 523B Scotia St, Wiluna in the State of Western Australia, pensioner, do hereby swear and say on oath as follows:

   1.I am a native title holder and traditional owner for Birriliburu country.  I was also a director of the Birriliburu Prescribed Body Corporate from December 2009 to October 2011, which holds the native title rights and interests on trust for the Birriliburu determination area.

   2.I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the objection to the expedited procedure matters.

   3.The information in this affidavit are things that I know to be true.

   4.I have been shown a A0-sized [sic] topographical map of the tenements for this matter by a staff member of Central Desert Native Title Services.

   5.When I talk about ‘the Carnarvon Ranges’, I mean the area known as ‘Carnarvon Ranges’, which includes tenement E69/2732 and part of tenement E69/2731.

   6.I went to the determination at Good Camp, in the Carnarvon Ranges, that spot was picked as it’s a nice place to camp and have that determination.

   7.I was born at well 7 and I was a baby at Well number 6, which is about 7km east of tenement E69/2731.

   8.When I was younger I used to stay at Granite Peak and we’d go up through that Blue Hills and then way up to Katjara and then back down to Carnarvon Ranges.  All my family, my nanna used to talk all around there, that Tenement E69/2731 and E69/2732.  My family knew about the west side of Birriliburu country, that was their country, all that area over the Tenements.  That is why I can talk about that area, I know about it too.

   9.I go up to the Carnarvon Ranges area whenever I can go with other people as don’t have a good motor car, otherwise we would go more often.  It’s a nice place to take the kids, to enjoy the bush life.  Good spot for bush tucker, looking for goanna, kids running around, emu eggs and turkey and all.

   10.There are plenty [sic] of bush turkey and emu’s [sic], biggest mob in that area around E69/2731 and around Blue Hills.

   11.When I was putting the signs up for Birriliburu country, with a big mob, we were putting up the boundary signs to tell people where Birriliburu country is, we saw an emu running around.  This was last year.  We were coming across from Well 6 and we just got north of Blue Hills on the road and we seen that emu, running around.  We wanted to stop because we knew he’d have eggs but we had to keep going to Good Camp to meet everyone up.

   12.Karnatukul is a big rockhole behind Good Camp, good water place, water is always there.  It’s rain water, it’s good to drink.  That place has been protected by old people for a long time.  It needs to be clean, not for swimming, it’s for animals to have a drink, that is how they survive.  It can’t be messed up, it will mean we’ll have nothing to show off in that country, no bush tucker.  It’s very important to keep those places like our old people did.

   13.There are some places ladies aren’t allowed to go in that Carnarvon Range, places where there is good water too, rockholes, but we can’t go there.  We can go to Karnutukul, there is sacred ground around there too.  People tell me that it is sacred to old people, men’s.

   14.Explorers, tourists can’t make camp there, make a mess there at Karnutukul, there needs to be Martu to show them where its [sic] safe and making sure they don’t make a mess there.  It’s a protected area for Martu people, our elders knew about that place we want it kept as it is now.

   15.If Explorer’s came in there, they can’t take that water, it looks after all that bush tucker.

   16.If companies came in drilling, there is a lot of wildlife in there and they might stop that wildlife being there, they might frighten them all away.  It’s there [sic] home, they need to be left in there [sic] place. 

   17.Blue Hills, we call him old camp, also has good water, that one on Tenement E69/2731.  We need to direct the tourists where they can go around that area too.  We put out signs to stop those tourists damaging the areas.

   18.I won’t talk about any jukurrpa through that country.  Men’s should be talking about that one.

   19.If we let those explorer’s come in, it would affect everyone, all Martu, we are all part of one, that is why we work hard to protect the special places.

   20.That area needs to be left as it is as it is a special place for Martu people.

1. The collective statement was made in support of the native title party’s application for the objections to be determined following an on-country hearing and is mainly directly to the reasons for such a hearing.  Accordingly, I have not found it necessary to reproduce the statement in full.   

2. Mr Williams states that he is a native title holder for the Birriliburu determination area and an initiated man.  Mr Robbie Wongawol also states that he is a native title holder for the area.  Mr Frankie Wongawol states that he is a wati (initiated man) and ‘one of the most senior men for the area of the Birriliburu native title determination’ (at para 1).  Ms Atkins states that she is a Director of the Prescribed Body Corporate and an elder from the Putijarra mob, who have traditional rights over the country.  Ms Farmer and Ms Long also state that they are native title holders and Directors of the Prescribed Body Corporate.  I accept that these deponents have authority to speak on behalf of the native title party.  I am also satisfied that the deponents who made the collective statement are senior initiated men for the Carnarvon Ranges area and have authority to speak on behalf of the native title party.  Although the statement is not in affidavit form or dated, the evidence has not been challenged and I am prepared to accept it.  The Government party does not dispute that the evidence provided by members of the native title party is ‘an accurate statement’ of their beliefs and concerns ‘and that those beliefs and concerns are genuinely held’ (GVP Response, para 38).     

3. The Government party submits that the anthropological evidence submitted by the native title party in this inquiry is of less assistance to the Tribunal.  The Government party argues that Dr Sackett’s affidavit is ‘largely devoted to a theoretical discussion of the concept of jukurrpa (or dreaming stories) and the intergenerational transfer of knowledge within the Native Title Party’ (GVP Response, para 40).  The Government party contends that Dr Sackett’s evidence is ‘very general in nature and does not establish much that is specific to the proposed tenement areas or which goes beyond the evidence already provided by members of the Native Title Party’ (GVP Response, para 40).  The Government party also notes that the evidence ‘does not appear to be relevant, or at least not directly so, to E69/2732 as there is no evidence from the Native Title Party that any jukurrpa traverses that area or that any particularly important sites are located within that tenement’ (GVP Response, para 40).  However, the Government party has not suggested that I should not accept Dr Sackett’s evidence or give it appropriate weight.

