Ngarluma Aboriginal Corporation RNTBC v Sageland Pty Ltd - [2021] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Ngarluma Aboriginal Corporation RNTBC v Sageland Pty Ltd & Another [2021] NNTTA 4 (12 February 2021)

Application No:

WO2020/0428

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

and

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

Ngarluma Aboriginal Corporation RNTBC (WCD2005/001)

(native title party)

and

Sageland Pty Ltd

(grantee party)

and

State of Western Australia

(Government party)

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

Tribunal:	The Hon J.A. Dowsett, AM, QC
Place:	Brisbane
Date:	12 February 2021

Catchwords:	Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with community or social activities – whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act1972 (WA) ss 5, 17, 18, 28 Native Title Act 1993 (Cth) ss 29, 30, 30A, 31, 32, 237 Mining Act 1978 (WA) ss 57, 63, 63AA, 66
Cases:	Daniel v State of Western Australia [2005] FCA 536 FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation [2014] FCA 1335 Little v State of Western Australia (2001) FCA 1706 Moses v State of Western Australia [2007] FCAFC 78 Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 Yamangu Ngaanyatjana Panna Aboriginal Corporation v ACN 159 782 537 Pty Ltd [2017] NNTTA 10 Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 Yorta Yorta v Victoria (2002) 214 CLR 422
Representatives of the native title party:	Sharon Gillon-Grey, Yamatji Marlpa Aboriginal Corporation Kelsi Forrest, Roe Legal Services

Representative of the grantee party:

Peter Brammall, Sageland Pty Ltd

Representatives of the Government party:

Lauren Pike, Department of Mines, Industry Regulation and Safety

Emily Archer, State Solicitor’s Office

REASONS FOR DETERMINATION

INTRODUCTION

Ngarluma Aboriginal Corporation RNTBC (the “Native Title Party”) holds native title on behalf of the Ngarluma People over an area on the Western Australia coast, east – south east of Karratha and Roebourne (the “determination area”). The relevant determination decisions are Daniel v State of Western Australia [2005] FCA 536, Moses v State of Western Australia [2007] FCAFC 78 and Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 (the “Determinations”). On 31 January 2020 the Government of Western Australia, Department of Mines, Industry Regulation and Safety (the “State”) gave notice of its intention to grant (the “proposed grant”) an exploration licence (E47/4076) (the “proposed tenement”) to Sageland Pty Ltd, (the “Proposed Grantee”). The proposed grant is to be made pursuant to s 57 of the Mining Act 1978 (WA) (the “Mining Act”). The proposed tenement lies within the boundaries of the determination area. The notice was given pursuant to s 29 of the Native Title Act 1993 (Cth) (the “Native Title Act”). For the purposes of s 29(4) of the Native Title Act the notification day was 7 February 2020. The notice contained a statement to the effect that the State considers that the proposed grant attracts the expedited procedure (the “expedited procedure statement”). Section 29(7) of the Native Title Act contemplates the inclusion of such a statement. Its inclusion engages s 32 of the Native Title Act.
Sections 30, 30A, 31 and 32 of the Native Title Act establish a system for negotiation in good faith in connection with the proposed grant of an interest such as the proposed tenement. If a notice pursuant to s 29 contains an expedited procedure statement then, subject to s 32, the State may grant the proposed tenement, without the parties engaging in such negotiation. However if, pursuant to s 32(3), a native title party lodges an objection to the expedited procedure statement, then the parties identified in s 30A must negotiate, unless this Tribunal (the “Tribunal”) determines that the proposed grant is an act attracting the expedited procedure. See s 32(5). The term, “act attracting the expedited procedure”, is defined in s 237 of the Native Title Act as follows:
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.

THE PROPOSED TENEMENT

The proposed tenement lies within the determination area, about 8 km east-south-east of Roebourne. It comprises about 2878.94ha. The State has indicated that the proposed tenement contains six sites which are registered pursuant to the Aboriginal Heritage Act1972 (WA) (the “AH Act”). They are identified in Annexure 3 to the State’s contentions. I attach that document as Schedule 1 to these reasons. A map provided by the State indicates that there are two other registered places within 2 kms of the proposed tenement and numerous other registered sites to the north-west, and within 10 kms of it.
Sections 63 and 63AA of the Mining Act impose the following conditions on the grant:
63 Condition attached to exploration licence
Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and —
(a)     will promptly report in writing to the Minister all minerals of economic interest discovered in, on or under the land the subject of the exploration licence; and
(aa) will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless —
i.the holder has lodged in the prescribed manner a programme of work in respect of that use; and
iia.the holder has paid the prescribed assessment fee in respect of the programme of work; and
ii.the programme of work has been approved in writing by the Minister or a prescribed official;
and
(b)    will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are —
i.made while exploring for minerals; and
ii.in the opinion of the prescribed official, likely to endanger the safety of any person or animal;
and
(c)     will take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.
63AA Conditions for prevention or reduction of injury to land
1.On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.
2.A condition imposed under this section may be cancelled or varied by the Minister at any time.
3.A condition imposed in relation to a licence under this section —
a.may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and
b.whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.
The rights conferred by an exploration licence are prescribed by s 66 of the Mining Act as follows:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, in accordance with any conditions to which the licence may be subject –
4.to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, or under the land;
5.to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
6.to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
7.to take and divert, subject to the [Rights in Water and Irrigation Act 1914 (WA)], or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
The proposed grant will also be subject to the following endorsements or conditions, amongst others:
1.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines, Industry Regulation and Safety. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, Department of Mines, Industry Regulation and Safety.
2.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
3.Unless the written approval of the Environmental Officer, Department of Mines, Industry Regulation and Safety is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
There are also endorsements and conditions concerning water.

NATIVE TITLE RIGHTS AND INTERESTS

The relevant determinations identify the following rights and interests:
4    The native title rights and interests in the Ngarluma Native Title Area (including, for the avoidance of doubt, that part of the Yindjibarndi Native Title Area which overlaps the Ngarluma Native Title Area):
a)   do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and
b)   are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).
4A The native title rights and interests in Yindjibarndi Native Title Area are subject to and exercisable in accordance with the traditional laws and customs of the Yindjibarndi People.
4B The native title rights and interests in those parts of the Yindjibarndi Native Title Area which do not either form part of the Yindjibarndi Exclusive Possession Area or overlap the Ngarluma Native Title Area do not confer possession, occupation, use and enjoyment of that land or waters on the Yindjibarndi People to the exclusion of all others.
…
6    Subject to paragraphs 4 and 8 to 15 inclusive, the Ngarluma People have the following non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area:
a)   A right to access (including to enter, to travel over and remain);
b)   A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
c)   A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;
d)   A right to fish from the waters;
e)   A right to collect and forage for bush medicine;
f)    A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan);
g)   A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);
h)   A right to take black, yellow, white and red ochre;
i)    A right to take water for drinking and domestic use;
j)    A right to cook on the land including light a fire for this purpose;
k)   A right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