1. The Government party also doubts the usefulness of Mr Langford’s evidence.  The Government party contends that where Mr Langford’s affidavit ‘merely repeats’ evidence given the members of the native title party, the primary evidence of the Aboriginal witnesses should be preferred (GVP Response, para 41).  Conversely, the Government party submits that, to the extent that Mr Langford’s affidavit contains evidence not found in the affidavits provided by members of the native title party, it should carry little weight (GVP Response, para 41).  In this respect, the Government party relies on the Tribunal’s statement in WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (23 February 2012), Daniel O’Dea (‘Emergent’) that ‘anthropological evidence should not be relied upon to supply information that does not appear in the primary evidence.’  While the Government party submits that I should apply what it contends Emergent implies for how I should deal with the evidence of experts, the native title party submits that I should not follow what it understands to be the position expressed in Emergent.  I have recently addressed very similar submissions in Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (8 May 2012) (‘Murchison Metals’) at [27]-[30]. I reiterate what I said there. 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 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 Central Desert 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 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, I accept Mr Langford’s evidence and have given it adequate weight.

Contentions and Evidence provided by the Grantee Party

1. The grantee party filed contentions on 5 December 2011. The grantee party states that it is aware that Aboriginal heritage sites may exist in the tenement areas and is also aware of the requirements of the AHA. The grantee party explains that its policy is to search the DIA register when a tenement is granted and to ‘maintain and update a digital directory of registered sites which is accessible to staff working on the tenement’ (GP Contentions, para 10). The grantee party notes that it is aware that Aboriginal heritage sites may exist in the tenement areas that are not on the register or which ‘may not be recognisable to Company staff as Aboriginal heritage sites’ (GP Contentions, para 11). However, the grantee party observes that in the past it has relied on heritage protection agreements negotiated under the expedited procedure to protect such sites from interference during its exploration activities. The grantee party states that it has entered into 15 such agreements, pursuant to which it has completed 13 archaeological/anthropological clearance surveys and has on several occasions altered access tracks and eliminated or altered the sites of drills holes as a result of those surveys (GP Contentions, para 8). The grantee party notes that it has offered to enter into the RSHA with the native title party and is willing to enter into an agreement on similar terms if requested by the native title party.

2. The grantee party states that access to the proposed licences will be from the west via station tracks passing through the Ned’s Creek pastoral lease.  Accompanying the grantee party contentions is a map indicating the proposed access route.  The grantee party states (at GP Contentions, para 16) that its exploration programme will ‘focus initially on areas of outcrop’ (indicated on the map) and entail the following:

   •Identification of areas of interest using high resolution satellite imagery;

   •Investigation on the ground of areas of interest by a two man prospecting party.  They will access the area by vehicle and foot and complete geological mapping and rock chip sampling.  The prospecting party will access the area using existing tracks and driving across country from these existing tracks.  No new tracks will be constructed for this work.

   •If the prospecting results are encouraging sites may be tested by drilling.  As far as possible existing tracks will be used for drill access.  Some additional tracks may be required but will be kept to a minimum required for safe operation.

The grantee party also states that ‘in areas obscured by cover rocks the area will be prospected by helicopter and may also be tested by airborne geophysics.  Drilling may then follow as described above’ (GP Contentions, para 17).

The native title party submits that the grantee party’s contentions are not supported by affidavit evidence and therefore should be given little weight.  They note that the grant of the proposed tenements will not contain any restrictions on the range of activities they would be otherwise entitled to undertake.  Further, there is nothing to prevent the grantee party transferring the proposed tenements to another party who would not be encumbered by the grantee party’s current intentions (NTP Response, para 2.1 – 2.2).  I have dealt with this issue in Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (1 March 2007) (‘Butcher Cherel’) at [91]. There I said:

The question of whether interference with the sites of particular significance on the tenement area is unlikely in these circumstances rests on a careful balancing of the evidence before me. On balance, I have reached the conclusion that there is no real risk of interference with the sites of particular significance to the native title party. If I had not had the benefit of the sworn evidence of the grantee’s deponents concerning the manner in which they intended to conduct the exploration program in relation to the proposed licence, and the steps they intended to take in order to address the issues raised by the native title party in relation to ss 237(a) and 237(b), I would not have been satisfied that the risk was remote, and indeed, it may well have been real. After reaching the conclusion that the protective regime of itself was insufficient to render the risk remote, I had to consider whether the undertakings and indications given by the grantee party, unenforceable in any contractual sense, were sufficient to render a real risk remote. The native title party contended at paragraph 19 (as I have set out earlier in paragraph 61 above) that is was incumbent on the grantee to lead evidence of the basis on which the Tribunal can be assured interference, intentional or otherwise, is not likely, given the practical difficulties of locating and/or avoiding sites. I am not convinced that this proposition is an accurate statement of the relevant law but, in any event, I am satisfied that the grantee party has met the burden attributed to it. Having considered the way in which the Tribunal and the Federal Court have dealt with these matters in the past, and on the basis of the sworn evidence of the grantee party in relation to both their exploration intensions and risk minimisation strategies, I have come to the view that there is no real likelihood that these sites will be interfered with, by this grantee.

In that matter, the grantee party filed extensive affidavit evidence of its intentions and past record.  The current grantee party has not provided as extensive information and it is not sworn.  Those facts do not mean I disregard what they submit.  The material they have provided will be carefully considered in undertaking the process of predictive assessment required.

Consideration of Auditor General’s Report

1. Accompanying the contentions and affidavit evidence of the native title party was a copy of the Western Australian Auditor General’s Report entitled Ensuring Compliance with Conditions on Mining (‘the Report’). The native title party’s contentions draw attention to the Report’s findings regarding the AHA, specifically:

   ·‘DIA has not effectively monitored or enforced compliance with conditions on mines under the [AHA].  As a result, heritage sites may have been lost or damaged without the State knowing or acting’ (at 7);

   ·‘Monitoring and enforcement of environmental conditions need significant improvement.  Currently, agencies can provide little assurance that the conditions are being met’ (at 8);

   ·‘Significant weaknesses in information management make it difficult for DMP to analyse and demonstrate 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’ (at 8);

   ·‘We found that DIA has only undertaken inspections of heritage sites when responding to complaints it received, but has taken no enforcement action when it has found non-compliance.  Because DIA has not been actively monitoring compliance with Aboriginal heritage conditions, it does not know the actual incidence of breaches of those conditions’ (at 22).

Although the native title party acknowledges that the Report is confined to conditions on mining, it argues that there is no evidence that DIA has separate enforcement practices for mining and exploration activities and exploration activity is likely to be monitored less effectively than mining activity given the comparative volume of exploration tenements (NTP Contentions 712 and NTP Contentions 713, para 2.19).  The native title party submits that the Report indicates that the State’s regulatory regime is not effectively monitored or enforced and therefore the Government party’s contention that the regulatory regime reduces the likelihood of interference with sites of particular significance should be given little or no weight (NTP Contentions 712 and NTP Contentions 713, para 2.20). 

1. In reply, the Government party provided documents it filed in relation to another matter in which the Report had been raised, namely Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (24 February 2012), Helen Shurven (‘ASJ Resources’).  The documents comprised a ‘Statement of Contentions in respect of the Western Australian Auditor General’s Report entitled Ensuring Compliance with Conditions on Mining’ (‘GVP Contentions re Report’) and the affidavit of Aaron James Rayner, Chief Heritage Officer at DIA, affirmed on 16 February 2012.  The Government party’s contentions and the affidavit of Mr Rayner are discussed in detail in ASJ Resources.

2. The native title party sought and was granted leave to cross-examine Mr Rayner on the contents of his affidavit.  On the Tribunal’s direction, the native title party provided a list of ‘questions on notice’ for Mr Rayner prior to the hearing, which the native title party suggested Mr Rayner could answer by way of further affidavit material.  Mr Rayner provided a further affidavit addressing the native title party’s questions on 9 March 2012.   

3. In his affidavit of 16 February 2012, Mr Rayner states that ‘the Department does not accept, or considers that there are important qualifications to, some of the particular findings contained in the Report’ (at para 7). In particular, Mr Rayner states that there are aspects of the DIA’s compliance regime that the Report either did not consider or underestimated. Namely, Mr Rayner notes the contribution of self-reporting about damage or potential damage to Aboriginal sites and the requirement that at least two traditional owners monitor and inspect the activities of tenement holders near relevant sites imposed as a routine condition of the Minister’s consent under s 18 of the AHA. Mr Rayner also outlines measures that have been taken by DIA to improve its performance with respect to site monitoring and protection prior to and since the publication of the Report. These measures include the creation of a dedicated heritage compliance unit, who is responsible for conducting a programme of targeted and random audits in relation to approvals issued under the AHA, the first round of which was expected to be completed by March 2012. Mr Rayner notes that since November 2011, DIA has trained 12 regional heritage officers in seven regional areas of the State and a further six Senior Heritage Officers, and now has a total of 20 personnel across all regional areas trained in and working on heritage compliance. Another measure to which Mr Rayner refers is the DIA’s publication in November 2011 of Cultural Heritage Due Diligence Guidelines.  Mr Rayner also states that the DIA has a Memorandum of Understanding with DMP under which programmes of work that come within a 2 km radius of a registered site are automatically referred to the DIA; however, as Member Shurven noted (at [52]) in ASJ Resources, it is not clear whether this Memorandum of Understanding was in place prior to the Report or only after its publication.

4. The questions put to Mr Rayner by the native title party sought to clarify aspects of Mr Rayner’s response to the Report.  Several points emerge from Mr Rayner’s answers:

   ·Self-reporting occurs in the context of both mining and exploration activity (at para 2);

   ·Self-reporting typically involves informal communication to DIA by proponents and traditional owners (at para 2);

   ·‘No separate records are kept by [DIA] as to the number of reports from proponents in relation to exploration activity’ (at para 3);

   ·Reports of damage or potential damage to Aboriginal sites are referred to DIA’s Compliance Unit.  The normal investigative procedure includes steps such as contacting the informant, taking statements from the informant and other prospective witnesses (including experts) and visiting the site (at para 4);

   ·The condition requiring traditional owners to monitor and inspect a proponent’s activities near relevant sites ‘has been routinely applied to section 17 consents over all land uses including land uses relating to exploration and mining tenements’ (at para 6);

   ·The audit programme will include approvals issued in relation to exploration tenements (at para 8);

   ·Audits are conducted against the conditions of approval whether or not approval is given to damage or destroy sites (at para 9);

   ·Priorities for the audit programme are being chosen ‘at random,’ though high priority will be given to sites ‘of outstanding importance.’  DIA intend that targeted auditing will be conducted based on criteria such as history of non-compliance and reluctance to comply (at para 16);

   ·Regional officers will address issues relating to mining and exploration activities.  There are no regional officers stationed in the Central Desert representative region, the nearest being stationed at Kalgoorlie and South Hedland (at para 12-13);

   ·Administration of the AHA is the responsibility of DIA’s Heritage and Culture Branch and accounts for ‘approximately 25 per cent of [DIA’s] staff and approximately 10 per cent of its budget,’ though the effect of that investment on the prevention of damage to Aboriginal sites ‘is not readily illustrated by objective evidence’ and the AHA and Regulations ‘do not, in any event, universally prohibit damage to Aboriginal sites’ (at para 19-20);

   ·DIA’s Memorandum of Understanding with DMP applies to mining and exploration activities (at para 27);

   ·DIA does not advise the relevant native title claim or Prescribed Body Corporate of the proponent’s intention to conduct work within a 2 km radius of an Aboriginal site (at para 29);