THE OBJECTION

The grounds of the Native Title Party’s objection appear in para 7 as follows:
The Objector believes the [proposed grant] … is an act not attracting the expedited procedure because it will interfere with, or involve the matters described in, one or more of the paragraphs (a), (b) and (c) of section 237 of the [Native Title Act].
Impact on community and social activities
The Common Law Holders engage in community and social activities in all the country identified on the map which includes the [proposed tenement]. The [proposed grant] of the [tenement] will significantly impact on the objecting community’s conduct and enjoyment of these community and social activities.
Their connections to the country are maintained through access and camping, hunting game, collecting bush tucker and medicines and other resources of the area, such as wood and water, as well as visiting and looking after sites and carrying out rituals, religious and cultural activities. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers. Drilling activity and costeaning and other exploration activity will also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. It will also not be possible to access and camp in the areas where the exploration is proceeding. The exploration activities will directly interfere with the Common Law Holders' capacity to travel, hunt, camp and access food, water and other resources and protect sites by dislocating them from these resources. Dislocation from these areas of land will adversely impact on their capacity to maintain these traditional community activities and lifestyle.
The social and community activities of the Common Law Holders also encompass their religious and cultural activities, and activities associated with their law and custom, including the regulation of those laws and customs. The [Native Title Party] believes that, by allowing the [proposed Grantee] to enter and access the [proposed tenement] without consultation, the [proposed grant] will directly impact on the Common Law Holders' capacity to order their community and social activities based on their customs and beliefs, by denying those persons who have responsibility to care for the land the capacity to properly exercise their obligations.
Impact on sites and areas of particular significance
The [proposed grant] of the tenement is likely to impact and interfere with sites or areas of particular significance as the [proposed Grantee] may inadvertently interfere with sites or areas of significance by not knowing of their existence. Information about sites and areas of particular significance is usually held by elders, many of whom cannot read, write or interpret maps. They can usually only identify the areas that will be impacted when they know the exact area that will be affected. Further details of any sites or areas of particular significance that are within the [proposed tenement] area will [be] provided.
Also, there are artefact scatters in the area of the [proposed tenement] left by the ancestors of the Common Law Holders. These artefacts are often not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the historic activities and movements of the ancestors of Common Law Holders. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to the area of proposed exploration activity as well as the exploration activity itself is likely to destroy these artefact scatters unless they are properly identified, recorded and protected.
Exploration activities, including the use of mechanised equipment for the purpose of drilling for and extracting ore, may result in the destruction of sites and areas of particular significance, with consequent damage to the Common Law Holders' beliefs and well-being. The Common Law Holders have responsibilities for protection of sites and activities in their country which have wider social or cultural relevance beyond their country. Damage to such sites and areas of particular significance would have repercussions for both the Common Law Holders and the integrity of the wider Aboriginal society.
Exploration activities could also involve entry upon or over areas of high cultural or gender sensitivity in respect of which access is restricted, or in locations where cultural and ceremonial activities are conducted which are necessary to the preservation of the integrity of the society of which the Common Law Holders form part.
Further, the relevant Minister may permit the interference with sites or areas of significance if it is believed by the Minister to be in the public interest, even if it is not in the interests of the Common Law Holders.
Disturbance to land or waters concerned
The grant allows the [proposed Grantee] unlimited access to and throughout the [proposed tenement] for a period of five (5) years, including access by motor vehicles and heavy machinery in unlimited numbers. It does not restrict where the [proposed Grantee] may conduct exploration activity within the [proposed tenement] and it permits, inter alia, the removal of up to one thousand (1000) tonnes of material from land within the [proposed tenement]. Unlimited numbers of new vehicle tracks can be created anywhere within the [proposed tenement] and can be used repeatedly for up to five (5) years.
The [Native Title Party] believes that new vehicle tracks and other mining activities permitted by the grant, including the digging of pits, trenches and holes, the sinking of bores and tunneling, are likely to impact on the land and waters of the [proposed tenement]. Such activities would result in wind and water erosion, changes to land contours, damage to bush and other natural habitats, interruption and diversion of natural water flows and impacts on the natural ambience of the area.
This may occur anywhere within the [proposed tenement] and its access routes.
The [Native Title Party] believes the activities described above will create a major disturbance to the land and waters of the [proposed tenement].