   ·‘Appropriate consultation’ is considered by DIA ‘to require an exchange of information between the proponent and the relevant Aboriginal people sufficient to afford the Aboriginal people the opportunity to comment to the proponent on the proposed exploration work.’  DIA gives the proponent ‘details of all known Aboriginal people who have connection with, or knowledge of, the exploration area, the authorised representative body and prescribed body corporate (if applicable)’ (at para 29);

   ·DIA provides advice to proponents on ways to avoid impacts on sites by providing information about sites in the exploration area and recommending the redesign of exploration works to avoid damage or impact to sites after consulting in-house archaeologists and/or anthropologists.  DIA does not seek advice from the native title claimants or prescribed body corporate but ‘encourages the proponent to consult them’ (at para 30);

   ·DIA informs proponents of any sites that may be affected by proposed activities and recommends s 18 applications where proposed work may contravene s 17. Mr Rayner states that, while it may be possible for non-ground disturbing activity to breach s 17, he is ‘unaware of any instance where this has occurred’ (at para 31(b)); and

   ·DIA does not monitor cases where proponents proceed with a programme of works without applying for consent under s 18; however, Mr Rayner states that a s 18 application ‘is not the only option open to a proponent,’ who may decide to vary or not carry out the planned works in order to avoid a site (at para 31(a)).

5. In its further submissions on the Report (‘NTP Contentions re Report’), the native title party rejects the Government party’s contention that the Report’s findings are only relevant to conditions on mining.  The native title party argues that the evidence of Mr Rayner indicates that similar regulatory processes are in place for both mining and exploration activity and its findings can therefore be extrapolated to exploration (NTP Contentions re Report, para 3.1 – 3.7).  In this respect, the native title party argues that the findings made by Member Shurven in ASJ Resources should be adopted here (NTP Contentions re Report, para 3.10). The native title party contends that, in making the predictive assessment required by s 237(b), the Tribunal should have reference to the effectiveness of the regulatory regime to address unintended or potential damage to or destruction of sites (NTP Contentions re Report, para 4.3). In this respect, the native title party argues that ‘a considerable portion of the DIA’s regulatory regime relates to incidents where damage has already occurred, or has been authorised by the AHA’ (NTP Contentions re Report, para 5.3) and submits that the ‘proactive’ aspects of the regulatory regime, including the referral of programmes of work to DIA under the Memorandum of Understanding, are ‘almost entirely predicated upon the willingness of grantee parties to abide by non-binding processes’ (NTP Contentions re Report, para 5.10).

1. In its reply, the Government party indicated that it does not propose to make further detailed contentions on the Report and referred the Tribunal to its earlier contentions.  In short, the Government party makes the following submissions:

   ·the Report relates to mining operations and not exploration, so it was not ‘particularly relevant’ to this inquiry;

   ·the Report does not contain any information which bears on the predictive assessment in relation to s 237(b) of the Act to the extent of ‘whether it is likely or not that a particular grantee party will interfere with an area or site of particular significance’;

   ·the regulatory regime of the AHA does not necessarily mean ‘no area or site could ever be interfered with’, and

   ·improvements have been made to the regulatory regime since the Report data collection period ended (June 2011).

2. I largely agree with the findings of Member Shurven in ASJ Resources in relation to the impact of the Report. However I also accept the Government party’s argument that in order to establish that a protective regime operates effectively does not necessarily require universal compliance by enforcement of those protective procedures. The likelihood of interference with areas or sites of particular significance will ultimately depend on the conduct of the grantee party in question, regardless of the level of monitoring or whether or not the preventative (as opposed to reactive) aspects of the regulatory regime are binding on proponents. In this regard, I note Mr Rayner’s observation that, where DIA has recommended a s 18 application in respect of a particular programme of works, the grantee party may elect to discontinue or vary the programme in order to avoid the site. Although Mr Rayner concedes that DIA does not continue to monitor the grantee party’s activities where a s 18 application has not been made, that does not necessarily mean that the grantee party will breach its obligations under the AHA. As Member Shurven acknowledged ‘I do, however, agree with the Government party’s reply that weight must also be given to the evidence provided in relation to the proposed activities of each particular grantee party’ (ASJ Resources at [50]).

Community or Social Activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title parties (in the sense of there being a real risk of interference): see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith v WA’).  Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith v WA at 451 [26]. The assessment if also contextual taking account of other factors which may already have had an impact on the native title party’s community or social activities (such as mining or pastoral activity): Smith v WA at 451 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions imposed on exploration licences, the additional conditions and endorsements outlined above, and the fact that no Aboriginal communities are situated on the proposed licences, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.  The Government also contends that the grantee party’s willingness to enter into an RSHA with the native title party indicates its intention to consult with the native title party and avoid activities likely to interfere with the community or social activities of the native title party. 

3. In relation to s 237(a), the native title party makes the following submissions:

   ·there is a community of native title holders in the area – NTP Contentions 712, para 3.10 / NTP Contentions 713, para 3.10 / Video;

   ·the area of the proposed licences forms part of the ‘Carnarvon Ranges Area’ – NTP Contentions 712, para 3.11(a), 3.13(a) / NTP Contentions 713, para 3.11(a), 3.13(a) / Video;

   ·the Carnarvon Ranges Area, and the tenement areas in particular, is a specific focus of caring for country and land management activities, including cleaning of waterholes, regulation of access by outsiders and inter-generational knowledge transfer – NTP Contentions 712, para 3.11(d)-(e), 3.13(b)-(c) / NTP Contentions 713, para 3.11(b)-(c), para 3.13(b)-(c) / Video;

   ·the Carnarvon Ranges Area, and the tenement areas in particular, is an important location for community activities including inter-generational transfer of knowledge and keeping young Martu healthy and ‘out of trouble’ – NTP Contentions 712, para 3.11(f), 3.13(d) / NTP Contentions 713, para 3.13(d);