NATIVE TITLE PARTY’S EVIDENCE

The Native Title Party has provided affidavits by eight people. One deponent, Tiwatope Olowoyo, is an anthropologist. The other deponents are Aboriginal people. To some extent their evidence is repetitive. Some of it relates to their preferences and opinions as to the proposed grant, rather than the matters identified in s 237.
Mr Olowoyo is employed by Terra Rosa Consulting as a senior anthropologist. The Native Title Party requested the services of Terra Rosa in undertaking a field trip with senior Ngarluma People and others, concerning the proposed tenement. Mr Olowoyo has worked as an applied anthropologist over the past 8 years, throughout Western Australia. He has been employed by private sector cultural heritage consultancies and acted as a consultant for local and state bodies.
Between 24 July 2020 and 30 July 2020, he and Mr Richard Walker, the Native Title Party’s heritage manager, undertook field trips to the proposed tenement with senior Ngarluma People and others connected to the area, including David Walker, Keith Churnside, Michael Walker, Sidney Walker, Marshall Smith, Allery Sandy, Elizabeth Megan Smith and Timothy Douglas. Mr Olowoyo refers collectively to those people as the “Elders”. Not all of them claim to be Ngarluma men or women. Of these Elders, all but Elizabeth Megan Smith have sworn affidavits in this matter.
On the field trips Mr Olowoyo and others visited the following locations within the proposed tenement:
(1)Five Mile Law Grounds (also known as “5 Mile Well”);
(2)Kurrangar Talu; and
(3)Area occupied by the Mingullatharndu community (sometimes referred to in the affidavits as “5 Mile”).
Mr Olowoyo and the Elders discussed the important sites which they visited. They also discussed the Harding River and East Harding River which flow through the proposed tenement. Mr Olowoyo took notes of the discussions for the purpose of preparing affidavits for these proceedings. The discussions included individual interviews with the people in question.
Mr Olowoyo says that the proposed tenement is located on the flood plains of the Harding and East Harding Rivers, and that this area is sensitive to the Ngarluma People for reasons of anthropological, historical, social, traditional, spiritual, mythological, and environmental importance. Despite this long list of allegedly relevant academic disciplines, there is very little evidence relating to them. Mr Olowoyo says that rivers and waterways, including permanent pools (yintha), are, and have always been, fiercely protected and contested, particularly in times of drought. At para 8 of his affidavit, Mr Olowoyo seems to suggest that the area occupied by the Mingullatharndu community (the “community area”) is a registered site under the AH Act. The State’s evidence demonstrates that it is not. He says that the three locations are near, or in permanent water sources around the Harding and East Harding Rivers and associated waterways.
Mr Olowoyo says that the proposed tenement is connected with the Pilbara strike, which strike occurred in 1946. The strike is important in Aboriginal history in that it concerned equal wages and equal rights as between Aboriginal and non-Aboriginal workers on pastoral properties. The strike was instigated by Don McLeod. As far as I know, he was not an Aboriginal man. He established a residential camp in the community area, apparently in connection with the strike. It is said that the community area holds a significant historical connection for the Ngarluma people as the place where planning and execution of the strike began. The Elders told Mr Olowoyo that it is important that they be able to bring future generations of Ngarluma people to this place to acknowledge the challenges overcome, and the opportunities created by the Ngarluma People. In its contentions, the Native Title Party treats the community area as being relevant to its case based on s 237(a) of the Native Title Act. However the State, in its contentions, noted that some of the evidence might suggest that it is also an area or site for the purposes of s 237(b). Its characterization as having a, “significant historical connection” for the Ngarluma people is not necessarily equivalent to its characterization as an area or site of particular significance in accordance with the native title holders’ traditions.
5 Mile Law Grounds (also known as “Five Mile Well”) is an highly restricted and old ground. Mr Olowoyo was not allowed to visit the site for reason of cultural restriction. The male Elders visited the site and spoke with him about it, addressing its significance. Many of the Elders had family members who went through their initiation rites of passage at 5 Mile Law Grounds and stated their connection with the area within the proposed tenement.
Mr Olowoyo says that any written material concerning 5 Mile Law Grounds should be marked as “confidential”, and access to it restricted, due to the sensitive nature of the information surrounding it. However it is for the Native Title Party to seek such relief, not Mr Olowoyo. He says that it is said to be a very rare and highly significant ceremonial site. It has been closed down but nonetheless retains its significance to the Ngarluma, Yindjibarndi, Banjima and Njamal People. It is a location for Pilbara men’s rites of passage during law time. Timothy Douglas, a senior Yindjibarndi law man, explained to Mr Olowoyo the rare strength of the place, and how it had to be shut down some years ago due to its spiritual power. Mr Olowoyo says that the law which was carried on there was “too strong” and required a highly experienced law man to control it. He asserts that as Mr Douglas was the last Yindjibarndi law man having such skill, he had directed its closure. As he is connected to Ngarluma country through his grandmother, he was responsible for the management of that law ground.
Mr Olowoyo says that there are grave concerns for the protection of the 5 Mile Law Grounds, given the proposal for exploration and mining on the proposed tenement. He expresses the opinion that, “based on my experience with sites of this nature”, any further unrestricted incursions on the law ground would be seen as highly disrespectful, and in breach of Ngarluma law and culture. It would be very difficult to achieve positive agreement outcomes between the Native Title Party and the Proposed Grantee if this type of “breach” occurred.He says that an additional consequence of incursions on the site could be produced by the “powers of retribution” which still exist “in the spirit domain”. These powers have the ability to cross over into our world and wreak havoc, if not mediated correctly by Ngarluma Law men. Such havoc might involve illness or death for those who trespass.
Kurrangar Talu (or Thalu) was identified on the field trip as a place of cultural significance and an “increase site for the March Fly”. The term “increase site” is not clearly explained. Probably, it is a place at which the march fly breeds. Mr Olowoyo attaches a “site file” for Kurrangar Talu. He says that the file includes details of the site and its significance to the Ngarluma People. I shall discuss its content at a later stage. Mr Olowoyo asserts that Kurrangar Talu provides a unique understanding of the importance of the fly as an important and diverse resource in the local ecosystem.Kurrangar Talu is located in the Harding River (Ngurin), within the proposed tenement. It is comprised of a dome-topped, granite rock with three white line markings on the top of the dome, representing the markings on the back of the march fly. Mr Olowoyo says that Kurrangar Talu and associated waterways are home to birds, reptiles, insects, native plants and the Ngarluma People.
Mr Olowoyo gives a substantial amount of information concerning talus generally. They are places of immense power. The lawmen, who are charged with activation of the site, can harness this power. A talu site relates to much more than resource increase or control. It is about knowledge pertaining to an increase in energetic properties in time and space. It provides a portal for a chosen person to converse directly, in Ngarluma language, with the powers of creation (in this case the spirit fly) to bring more or less of something to the material world. This knowledge of operating or activating a talu is not simply about controlling a resource, or even controlling access to a place, but also about the recognition, integration and manifestation of holistic creative power. The very activity of talu operation demonstrates that, “the most senior and powerful humans in the group are paying attention to the smallest changes in the health of Country and communicating this information directly to the spirit world”.
One suspects that this rather abstract description is the product of other study, rather than the traditional owners’ account of Kurrangar Talu’s particular significance. Mr Olowoyo also says that in some talu sites, harnessing such energy can be very dangerous if used in the wrong way. For instance, too much of a resource can be harmful to “People and Country”. Mr Olowoyo says that the Elders stated that Kurrangar Talu is an old talu site, which is likely to have been activated to bother enemies with increased numbers of march fly. However the site file, referred to above, suggests that at the time of its preparation (possibly 1990) the old people were not sure about the talu’s use. It is said only that it was possibly used against enemies.
Mr Olowoyo says that the health of people and country is paramount in relation to this talu. It sits within a very important permanent water source, known as Ngurin. Mr Olowoyo considers, based on his experience with sites of this nature, that the effect of unauthorized access would be to upset the delicate balance of power embodied in the balance of the local eco-system, the spirit of the march fly, the spirits of deceased ancestral lawmen and purity of Ngurin. The site could be dangerous and powerful, and should not be approached unless accompanied by senior Ngarluma lawmen. For these reasons it is also an important instructional site for imparting knowledge about Ngarluma traditional rites and customs.
Mr Olowoyo was informed (by Mr Marshall Smith) that the community area was established in 1991 as a safe haven for Ngarluma People and its broader Aboriginal community, in which place they might experience a community of peace away from surrounding towns and associated anti-social activities. At paragraph 19 of his affidavit Mr Olowoyo says:
“As lease holders for the community, Marshall and Elizabeth Smith are concerned for the wellbeing of the people at Mingullathandu Community if there is to be exploration and mining at [the proposed tenement]. As Mingullathandu Community is a culturally and socially significant place for Ngarluma People, Marshall Smith reiterated the importance of not disrupting the community through exploration and mining activities.”
The meaning of the term “lease holders” is unclear. Mr Smith claims to have obtained a lease, presumably from the Crown. The State asserts that the community is located on private land. That assertion has not been contradicted. It is of some significance.
The site file previously mentioned is said to be, “A Description of some of the Tribal increase sites of the West Pilbara written in both Ngarluma and English language”. The document was prepared by Mr David Daniels and appears to have been edited by Mr Robert Reynolds from the Department of Aboriginal Sites in the Western Australia Museum. The document, as it deals with the march fly and the Karangar (sic) Talu, is quite brief and describes the way in which one might, “make this talu work”. It is not presently necessary that I provide details of this process. It asserts that the talu has not been used for a very long time and, as I have said, that old people were now, “not too sure”, as to its function.
Much of Mr Olowoyo’s evidence appears to reflect his own experience, general knowledge and opinions rather than those of Ngarluma People. Seven of those people have provided affidavits. It is unfortunate that they do not directly address the more important aspects of Mr Olowoyo’s evidence. The Tribunal would have benefited from such evidence. I turn to those affidavits.
Mr Marshall Smith says that he is a Banjima man, aged 68 years. His eldest brother, Des Smith (deceased), “went through the Law ground in 1965 at Mingullatharndu (5 Mile)”, clearly a reference to 5 Mile Law Grounds, and not to the community area. Mr Marshall Smith was then only 13 years of age. His father worked as a fencing contractor for Mr Murrary Stove and family, who owned Mount Welcome Station. Whilst Mr Smith was fencing at the Roebourne Racecourse, he and others would support and visit his brother as he was going through Law at that time. Mr Smith took up a lease at Mingullatharndu, apparently over the community area, and has lived there since 1991. He appreciates the fact that the Ngarluma People have supported “us since we started living here”.
Mr Smith was shown Kurrangar Talu by his nephew, Trevor Solomon. Another affidavit (Ms Sandy’s) identifies Mr Solomon as a Ngarluma man. Mr Smith says that with talu sites, there is always a ceremony of dancing and singing, in this case creating the season of march flies. It is a thanksgiving for a particular site, recognizing its purpose, namely providing a resource. He says that if an exploration company or miner is not aware of the location of places such as this or, “doesn’t care that it is there”, it may be disturbed or destroyed. Mr Smith says that, “this site should still be left alone”, and that, “if it’s gone you can’t take the kids there and explain what these important places are about. You can’t explain the cultural significance of it if it is destroyed”. However the site is clearly marked in the relevant State records and in the evidence before the Tribunal.
Under the heading, “community impact”, Mr Smith says, “We don’t want disturbance by heavy machinery at Mingullatharndu Community. We don’t want exploration workers and miners coming through creating unnecessary disturbance here. Any workers would need to come through a different entrance, not the one that comes through Mingullatharndu”.
At paragraph 8 of his affidavit, Mr Smith states:
“People come out to Mingullathandu because it is a place where they can come and have time out. [T]hey get to see and experience a peaceful community. When people have time out they do have chances to change their lives and lifestyle for the better. There are boundaries out here that we have set and they respect at Mingullathandu, like not drinking and not being anti-social. They can then respect themselves more”.
I do not understand Mr Smith to claim to be a Ngarluma man, or a traditional owner. However it may well be that his views are shared by persons residing at the community area, including Ngarluma people.
The reference to “Mingullatharndu (5 Mile)” causes problems throughout the evidence. The maps show that the community area and Five Mile Well (5 Mile Law Grounds) are separate, but virtually adjacent areas. The site marked “Mingullatharndu” is the community area, Mr Smith’s reference, in para 2 of his affidavit, is probably to 5 Mile Law Grounds. The references in paras 3, 7 and 8 are probably to the community area.
Ms Allery Sandy is a Yindjibarndi woman. She moved out to the community area in 1993 because of overcrowding in Roebourne. She has lived there ever since. Ms Sandy has had a sister, a son, a daughter, grandchildren and other family living with her there. She raised these people.
Bruce Thomas is a brother to her in a “tribal way”. He previously lived at the community area. He was a friend of Don McLeod, the activist who led the station workers’ strike in 1946. Mr McLeod also lived “at 5 Mile” presumably the community area. Mr McLeod “showed people how to fight for their rights [to] equal treatment and was respected for this. The Station Workers’ strike was about getting better pay, not just rations”.
Concerning Kurrangar Talu, Ms Sandy was married to a Ngarluma man, Trevor Solomon. He always told her and their children about the important cultural and ceremonial places in the proposed tenement, including Kurrangar Talu. Going out to tribal meetings at Woodbrook every year, they would pass it. It is called Jarru Talu in Yindjibarndi language. It is important to Ms Sandy because her children need to know not to disturb the talu and create more march flies. It is important for, “kids who have both Ngarluma and Yindjibarndi connection through their skin group to know these places and stories, to share them with each other”. I understand the reference to “skin group” to be to the children’s shared Ngarluma and Yindjibarndi ancestry.
At para 5 of her affidavit, Ms Sandy says “[a]ny mining and exploration needs to stay away from these places that the elders have been protecting for years. We need to protect this place and the stories for future generations. [It is] important for our kids and grandkids to know so they can keep sharing this knowledge”.
Under the heading, “Community impact”, Ms Sandy says that the Harding River (Ngurin) is a place within the proposed tenement where they go camping with their children and grandchildren. They fish for milinga when there is water in the rivers. Her favourite fishing place is where the East Harding River runs through to the coast. The Mingullatharndu community needs water. This water comes from the water table under the proposed tenement. They, “don’t want our water to be taken away through mining”.
In conclusion, Ms Sandy says that the community area is a quiet and safe environment for herself and families who need to get away from the troubles in town. They have a lot of freedom, going out bush, camping and hunting in the area. If there is exploration and mining in the area, it could stop them from going to places in the area, including places which Ms Sandy “loves”.
There is no evidence concerning Ms Sandy’s standing as the wife of Mr Solomon, in connection with traditional ownership of Ngarluma land. However it is probable that she acquired some rights by virtue of her marriage, and that her children also acquired rights.
Keith Churnside is a Ngarluma man, aged 63 years. He remembers wandering around Mingullatharndu, during the mid-1960s, hunting and collecting food. As a child he grew up in the old reserve near Roebourne. From there he could walk to Mingullatharndu. An old man named Mindik was a worker there. Other people were Dooli Bin Bin and Nunga Nunga. They were “connected to the Ngarluma people” and top Law men. It is not clear whether the three named men were Ngarluma men or persons “connected” with them. Law was carried on at Mingullatharndu. Mr Churnside grew up with these Law people. He went camping with them throughout the proposed tenement. He spent his childhood along the Harding and East Harding Rivers, camping, swimming, and fishing. They would also visit water holes. However he is not sure of the names of those places.
Mr Churnside considers that flora, fauna and bush medicine in the area must be protected. He fears that it will all be lost if there are mining activities. He asserts that if there is to be mining, the community at Mingullatharndu should not be shifted. He states that the community belongs there.
It seems likely that Mr Churnside uses the term “Mingullatharndu” to describe a broader area than the community area which was effectively established in 1991. The reference to the Law being carried out at Mingullatharndu is probably to ceremonies at 5 Mile Law Grounds.
Mr David Walker is a Ngarluma man, aged 75 years. He remembers there being, “a lot of ceremonies at Mingullatharndu (5 Mile). Such ceremonies are still conducted there as the young generation of Ngarluma People “come through”. Bruce (Monadee) went through the Law there. Initiation ceremonies still take place at Mingullatharndu. In this way, the next generation of Ngarluma People carry the Law and traditions. Mr Walker has participated in ceremonial activities at Mingullatharndu. It is an important place for teaching about the culture. He has spent time at the Harding and East Harding Rivers for ceremony times and for hunting kangaroo and emu “at these places”. For reasons which appear below, in connection with Mr Douglas’s evidence, it is probable that Mr Walker’s reference to Mingullatharndu in para 2 of his affidavit relates to 5 Mile Law Grounds. The reference to Mingullatharndu in para 6 may relate to the community area, or a wider area.