   ·E69/2731 is an important hunting ground and contains a permanent water source – NTP Contentions 712, para 3.11(b)-(c) / Video;

   ·the conduct of exploration activities within the tenement areas will interfere with the ability of native title holders to care for the country subject to the proposed licences by controlling the presence and activities of outsiders – NTP Contentions 712, para 3.12(b);

   ·the presence of exploration activities within the tenement areas will interfere with current and future land management and caring for country activities, done in accordance with traditional law and custom – NTP Contentions 712, para 3.12(a) / NTP Contentions 713, para 3.12(a);

   ·damage to water sources will interfere with the ability of native title holders to access water while in that country and hunt, the presence of water being a key reason for the presence of animals – NTP Contentions 712, para 3.12(c)-(d), 3.14(b) / Video;

   ·increased noise pollution as a result of exploration activity will interfere with the ability of native title holders to hunt – NTP Contentions 712, para 3.12(e);

   ·restrictions on access to the proposed licences will interfere with the ability of native title holders to access water while in that country, hunt and carry on community activities such as the inter-generational transfer of knowledge and keeping younger Martu ‘out of trouble’ – NTP Contentions 712, para 3.12(f)-(h);

   ·damage to water sources and a reduction in the number and species of animals caused by exploration activities through disruption to water sources or an increase human and mechanical presence (causing noise pollution) will interfere with the ability of native title holders to care for country through activities which maintain and promote biodiversity and contribute to the country’s overall health – NTP Contentions 712, para 3.14(c)-(d) / NTP Contentions 713, para 3.14(b); and

   ·the right to negotiate is required so that meaningful consultation and negotiations between the Native Title Party and the Grantee party occurs to ensure that community and social activities are not likely to be interfered with – NTP Contentions 712, para 3.15 / NTP Contentions 713, para 3.15.

4. The evidence establishes that:

   ·native title holders consider E69/2731 to be a good area for hunting and gathering bush tucker, particularly around the Carnarvon Ranges and Blue Hills – SW Aff,  para 26; FW Aff, para 8; LL Aff, para 9-10; LGL Aff, para 21;

   ·the presence of animals in the Carnarvon Ranges is ‘supported and encouraged’ by permanent water sources in the area – LGL Aff, para 21; SW Aff, para 26-27 / Video;

   ·native title holders visit the Carnarvon Ranges and Blue Hills to teach young Martu people about country and to ‘take the kids away from getting into trouble’ – LL Aff, para 9; LF Aff, para 13; RW Aff, para 16 / Video;

   ·the intergenerational transfer of knowledge  is a ‘fundamental aspect of maintaining the land and country’ and continues to occur in and around the Carnarvon Ranges – LS Aff, para 9-13; SW Aff, para 9;

   ·the native title holders have identified the Carnarvon Ranges as a focus for land management.  The Birriliburu Rangers, under the direction of senior traditional owners, visit the Carnarvon Ranges area once every two months to carry out land management and caring for country activities such as burning, cleaning waterholes and monitoring feral animals – SW Aff, para 26; FW Aff, para 8; RW Aff, para 10-11, 13, 15-16 / Video;

   ·the Birriliburu Rangers have entered into a contract with Rangelands NRM to continue their land management activities in the area and native title holders plan to establish a ranger’s station at Blue Hills – RW Aff, para 15; LGL Aff, para 25; and  

   ·native title holders have attempted to regular access to the proposed licences and surround areas by erecting signs in the tenement areas and carrying out work on E69/2731 to divert tracks and construct ‘more culturally appropriate routes’ – RW Aff, para 13-14; FW Aff, para 8; LL Aff, para 11; LGL Aff, para 16-17, 27 / Video.

5. In its contentions in response, the Government party submits (at GVP Response, para 59) that evidence of social or community activities asserted by the native title party, such as hunting and collecting water within the area of E69/2731, does not provide sufficient information to ascertain how often or where these activities occur, what is involved, or the number and identity of participants. Nevertheless, the Government party accepts that the asserted activities occur at least to some extent on or near the proposed licences. The Government party also accepts that the Birriliburu Rangers carry out land management activities within the Carnarvon Ranges generally; however, it notes that the evidence ‘is ambiguous as to whether the activities described occur within, or merely in the vicinity of, the proposed tenement areas’ (at GVP Response, para 60). The Government party accepts that some of the land management activities may have occurred in the vicinity of E69/2731 but submits that the evidence is insufficient to establish that the activities have occurred within or near E69/2732 (at GVP Response, para 60). In relation to the intergenerational transfer of knowledge and activities directed towards young Martu people, the Government party accepts that, to the extent they are ‘activities’ to which s 237(a) applies, they occur within the Carnarvon Ranges generally. However, the Government party submits that it is not possible to say whether these activities occur within, or merely in the vicinity of, the proposed licences, how often they occur or the number and identity of the participants (at GVP Response, para 61).

6. Based on the evidence before me, I accept that native title holders hunt and collect water on and in the vicinity of E69/2731.  However, none of the native title party’s witnesses describe how frequently native title holders visit the tenement area for the purpose of these activities.  Accordingly, I do not find that the native title holders make extensive use of E69/2731 for these purposes.  There is no evidence that hunting occurs on E69/2732 or that permanent water sources are located in the tenement area.  I also find that native title holders, through the Birriliburu Rangers program and under the direction of senior members of the community, carry out land management and caring for country activities on a regular basis on the proposed licences and within the Carnarvon Ranges Area generally, and that these activities are likely to expand with the establishment of a ranger’s station at Blue Hills.  I also accept that native title holders visit the Carnarvon Ranges to learn about country and take young people there to keep them ‘out of trouble,’ though it is unclear how often native title holders travel to the tenement areas for these purposes.    

7. I find that native title holders have taken measures to regulate access to areas within the proposed licences and the Carnarvon Ranges generally. Though I accept the Government party’s contention that s 237(a) is not a means by which exclusive possession is to be enforced, I am satisfied that the native title party’s activities directed at enforcing its right of exclusive possession fall within the meaning of ‘social and community activities.’ However, I cannot accept the native title party’s submission that the grant of the proposed licences will interfere with the ability of the native title holders to care for country by controlling the presence and activities of outsiders. Section 237(a) is concerned with the likely effect of the act on activities rather than rights and interests. Hence, s 237(a) will not be enlivened unless the evidence establishes that the proposed exploration activity is likely to directly interfere with the activities carried on by the native title holders to enforce those rights and interests.

8. The question then is whether the grant of the proposed licences is likely to result in direct interference with the social and community activities carried on by the native title party. The Government party contends (at GVP Response, para 62(a)) that hunting and exploration are ‘by their nature, inherently capable of coexistence.’ The Government party submits that ‘[a]lthough from time to time the Grantee Party and the Native Title Party may come across one another in the course of their activities in the proposed tenement area, it is not apparent that the activities of the Native Title Party will thereby be prevented or disrupted to any significant extent.’ The Government party makes a similar submission regarding the asserted restrictions on access to water sources within the tenement areas. Specifically, the Government party submits (at GVP Response, para 62(b)) that ‘the small risk that native title holders may wish to travel across the precise place where the Grantee Party may be present on any given day (i.e. that access to that spot is physically barred because there is a vehicle or a person occupying it) is not substantial enough to constitute interference in the section 237(a) NTA sense.’ In a similar vein, the Government party also submits that intergenerational knowledge transfer ‘is, by its nature, not something likely to be substantially interfered with by the grant of an exploration licence’ (GVP Response, para 62(d)).

9. The size of the Birriliburu determination area (66,709.81 square kilometres) suggests that it is less likely that the grant of the proposed licences will interfere with the native title party’s community or social activities.  However, the Carnarvon Ranges area has been identified by the native title holders as a focus for land management activities, and the evidence establishes that the area is visited on a regular basis by native title holders for the purpose of carrying on caring for country activities.  E69/2731 is also recognised by native title holders as a good area for hunting, though there is no evidence of the frequency with which hunting occurs within or in the vicinity of the proposed licences.  The native title party argues that exploration activity will interfere with native title holders’ ability to hunt, care for country and access water by restricting access to the tenement areas and by causing damage to water sources.  However, given the typically intermittent nature of exploration activity, I am not satisfied that the proposed exploration activity will restrict access to the tenement areas or water sources in a substantial or more than trivial way.  As the grantee party indicates, it intends to access the proposed licences using existing tracks and, if required for drilling, additional tracks will be created only to the extent necessary for ‘safe operation.’  In this respect, it is not clear how the grant of the proposed licences will interfere with activities involving the intergenerational transfer of knowledge or those aimed at troubled youth.  Nor are the grantee party’s activities likely to interfere substantially with the erection of signs or other activities aimed at regulating access to areas within the proposed licences.

10. Although the grantee party has indicated that it intends to carry out exploration by helicopter surveys, airborne geophysics and possibly drilling, I do not accept that these activities will have a substantial or lasting effect on the number of animals in the area and thereby interfere with hunting or caring for country activities.  I observe in this respect that, in relation to the areas designated as a proposed conservation park, which comprise 21.4 per cent of E69/2731 and 99.2 per cent of E69/2732, the proposed conditions of grant require the grantee party to prepare a detailed program for each phase of proposed exploration for written approval of the Director, Environment, DMP prior to engaging in any activity involving disturbance to vegetation and soils, including access and sampling.  The program must  describe the environmental impacts of the proposed exploration and programs for the management of their management and provide specific information about the proposed exploration including:

    ·descriptions of all vegetation types, land forms and unusual features likely to be disturbed by the proposed disturbances;

    ·details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;

    ·details of water requirements from within the designated area; and

    ·proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.

Nor am I satisfied that the grantee party’s activities are likely to cause damage to water sources within the proposed licences and the surrounding area.  The rights conferred by the Mining Act on holders of exploration licences include the right to take and divert water from any natural spring, lake, pool or stream: s 66(d).  However, the grantee party has not indicated that it intends to do so and there is no evidence that its activities will interfere with water sources in the proposed licences or the surrounding areas.

Sites of Particular Significance (s 237(b))

1. In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [15]-[16], the Register kept under the AHA shows there are three registered sites and one other heritage place within E69/2731, but this does not mean there may be sites or areas of particular significance to the native title party over the tenement areas or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the AHA, ss 20(5) and 63 of the Mining Act and the grantee party’s willingness to enter into an RSHA with the native title party to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether the protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

1. In relation to s 237(b), the native title party makes the following submissions:

   ·the proposed licences are part of the Carnarvon Ranges area – at NTP Contentions 712, para 4.25(a) / NTP Contentions 713, para 4.24(a);

   ·the Carnarvon Ranges area is an area of particular significance and is site rich – NTP Contentions 712, para 4.25(b) / NTP Contentions 713, para 4.24(b);

   ·the Wati Kutjarra (Two Goanna Men) and Marlu (kangaroo) jukurr traverse E69/2731 and the surrounding country, imbuing the Carnarvon Ranges with particular significance – NTP Contentions 712, para 4.24(b)-(c), 4.25(c) / NTP Contentions 713, para 4.24(d); 

   ·There are sites and areas of particular significance in E69/2731 that belong, or are connected to, jukurrpa tracks, including a serpent jukurr and the Karlaya (emu) jukurr – NTP Contentions 712, para 4.24(d);

   ·There are sites and areas of particular significance in E69/2731 which, through jukurrpa, form a ‘site complex’ with sites and areas of particular significance to the north of the tenement – NTP Contentions 712, para 4.25(d);