Concerning the Kurrangar Talu, Mr Walker says that he visited that site when “we” were recording sites for the Western Australia Museum. Such talus can be “used” accidentally if people disturb the place, resulting in there being more march flies. The flies would bite and bother everyone. Talu sites are important because they are given by God to make sure that “we” have resources. They need to take care of talus. The flies are food for animals, which animals the Ngarluma People hunt.
Mr Walker is concerned about the impact of exploration and mining on the water at this place, and upon the flora and fauna. A lot of the waterways “change”, and waterholes are dry when previously, they had permanent water in them. Such change occurred during the “station days” with livestock activity. Stock walk in the water and disturb it. Mr Walker would prefer that mining, “stays right out of this area and Mingullatharndu”. Mr Walker states that there had been a law ground at Croyden, even before Croyden Station was established. However, “[w]hen they put the road in there they destroyed the law ground. This is really saddening for the old people because they were involved in that place. We don’t want that to happen at Mingullatharndu”.
Mr Walker says that ceremonial places are restricted to some people. In order to go to those places, they must have been through the Law. People may be hurt if they go to places where they are not supposed to go. These places are all “spiritual places”. He has seen the spirits. These spirits were “given to us” for healing powers. They can also destroy people. The old people were given the ability to control these spirits. Mr Walker concludes by saying that there, “needs to be restrictions on people being near our sites and spiritual places, to respect those sites”.
Michael Walker Senior is a Ngarluma and Kariyarra man. He is aged 69 years. His mother’s eldest sister was with the “Nomad Mob” at Mingullatharndu (5 Mile) with Don McLeod who set up the Law ground. These people started the Aboriginal station workers’ strike in the 1940s. He used to visit “Aunty Mum” every afternoon. Her name was Yabar. They would hunt birds and lizards. In 1963-1964, during the “station days”, he was at Mount Welcome and Cheritta Stations. He helped the Mount Welcome crew with mustering, including mustering sheep through the proposed tenement.
Mr Walker went through the law in Port Headland. He says that the Ngarluma People must have ceremonial places such as Mingullatharndu for their culture, for the young men coming behind so that they know them. His grandfather, Nigel Walker, and Johnny Walker were big Law men. They taught him about ceremony and culture. He fears that if there is mining in the area, there will be cultural loss. The reference to Mingullatharndu in paras 2 and 5 may well be to 5 Mile Law Grounds. However the reference in para 8 may be to either 5 Mile Law Grounds or the community area.
Concerning Kurrangar Talu, Mr Walker says that it is a sacred area and part of the Ngarluma heritage. They learned about such thing when they were growing up. He has been to that site. He says that talus can be stirred up by “going there” and calling a person’s name, in order to bother that person. One must know the song and how to activate and trigger the talu. One picks an enemy and gets the flies to bother that enemy. This magic can hurt people if it is performed for that reason. He says that, “when mines put bores down in water sources, it makes the water dry up”, and also stops water getting to other places on country. All the wells are now dry.
Mr Walker asserts that the Ngarluma community will be impacted (by mining) in that people from Roebourne hunt around Mingullatharndu. With mining, access will be blocked, so that “we” cannot hunt there. He says that “they” start blocking off access to important places. He asks about the consequences for the people at Mingullatharndu if a mine is established. He says that Cape Lambert is an example of where he and others camped every weekend. Now there is a fence there, preventing entry. There is no support for Aboriginal people. They are frustrated and have lost hope in negotiating, “because the land is taken anyway”. They have lost a few Ngarluma sites around Croyden station, and the “businesses don’t care”.
Sidney Walker is a Ngarluma Elder, aged 57 years. He grew up around Roebourne. His parents worked at Mount Welcome station. As part of this work they took him on the windmill runs throughout Mingullatharndu (5 Mile) and the surrounding area. He is connected to that area through family, by being at this place with his parents. On weekends he would spend the day there with family. He has a lot of memories of this place and does not want to see it impacted by mining activities. Mr Walker’s reference to Mingullatharndu appears in his description of activities in his youth, probably before the establishment of the community area in 1991. He makes no reference to 5 Mile Law Grounds. However the reference to Mingullatharndu may be to an area which includes 5 Mile Law Grounds, the community area and perhaps, other surrounding areas.
As to Kurrangar Talu, he says that if it is disturbed, there will be, “a lot of march flies around”. That is the consequence of disturbing the place, as it is a cultural place for Ngarluma People. If there are no more sites left, then they cannot talk about them and share them with younger generations. All “increase” sites have songs connected to them, “some during Law time”. It would impact upon the significance of the songs if these places were destroyed. His family told him about this place as they passed by it on the mill run. Only Ngarluma people can use this place for its functions.
Generally, losing much of this information is a big problem, as there is little chance to visit these places and share them with each other and the younger generations. Mr Walker says that “we need to know where these places are and what they are there for. Access to these places is very important and can be impacted by mining activities. This has importance for cultural and hunting activities”.
Timothy Douglas says that he is a Yindjibarndi man, aged 72 years. He says that at Mingullatharndu (5 Mile), Don McLeod looked after the strikers during the station workers’ strike in 1946. He took the strikers to a desert meeting in Punmu to plan the strike. He then brought them back to Mingullatharndu. Many people came back, including Njamal, Ngarluma and Yindjibarndi People. After the strike, and the obtaining of equal pay, they had to leave the stations where they had been working.
As to “ceremony places”, Mr Douglas says that he has, “done culture and ceremony here at 5 Mile” in the proposed tenement. His two elder brothers, William and Peter, were Law Men, carrying the law at 2 Mile, near the old reserve at Roebourne. He went through the Law at 2 Mile. He was the last Yindjibarndi man to be asked to go through the Law at 5 Mile Law Grounds because his grandmother, Rosie Clifton is Ngarluma and belongs to this country. Only Bruce Monadee and Lenny Albury (deceased) saw the Law ceremonies there. That Law ceremony is a special Law, not “done” at Woodbrook. This was the Law that Don McLeod carried. Mr Douglas asked that 5 Mile Law Grounds be closed down. The Law was too strong for the Yindjibarndi People. They have never seen that Law. Although 5 Mile Law Grounds has been closed down, knowing that ceremonies had been conducted there is important to “us”.
Mr Douglas says that the exploration and mining companies cannot go into the 5 Mile Law Grounds at all. He is concerned that, “ceremony and talu sites will be damaged”. He says that they cannot dig on the Law Grounds. They need to see him before they do anything there. He says that when in someone else’s country, one must ask the people who belong to the country before doing anything there.
Mr Douglas says that the 5 Mile Law Grounds were closed down by the Yindjibarndi. However Mr David Walker suggests that ceremonial activity continues there.
It is convenient, at this stage that I note the recurring uncertainty or inconsistency concerning references to the Mingullatharndu, the community area and 5 Mile Law Grounds. Apart from the references in Mr Olowoyo’s affidavit, the following references are relevant. In para 2 of Mr Smith’s affidavit the reference is probably to 5 Mile Law Grounds. However his references to Mingullatharndu in paras 3, 7 and 8 are probably to the community area. The references in Ms Sandy’s affidavit at paras 2, 3, 6 and 7 are probably also to the community area. Mr Churnside probably uses the word “Mingullatharndu” to describe a wider area which may include 5 Mile Law Grounds and the community area. In my view, Mr David Walker’s references, in para 2 of his affidavit, to initiations is to the 5 Mile Law Grounds. Mr Walker is now aged 75. He says that Bruce Monadee, “went through the Law there”. Mr Douglas says that Bruce Monadee saw the Law ceremonies there. Probably, both Mr Walker and Mr Douglas are referring to Bruce Monadee having been initiated at 5 Mile Law Grounds, and not to the community area. In paras 2 and 5 of his affidavit Mr Michael Walker Snr, may be referring to 5 Mile Law Grounds. In para 8, he is clearly referring to the community area. Mr Sidney Walker may well be referring to a wider area including both 5 Mile Law Grounds and the community area.
Having regard to these difficulties I asked that further submissions be made concerning Mr McLeod’s status and the confusing references to “5 Mile Law Grounds (5 Mile Well)” and “Mingullatharndu (5 Mile)”. Unfortunately, concerning Mr McLeod, I was referred to a number of secondary sources which may or may not have been reliable. In any event, the Native Title Party adequately clarified Mr McLeod’s position concerning Ngarluma Law, the matter of primary concern to me. The response concerning Mr McLeod finishes with the following paragraph:
“The status of Don McLeod and the historical context of Mingullatharndu community is relevant to this inquiry in considering the impact exploration is likely to have, not only (on) the sites of significance, but on the native title holders generally and the community preference to preserve and protect these areas from disturbance”.
The general assertions contained in this paragraph do not relate directly to the considerations prescribed by s 237(a) and s 237(b).
In the Native Title Party’s response concerning the references to 5 Mile Law Grounds and Mingullatharndu, it seems to accept that there are inconsistencies. However, having considered its response, I concluded that I should determine the appropriate meaning whenever each term is used, having regard to context and the evidence as a whole.
Another matter has been clarified. It concerns Mr Douglas’ affiliation. He claimed only Yindjibarndi affiliation. However it seems that he has both Ngarluma and Yindjibarndi affiliation.
In response to my inquiries there was reference to the “Nomads group”. The term is apparently used to describe a part of “Don McLeod’s mob”. It seems that after the “strike group” broke up, the Nomads moved to Roebourne. I infer that the Nomad group is distinct from the group which settled at Mingullatharndu shortly after the strike. It is not clear that the Nomads have any particular relevance for present purposes.

OTHER EVIDENCE

The Proposed Grantee has attached a number of documents to its contentions. Some of those documents were prepared by, or on behalf of the Proposed Grantee in connection with its application for the proposed grant. Others appear to be documents prepared by the State. Given the nature of the documents and their content, I need only refer to those documents where necessary, in connection with the various parties’ contentions. Similar comments apply to other material provided by the State.

NATIVE TITLE PARTY’S CONTENTIONS

The Native Title Party asserts that the proposed grant is likely to interfere directly with the carrying on of the community or social activities of the native title holders. It also asserts that it is likely to interfere with sites of particular significance in accordance with the Native Title Party’s traditions, as the holders of native title. In other words, the Native Title Party relies upon ss 237(a) and (b) of the Native Title Act, but not s 237(c). I should add, at this stage, that many of the witnesses seem to speak of mining activities, without differentiating between such activities and exploration activities.
As to s 237(a), the Native Title Party focusses on the community area, situated in the north-western portion of the proposed tenement. Ngarluma and other Aboriginal people reside there. Of course the various groups may have shared community and social activities. However the community or social activities, for the purposes of s 237(a), must be those of the native title holders, the Ngarluma People.
It seems that the community area was first occupied, perhaps in 1946, by striking Aboriginal station workers associated with Don McLeod, to whom I have previously referred. The evidence indicates that the workers in question were not all Ngarluma people. There is no evidence which suggests that prior to the strike, Ngarluma People or other Aboriginal people inhabited the area. Nor is it clear that the adjoining 5 Mile Law Grounds were established prior to the commencement of such habitation, although it is said that Don McLeod established those Grounds. Mr Olowoyo understands that current residence at the community area commenced in 1991.
Mr Marshall Smith, a Banjima man, says that he took up a lease at Mingullatharndu (5 Mile) in or about 1991. In 1993, Ms Allery Sandy, a Yindjibarndi woman who married a Ngarluma man, moved to Mingullatharndu. Other family members have also lived there. There is no evidence as to the number of people now residing there, nor as to their respective affiliations. There is no evidence of existing facilities or improvements, although there is a photograph supplied by the Proposed Grantee.
Mr Olowoyo asserts that the Elders, “state the importance of being able to bring future generations [of] Ngarluma people to these places (Mingullatharndu) to acknowledge the challenges overcome and opportunities created by Ngarluma people during the strike”, although there is no direct evidence that this activity presently occurs.
At para 9 of its contentions, the Native Title Party submits that the Mingullatharndu community is an “active community” where Ngarluma People and Elders live. However it is clear that other Aboriginal people also live there. It is asserted that Ngarluma people undertake community and social activities, “on the community grounds and its surrounds such as hunting, fishing and conducting ceremony”. However little detail is provided concerning frequency, particular areas used or the number of Ngarluma People involved. It is said to be an important place at which the Ngarluma People teach the next generation about culture, language, ceremony and significant sites. Again, there is little detail. The references to the evidence contained in para 9 of the contentions seem to suggest that choosing to live at Mingullatharndu, involves, to some extent, a choice of lifestyle, although there is said to be a significant “historical” connection to Don McLeod. I do not use the term “lifestyle” in any derogatory way.
At para 10 of its contentions the Native Title Party submits with regard to s 237(a), that the proposed exploration, and any subsequent ground-disturbing activity or mining are likely to:
·interfere directly with the Ngarluma people’s quiet enjoyment and access to the community and its surrounds in exercising their native title rights and interests; and
·directly impact on the social, spiritual and emotional wellbeing of the community and Ngarluma people.
The Native Title Party must identify the relevant community or social activities with which there may be interference, and explain why it fears such interference. There is no evidence as to the size of the Ngarluma population at Mingullatharndu, or the proportion of the Ngarluma People which lives there. Such information would be highly relevant to an assessment of the risk of interference.
It is difficult to understand how quiet enjoyment of, and access to, the community area may be adversely affected by actions pursuant to the proposed grant, given that the area is private property, down to 30m below the surface. The State asserts that such private property will not be included in the proposed grant.
As to hunting, fishing, camping, teaching younger generations and other, unspecified cultural activities, there is no basis in the evidence for the assertion that the proposed exploration activities will interfere with such activities within the community area or, to any significant extent, outside of that area. The evidence indicates that the exploration will be largely carried out by Mr Brammall and will not be particularly intrusive.
As to social, spiritual and emotional wellbeing of the community, these considerations are not directly relevant to the application of s 237(a). It is the interference which may cause such consequences which is relevant for present purposes.
Concerning s 237(b), the Native Title Party identifies the following propositions:
·an area or site of “particular significance” is one of special, or more than ordinary significance to the native title holders in accordance with their traditions;
·if an area or site is one of “particular significance”, it must be known and able to be located, and the nature of its significance explained; and
·explaining its significance includes distinguishing it from other areas within the proposed tenement.
The Native Title Party then submits that the issue which the Tribunal is presently required to determine is whether there is likely to be a real risk of interference with sites of particular (that is more than ordinary) significance to the Native Title Party in accordance with traditions of the native title holders.
In its contentions, the Native Title Party identifies two sites of more than ordinary significance for the Ngarluma People, namely 5 Mile Law Grounds and Kurrangar Talu. The Native Title Party contends that knowledge of the 5 Mile Law Grounds and Kurrangar Talu is “special” to the Ngarluma People and other Aboriginal people who reside at Mingullatharndu. Both of the s 237(b) sites are registered sites under the AH Act. Both sites are either near, or in permanent water sources (“yintha”) on the Harding River.
The Native Title Party contends that the significance of the sites is demonstrated by the fact that people other than the Ngarluma People are aware of their existence, referring to other Aboriginal people living at the community area. I put little weight on this contention. It would be surprising if other Aboriginal people, living in the area, were not aware of such sites.
The site of the Five Mile Law Grounds is said to be significant for the Ngarluma People, and Aboriginal people from neighbouring groups. It is a mythological and ceremonial site for the Ngarluma People and is highly restricted, being for men’s initiation ceremonies. Mr David Walker suggests continuing initiation ceremonies at that location. This proposition seems to be inconsistent with Mr Olowoyo’s assertion, and that of Mr Douglas, that the 5 Mile Law Grounds have been closed.
Kurrangar Talu is said to be a mythological and ceremonial site for the Ngarluma People, central to their, and their country’s culture, health and wellbeing. In the determination proceedings, it was said that talus are still important to the Ngarluma People, providing things in the land especially for them, so creating an association with the land, and a need to go back to it in order to listen to its spirit. See Daniel v State of Western Australia (2003) FCA 666 at [1336].

Kurrangar Talu is located in the far south-west of the proposed tenement. Mr Olowoyo says that it is an “increase site”, used to call the march fly for use against enemies. As I have said, in 1990, the “old people” were unsure as to its prior use.
At paras 23-31 of its contentions, the Native Title Party advances its case concerning interference. It submits that the proposed tenement overlaps many registered Aboriginal sites including two sites of particular significance, presumably the 5 Mile Law Grounds and the Kurrangar Talu. The relevant concerns are about the possibility of damage to the sites, and the risk of harm to “unlawful visitors”, meaning unauthorized persons, not accompanied by appropriate Ngarluma People. The assertions are very general and are largely unexplained.
At para 24 of its contentions, the Native Title Party refers to the effects of pastoral activities and mining on “these sites”, (presumably the two identified sites), waterholes and water courses. Mr Michael Walker Snr asserts that when miners put down bores, the water dries up. Ms Sandy, at para 6 of her affidavit, suggests that the Mingullatharndu community needs water, coming from the water table under the proposed tenement. It may well be that water is derived from that source. However it does not follow that exploration on the surface will cause interference with the water table, although interference may be a possibility.
At para 25 of the contentions, it is contended that talus play a “central role” in the cultural and ceremonial life of the Ngarluma People. Hence the health and wellbeing of the talus are important to them.
The Native Title Party contends that any public access, including any low impact exploration in or around the area of the two sites, will have a detrimental effect on them, and on the Ngarluma People’s spiritual wellbeing. It asserts that even low impact exploration activity would cause distress to the community, or result in a breach of cultural protocol, such matters being highly relevant to the issue of whether that activity is likely to interfere with an area of particular significance. It is also said that interference, which seems insubstantial to some, may be substantial, having regard to the Native Title Party’s traditions. These propositions seem to mean that significant distress concerning a proposed activity may be evidence that such activity will constitute interference with the particular significance of the area or site in question. Broadly speaking, I accept that proposition. However there is no evidence of actual present distress concerning the proposed grant, as opposed to expressions of concern.
The Native Title Party then summarizes its understanding of the activities to be undertaken by the Proposed Grantee, including, “collection and compilation of past exploration data, Aboriginal heritage survey of proposed ground-disturbing activity, trap sampling in gullies and metal detecting, geographical mapping, soil and rock chip sampling, collection of geophysical data and assaying of soil and rock chips”. It points out that the Proposed Grantee states that, “further ground-disturbing exploration is dependent on the completion of an Aboriginal Heritage Survey and the presence of no Aboriginal Heritage Sites all of which has the potential to impede the proposed exploration”.
At para 29 the Native Title Party submits that, “the Grantee Party’s proposed works on the tenement area are of such a nature that there is a real risk of interference with the 5 Mile Law Grounds, Kurrangar Talu and associated water sources surrounding the Harding River … even with the protections afforded by the regulatory system …”. The Native Title Party then notes that the Grantee Party has not responded to a proposal that the Ngarluma Standard Heritage Agreement be entered into between the parties. I should point out that the Proposed Grantee asserts that it submitted a Regional Standard Heritage Agreement (“RSHA”) to the Native Title Party but has received no response.
The Native Title Party also contends that reliance on the AH Act and any RSHA will not be sufficient to protect the 5 Mile Law Grounds and Kurrangar Talu and surrounds. It contends that there is a real risk of interference in the course of on-ground reconnaissance by the Grantee Party, if it has no specific knowledge as to where it can and cannot go. This is said to be particularly important in relation to the 5 Mile Law Grounds. The two areas are particularly dangerous and should only be approached when accompanied by senior Ngarluma Lawmen. It is also submitted that neither the AH Act nor any RSHA will provide for exclusion zones. Nor will they require the Grantee Party to engage in heritage surveys, if it is conducting only low impact exploration. These propositions do not directly address the concerns to be addressed pursuant to s 237(b). They rather reflect matters which the Native Title Party would seek to negotiate, should I hold that the expedited procedure does not presently apply.
The Native Title Party submits that rock chip sampling and soil sampling are likely to cause damage to the two areas and their surrounds because of their significance as mythological and ceremonial sites. It seems to be suggested that the taking of materials from the ground will damage the spiritual wellbeing of Ngarluma People. Such actions are of particular concern to them because of the frail nature of these sites due to the earlier impact of pastoral leases upon them. There are no details of such frailty, other than the assertions concerning interference with water sources. The Native Title Party contends that although Ngarluma Elders have expressed their preference for not having exploration and mining work undertaken at all in relation to the proposed tenement, as a minimum they would require a survey for all work types to identify exclusion zones, in the event that the proposed grant is made.
At para 31 of the Native Title Party’s contentions, it submits that its concerns are not only about the impact of ground-disturbing work, but also about unauthorized access, particularly to the 5 Mile Law Grounds, in the absence of a heritage survey or communication with the Ngarluma People.