   ·there are a number of places in E69/2731 and the Carnarvon Ranges area that are ngulu (dangerous, secret) – NTP Contentions 712, para 4.24(e), 4.25(e) / NTP Contentions 713, para 4.24(e);

   ·there are a number of sites and areas in the Carnarvon Ranges are for which access to and information about is strictly regulated or controlled – NTP Contentions 712, para 4.24(e), 4.25(f) / NTP Contentions 713, para 4.24(f);

   ·the native title holders have taken special measures, including the placement of signs, to ensure the protection of sites and places of particular significance in the tenement areas and surrounding country – NTP Contentions 712, para 4.25(g) / NTP Contentions 713, para 4.24 (g) / Video;

   ·the fabric of the country on and immediately adjacent to (or in close proximity of) the proposed licences is imbued with a pervasive spirituality such that any entry onto the relevant land, which has not been agreed with the native title party, would be likely to result in interference – NTP Contentions 712, para 4.26 / NTP Contentions 713, para 4.25; 

   ·The nature and number of sites and areas of particular significance within and around the proposed licences reduces the utility of an endorsement on the grant of the proposed licence drawing the grantee party’s attention to the AHA and it is incorrect to assume that interference would be unlikely – at NTP Contentions 712, para 4.27 / NTP Contentions 713, para 4.26;

   ·The proposed condition requiring the grantee party to offer the RSHA does not mean that it is unlikely that the proposed licences will interfere with sites or areas of particular significance – at NTP Contentions 712, para 4.28 / NTP Contentions 713, para 4.27; and

   ·The right to negotiation is required so that meaningful consultation and negotiation between the native title party and the grantee party occurs to ensure that sites or areas of particular significance are not likely to be interfere with – at NTP Contentions 712, para 4.29 / NTP Contentions 713, para 4.28.

2. The evidence indicates that the native title holders regard the Carnarvon Ranges as a very important area.  The evidence also suggests that native title holders use the term ‘Carnarvon Ranges’ to refer to an area that is larger than the ranges themselves and extends as far north as Kajarra or Virgin Springs, which is approximately 20 kilometres from the proposed licences.  The evidence establishes that there are four registered or other heritage sites located in the north-east corner of E69/2731.  Three of these sites (Site ID 1182, 1185 and 3056) appear to be associated with or are at least referred to by native title holders as Kanatukul or Serpent Glen.  In this respect, the name ‘Kanatukul’ seems to refer to a range, the western part of which extends into E69/2731, as well as a group of related sites.  Kanatukul does not appear to be within E69/2732.  The evidence indicates that Kanatukul is intersected by the karlaya (emu) jukurr and a serpent jukurr, which connects Kanatuku to Katjarra (Virgin Springs) further north and travels toward Well 6 to the east of E69/2731.  There is evidence that, according to the traditions of the native title party, these jukurrpa (and the karlaya jukurr in particular) have ‘sat down’ in and around Kanakutul, leaving physical traces on the landscape.  The evidence also establishes that the wati kutjarra and marlu jukurr traverse E69/2731 and the surrounding area, and though it is not clear whether the marlu jukurr passes through Kanatukul, there is evidence which suggests that the wati kutjarra follows the karlaya jukurr through the Carnarvon Ranges.  The evidence also indicates that the wati kutjarra and marlu jukurr cross over at some point within E69/2731, though it is not clear where, and that the wati kutjarra jukurr is connected with a ceremonial ground in the north of the tenement on the south side of the Carnarvon Ranges.  Kanatuku is also the site of significant rock art, some of which is thought to have been made by the jukurrpa and is considered to have spiritual properties.  Access to and knowledge about the rock art site is restricted to initiated men, though other areas of Kanatuku are accessible to both men and women.  The evidence suggests that there are other ngulu areas within the tenement areas and the Carnarvon Ranges generally, but these areas are not specifically identified.  There is no evidence of specific sites or areas of significance within E69/2732.  The evidence establishes that native title holders have taken various measures to control access to particular sites and areas within the Carnarvon Ranges area, including Kanatukul.      

3. The Government party does not dispute that there may be sufficient evidence to demonstrate that Kanatukul satisfies the definition of a ‘site of particular significance’ (at GVP Response, para 78). However, the Government party rejects the native title party’s assertion that the Carnarvon Ranges area is ‘site rich’ (at GVP Response, para 86 -87). I have addressed in previous determinations the problems with importing the term ‘site rich’ into the predictive assessment required by s 237(b): see Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd (2012) NNTTA 24 (14 March 2012) (‘Geotech’); Murchison Metals.  However, as I acknowledged in those decisions, there may be circumstances in which the evidence suggests that there are sites of particular significance, especially where there are a number of such sites, where it will be incumbent on the grantee party to demonstrate to the Tribunal that interference, including inadvertent interference, can be avoided.  In other words, the specific characteristics of a given area may affect the Tribunal’s assessment of the likelihood of interference.  I note in this respect the native title party’s submission that the presence of ngulu sites and jukurrpa tracks within the Carnarvon Ranges means there is a real risk of interference with sites and areas of particular significance if native title holders are not consulted.

4. The Government party argues that the mere assertion that ngulu sites and jukurrpa tracks exist in a given area is insufficient to establish that these sites and areas are of particular significance to the native title party.  The Government party submits that, in order to qualify as a site or area of particular significance, the site or area must ‘[stand] out in some way from the general background of other sites and the country as a whole’ (GVP Response, para 83).  In this respect, the Government party submits that the Tribunal should take the same approach that it took in Emergent.  In Emergent, I drew a distinction, based on the anthropological evidence presented in that matter, between areas that could be considered generally significant within Western Desert law (such as areas that are subject to dreaming tracks) and areas that are manifestations of the specific activities of mythic beings.  I considered that these latter areas could be regarded as specific culturally significant areas, and therefore of particular significance to the native title party (at [39]).  Although there was evidence in that matter that several jukurrpa tracks traversed the tenement area, there was nothing to indicate the underlying significance of the jukurrpa tracks or their specific relationship to the land or water concerned.  On that basis, I distinguished Emergent from my earlier decision in Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (‘Allarrow’), where I found that the tenement area comprised ‘a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to the Martu religion’ and concluded that inadvertent interference was distinctly possible if the grantee party entered the area without the guidance of the native title party (at [40]).