PROPOSED GRANTEE’S CONTENTIONS

The primary thrust of the Proposed Grantee’s contentions is that most of the proposed exploration in the first year of the proposed grant will be “low impact”, and that subsequent exploration will be similar in nature. The work will be conducted by a director of the Proposed Grantee, Mr Brammall. He is experienced in exploration. The proposed activities appear in more detail in the s 58 statement referred to as “attachment 2”. Heritage surveys are planned and included in the budget. The Proposed Grantee asserts that the exploration programme will focus on the collection and re-interpretation of existing data. Field exploration will involve collecting 5kg samples from heavy metal traps in gullies, and hand-panning for gold and other heavy metals. There will also be metal detecting activities on the bottoms and sides of gullies. If there is any indication of gold, 5kg soil samples will be treated further to define “the gold anomaly”. There may also be further metal detecting activities, with geological mapping of significant outcropping in order further to define prospective rock hosts. Part of the proposed tenement is covered by fluvial soils. If there is a lack of published digital magnetic data concerning that area, magnetic surveys and interpretation will be conducted. Further ground-disturbing activity will be dependent upon completion of an Aboriginal Heritage Survey, the absence of any heritage sites and departmental approval. Additional details of the proposed programme appear at para 5 of the Proposed Grantee’s contentions.
The Proposed Grantee asserts that when the State and native title parties negotiated the standard form of the relevant RSHA, it was agreed that low impact exploration could be conducted, subject to the relevant native title party receiving regular reports, at least annually. The relevant RSHA would require that if any ground-disturbing activity is to occur, the Proposed Grantee consult with the Native Title Party and undertake an Aboriginal Heritage Survey.
It seems that there have been five recent heritage surveys in the wider area around the proposed tenement, each of which slightly impinged upon it. The Proposed Grantee accepts that heritage disturbance can be avoided by consultation with the Native Title Party. It accepts that there are six heritage sites within the proposed tenement, including “Five Mile Well” (5 Mile Law Grounds) and Kurrangar Talu, both of which are identified as ceremonial sites.
There is an issue concerning “trap sampling” on the Harding River. The Proposed Grantee understands that the Native Title Party raises concerns about such activity. The Proposed Grantee asserts that the river is not suitable for trap sampling, and so there is no cause for concern. As to Kurrangar Talu, the Proposed Grantee says that it will not be approaching it as, “consultation with the Native Title Parties will inform [Mr Brammall] of its sensitivity and importance to the Native Title Party”.
At para 12 of its contentions, the Proposed Grantee takes issue with the suggestion that its activities may interfere with the community area. It submits that whether the land remains as leasehold or is converted to freehold, it will not be able to enter without the consent of any lessee or owner. As I have said, the State asserts that the community is located on “private land”, and that it will not be included in the proposed grant.
The Proposed Grantee asserts that the Native Title Party incorrectly asserts that it will conduct mining on the proposed tenement, pursuant to the proposed grant. The Proposed Grantee asserts that the purpose of an exploration licence is exploration, not mining, referring to s 66 of the Mining Act. However s 66(c) permits excavation or removal of a limited quantity of earth, soil, rock, stone, fluid or mineral-bearing substances, although the limit is in the discretion of the relevant minister. The Proposed Grantee has indicated that samples of soil or rock may be taken. Nonetheless the Proposed Grantee is correct in asserting that ongoing mining activity will not occur pursuant to the proposed grant.
Although the Proposed Grantee does not say so expressly, it seems to accept that the two sites are of particular significance according to the native title holders’ traditions. Its case is that interference is unlikely.

THE STATE’S CONTENTIONS

The State generally supports the Proposed Grantee’s submissions, contending that the Tribunal should conclude that the proposed grant is an act attracting the expedited procedure. It says that the community area is located on private land, covering 0.76% of the proposed tenement. The proposed tenement has previously been the subject of five exploration licences, three of which overlapped it by more than 30%. Six heritage sites lie within the proposed tenement and are registered under the AH Act. Two such sites are 5 Mile Law Grounds and Kurrangar Talu.
The proposed grant will be made conditional upon standard conditions contained in annexure 5 to the State’s contentions, including requirements for environmental approval before ground-disturbing activities are carried out, and environmental rehabilitation. Breach of a statutory condition, or condition imposed by the Minister will leave the licence liable to forfeiture. The State considers that any of the existing RSHAs would require the Grantee Party to notify, consult and, if necessary, carry out surveys with the Native Title Party. Further, it notes that the Proposed Grantee is aware of the statutory limits upon its exploration activities.
The State contends that the Tribunal should assume that the Proposed Grantee will not act in breach of relevant statute law, regulations or conditions. It supports this proposition by reference to the fact that in Ward v Western Australia (1996) 69 FCR 208, Carr J did not depart from earlier assertions by the Tribunal to that effect. However I note that at [229], his Honour referred to an “assessment” that the grantee parties would act lawfully, rather than an “assumption” that they would do so. I accept that the Native Title Party’s concerns do not, of themselves, provide a basis for inferring that the Proposed Grantee will fail to comply with relevant statutory and regulatory regimes. However I do not accept the State’s contention that I should proceed on the basis that the Proposed Grantee will comply with its legal obligations unless the evidence demonstrates that it will not do so. That proposition effectively suggests that the Native Title Party bears a burden of proof. However no party bears a burden of proof in these proceedings. The question for determination is that prescribed in s 237.
In relation to s 237(a), the State identifies the Native Title Party’s concerns relating to camping, hunting, fishing, conducting ceremonies and inter-generational teaching, being relevant community and social activities. Although it is not clear, it may be that residence on the community area is also relied upon as a community or social activity. The State contends that there is very little detail concerning camping, hunting and fishing, particularly as to frequency, the number of people involved and the relevant areas within the proposed tenement. Concerning ceremony and inter-generational teaching, the State again contends that the evidence is very general. It seems that such activities take place at the community area.
The State submits that the evidence is such that the Tribunal cannot properly assess the likelihood of any interference with the identified community or social activities. Alternatively, it submits that the evidence demonstrates that it is unlikely that there will be direct interference with such activities. The State identifies various reasons for that contention. First, it accepts that most of the proposed exploration activities will be “low-impact and non-intrusive”. It also accepts that the Proposed Grantee intends to conduct any ground-disturbing activities in ways which will not adversely impact upon heritage sites or Aboriginal cultural concerns. It contends that hunting and fishing are capable of co-existence with mineral exploration. I am inclined to the view that similar comments apply to all other identified community or social activities.
The State asserts that the rights to be conferred by the proposed grant will not enable the Proposed Grantee to prevent access to the proposed tenement in any substantial way. Hence there is little risk of interference with the Ngarluma People’s capacity to engage in any of the identified community or social activities within that tenement. Further, the State contends that the community area is “private land”, and so the area down to 30 metres below the surface will not be subject to the proposed grant, unless the owner/occupier consents. See the Mining Act at s 29. This matter is not in dispute. The Proposed Grantee has not indicated any interest in the area below 30 metres from the surface.
Concerning law ceremonies within, or outside of the Mingullatharndu community, the risk of conflict with exploration activities will arise only during the times when ceremonies are conducted. The risk that exploration might impinge upon such ceremonies is small.
Finally, the State contends that the Proposed Grantee intends to comply with its legal obligation and to accommodate cultural issues. The State invites me to infer that so long as the Proposed Grantee is made aware of the locations and times of such ceremonies, it is not likely to conduct its operations in a way which will interfere with the ceremonies or the privacy of the participants. This contention overlooks the fact that the obligation to negotiate depends upon the outcome of my consideration of s 237(a) and the evidence.
As to s 237(b), at para 40 of its submissions, the State asserts the following relevant “principles”:
40.In Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Anor, the Tribunal outlined the principles to be applied in considering this question:
40.1 The area or site must be of special or more than ordinary significance to the native title holders, in accordance with their traditions;
40.2 An area or site must be well known and able to be located, and the nature of its significance explained;
40.3 The interference may involve actual physical intervention, and even slight interference may be unacceptable in the context of s 237(b);
40.4 The area or site must generally be located within the proposed licence. An area or site outside the licence area may be taken into account if it can be shown that the relevant activities would directly and physically affect the area or site, and that activities off-site are an integral part of activities on-site; and
40.5 There must be a real chance or risk of interference with the area or site.
[citations omitted].
I treat those propositions as relevant considerations rather than as “principles”. The second consideration invites an inquiry as to the person or persons to whom the area or site must be “well known”. Experience suggests that in many cases, such knowledge will be held only by some traditional owners, and certainly not by non-owners. It is also possible that the Tribunal may be satisfied that a particular area or site is located within the proposed tenement, although there may be little or no evidence as to its precise location.
The State accepts that Five Mile Well (5 Mile Law Grounds) and Kurrangar Talu are sites of particular significance within the proposed tenement. It notes that some of the Native Title Party’s deponents seem to suggest that the community area is also an area or site of particular significance. However, in its contentions, the Native Title Party did not put its case in that way. See paras 9 and 13. In its contentions in reply, the Native Title Party seeks to extend its case so as to treat the community area as being of particular significance for the purposes of s 237(b). The State has proceeded on that basis, but the Proposed Grantee has not done so. In any event, the State does not accept that the Native Title Party has established that it is a site of particular significance in accordance with the traditions of the native title holders. Further, access to that site will be limited by the fact that it is located on private land, with the relevant limitations upon access pursuant to the proposed grant. In any event, I may have to consider whether the Native Title Party should be allowed to depart from its original contentions concerning s 237(b), which contentions did not identify Mingullatharndu as an area or site of particular significance.
As to the likelihood of interference with relevant areas or sites, the State relies on the Proposed Grantee’s intention that at least in the early stages, the exploration activity will be largely non-intrusive. It notes the Proposed Grantee’s willingness to co-operate with the Native Title Party. As I have said, such a submission distracts attention from the requirements of s 237. The State also notes the Proposed Grantee’s intention to avoid interference with heritage sites.
To the extent that the Native Title Party may be concerned about unauthorized entry to 5 Mile Law Grounds or Kurrangar Talu by the Proposed Grantee, the State submits that there is insufficient evidence to establish that unauthorized entry would amount to interference for the purposes of s 237(b). The State also contends that the prior history of mining and exploration in the area must be taken into account in assessing the likelihood of interference. There have been five prior exploration licences, three of them overlapping the proposed tenement to the extent of more than 30%. The submission seems to be that any likely damage has been done, and that the proposed grant is unlikely to cause further interference. In that form, I find the submission unpersuasive. There is always the possibility of further interference. However the Native Title Party does not assert that there have been any relevant consequences of prior exploration. Had there been any such consequences, one would reasonably expect that the Native Title Party would have referred to it, as it has done in connection with pastoral activities. Exploration activity is not necessarily, of itself, likely to constitute relevant interference. I shall discuss the nature of that concept at a later stage.