5. In the present matter, the evidence establishes that Kunukutul is a point at which several jukurrpa converge and intersect.  The evidence also suggests that Kunutukul comprises a cluster of associated sites rather than an individual site.  The evidence also establishes that Kanakutul and other sites within the Carnarvon Ranges, such as the wati kutjarra ceremonial ground, are connected by, and draw their significance from, the jukurrpa, and are connected by songlines to other places of religious significance in Birriliburu country.  Accordingly, I accept that Kunukutul is an area of particular significance to the native title holders.  I also accept that, on the evidence before me, the ceremonial ground can be characterised as a site of particular significance.  However, I am not satisfied that the evidence establishes that the Carnarvon Ranges fall within either category, whether in the narrow geographic sense or in the sense of the broader area suggested by the native title party.  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 ranges constitute an area of particular significance to the native title party or what the boundaries of such an area would be.  Rather, the evidence indicates that Kanakutul is the focal point of the various songlines and stories that connect the area to the rest of Birriliburu country.  If Kunukutul is connected to Kajarri and possibly other sites to the north of the tenement areas, they are more appropriately characterised as discrete sites than a single area.  This interpretation is consistent with the Tribunal’s findings in Emergent and Allarrow.  While I accept that Kajarri and other sites to the north of the proposed licences may be sites of particular significance, I do not consider that the grant of the proposed licences is likely to interfere with these sites. 

6. Nevertheless, consistently with my findings in Allarrow, I do find that, given the concentration of sites and jukurrpa and the presence of ngulu areas within Kanakutul, inadvertent interference is a distinct possibility.  The Government party contends that there is no evidence that the native title holders regard mere access as interference.  Rather, the Government party submits that the evidence indicates that the native title party’s concern is not access per se, but that unsupervised strangers may go on to cause damage or get sick (GVP Response, para 93). On this basis, the Government party argues that, given the native title party has been offered (and has rejected) the RSHA, and the RSHA provides for consultation, the native title party’s contention that access cannot occur without consultation is in fact an argument that access cannot occur without consultation on its terms (GVP Response, para 100). Two points need to be made here. First, the Government party’s characterisation of the evidence is excessively narrow. The evidence clearly indicates that those responsible for the area have an obligation to ensure that people do not access areas which they are not authorised to enter in accordance with traditional law and custom. If that obligation is breached, those responsible for the area may be subject to traditional punishment. Second, the RSHA only provides for consultation in relation to ground disturbing activities and does not require the grantee party to consult with the native title party in relation to non-ground disturbing activities. In this respect, I accept the native title party’s contention that unauthorised access could result in the kind of interference contemplated by s 237(b).

7. The Government party contends that the grantee party is aware of its obligations under the AHA and has demonstrated its willingness to consult with the native title party by offering to enter into an RSHA with the native title party. However, as the RSHA only requires the grantee party to consult with the native title party in relation to ground disturbing activities and mere access is unlikely to contravene s 17 of the AHA, it is unlikely that compliance with the regulatory regime will reduce the risk of interference to Kanakutul. The grantee party states that it has entered into heritage agreements with other native title claimants and has altered access tracks and eliminated or altered the sites of drill holes to avoid interference with Aboriginal sites as a result of surveys conducted pursuant to those agreements. Nevertheless, the agreement which the grantee party proposes to enter into with the native title party does not provide a mechanism for consulting the native title party in relation to access and so is unlikely to reduce the risk of interference. I acknowledge that the grantee party has undertaken to avoid interference with Aboriginal sites on the proposed licences. However, the grantee party has not outlined how it intends to do so in the present circumstances. I note in this regard that the access tracks which the grantee party has identified pass directly through the area in question, even though Kanakutul is recorded on the DIA register and classified as a ‘closed’ site. As I observed in Geotech, it is incumbent upon the grantee party to provide evidence about how interference with sites of particular significance can be avoided.  In this case, I do not consider that the grantee party has done so to the requisite degree.  I accept that the grantee party has been put on notice about Kanakutul through the DIA Register and the material presented in this inquiry; however, I am not satisfied that the grantee party will be able to avoid interference with the site without consulting the native title party.   

8. The evidence establishes that the boundaries of the registered site and the physical range itself extend into the north-eastern corner of E69/2731.  However, Tribunal mapping shows that the western boundary of the registered site is approximately 4 kilometres from the eastern boundary of E69/2732.  Furthermore, the evidence suggests that the grantee party will be able to access E69/2732 without travelling through or within the vicinity of Kanakutul.  In the circumstances, I find that there is a real risk of interference with Kanakutul as a result of the grant of E69/2731; however, given its distance from Kanakutul and in the absence of evidence indicating other sites in the tenement area, I find that the grant of E69/2732 is not likely to lead to interference with sites of particular significance.  

Major Disturbance to Land and Waters (s 237(c))

1. The native title party has not adduced any evidence or made any contention in relation to s 237(c) and has ‘amended’ its objection to remove any reference to that section of the Act. The only material before me in relation to this matter is the Government party’s contentions and the evidence submitted in support of those contentions and I am satisfied on that basis that the grant of the proposed licences are unlikely to result in disturbance of the kind contemplated by s 237(c).

Determination

1. The determination of the Tribunal is that:

   ·   the grant of Exploration Licence E69/2731 to Zenith Minerals Ltd is a not an act attracting the expedited procedure; and

   ·   the grant of Exploration Licence E69/2732 to Zenith Minerals Ltd is an act attracting the expedited procedure.

Daniel O’Dea
Member
2 July 2012