Finally, the State contends that the AH Act will offer protection to the two sites, they being Aboriginal sites as defined in s 5(a) and s 5(b) of that Act. I accept that the two sites fall within the definition. The relevant protection offered by the AH Act is identified in s 17 as follows:
A person who —
(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or
(b) in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site,
commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.
The State contends that any application for ministerial consent under s 18 would be directed to the Aboriginal Cultural Material Committee, constituted pursuant to s 28 of the AH Act. That committee would presumably consult with the relevant Aboriginal group or groups and make a recommendation to the relevant Minister concerning the application. However the ultimate decision-maker is the Minister, who must have regard to the “general interest of the community”, the community in question not being limited to the Aboriginal community, or any part thereof. The joint effect of ss 17 and 18 is that such a decision may involve damage to, or destruction of the relevant area or site.
I proceed upon the basis that the Minister would conscientiously perform his/her statutory duty, having regard to the “general interest of the community”. Nonetheless, whilst I take into account the potential protection offered by s 17, I must also take into account the fact that the proposed grant, if made, would create the possibility of a determination by the Minister, which determination might have adverse consequences for the Native Title Party.

NATIVE TITLE PARTY’S CONTENTIONS IN REPLY

The Native Title Party contends that the evidence does not establish that the Proposed Grantee sent an RSHA to the Native Title Party. It also asserts that prior to lodgement of the Proposed Grantee’s contentions on 23 August 2020, there had been no, “direct engagement between the Proposed Grantee and the Native Title Party. I note that the Native Title Party does not deny receipt of the RSHA, in one way or another. Nor does it assert that it was unaware that such a document had been sent. Mr Brammall asserts in a statutory declaration, that such a document (executed by the Proposed Grantee) was sent to Pilbara Native Title Service on 22 January 2020. That organization was shown in the State’s “Quick Appraisal” as a Native Title Representative Body. One might well infer that the State, at least, considered that it was representing the Native Title Party, and that the Proposed Grantee had a similar understanding. It seems, however, that the document was not forwarded by that organization to the Native Title Party. The matter is of little importance. I deal with it only to make it clear that the Proposed Grantee’s contentions are not misleading in this regard.
The Native Title Party points out that the Proposed Grantee and the State both recognize the need for consultation with the Native Title Party in order to prevent or limit any disturbance or interference. It submits that absent adoption of its own preferred heritage agreement, or the appropriate RSHA, there is, “limited avenue for direct and substantial engagement” by the Proposed Grantee with the Native Title Party. As a proposition of fact, that assertion is incorrect. There can be meaningful negotiation, wherever there is goodwill between the relevant parties. However, as I have previously observed, the questions for my consideration do not directly address the facilitation of negotiation between the parties. My focus is on the criteria addressed in ss 237(a) and 237(b).
In para 4 of the Native Title Party’s contentions in reply, it seeks to supplement its submission concerning the frequency with which traditional activities, such as hunting and fishing, are undertaken by Ngarluma People on the proposed tenement, “near to Mingullatharndu community,” referring to affidavits by Michael Walker, David Walker and Allery Sandy. However as previously observed, that evidence lacks particularity.
At para 5, the Native Title Party seeks to take advantage of the State’s perception that some of the deponents suggest that the community area is of particular significance for the purposes of s 237(b). As I have said, that case was not advanced by the Native Title Party in its original contentions which contentions, I infer, were prepared in accordance with appropriate instructions. In its original contentions the Native Title Party dealt with the community area only in connection with s 237(a). In its contentions in reply, in seeking to identify it as an area or site of particular significance, it refers to paras 9 and 10 of Mr Olowoyo’s affidavit, where he discusses its association with Don McLeod. It also refers to Mr David Walker’s assertion that ceremonies were, and are, carried on at Mingullatharndu (5 Mile). I have previously discussed these matters.
At para 6, the Native Title Party responds to the State’s contention concerning previous activities pursuant to earlier exploration licences. It points out that the earlier licences were granted prior to the Ngarluma People’s native title determinations, and before registration of the relevant application for a native title determination. Hence the Ngarluma People had little or no opportunity to oppose the grants of such licences. However that response is not relevant to the point being made by the State. The point is that there is no evidence that prior exploration caused damage to the area of the proposed tenement. The Native Title Party seems to argue that such exploration occurred in 1996 or earlier, and that the absence of any evidence of prior damage may be explained by the passage of time. Of course such an argument assumes that any damage caused by earlier exploration was of a transient nature.

INTERFERENCE

It is perhaps unfortunate that in s 237, Parliament used the phrasal verb “interfere with”. It is frequently used in a pejorative sense, or perhaps to imply a degree of blame for example the Oxford English Dictionary (online), the New Shorter Oxford Dictionary and the Macquarie Dictionary (online) all define the term “interfere with” as meaning “molest or assault sexually” or words to that effect. Of the word, “interfere”, the most relevant meaning, found in the Macquarie Dictionary is, “to come into opposition, as one thing with another, especially with the effect of hampering action or procedure”. A second definition is, “[of things] to strike against each other, or one against the other, so as to hamper or hinder action, come into physical collision”. These definitions indicate that interference does not necessarily involve any element of blameworthiness. In s 237, the contemplated action pursuant to the proposed grant will generally not involve blame, it being action to be carried out pursuant to the law of Western Australia. Section 237 addresses the likely effect of such lawful action upon community or social activities of the native title holders, or areas or sites of particular significance in accordance with their traditions. In other words, s 237 deals with the potential collision of competing lawful interests.
This is the point made by Nicholson J in Little v Western Australia [2001] FCA 706 at [79]. His Honour identified the link between interference and particular significance (in that case, sacredness), observing that it is not sufficient that a native title party merely asserts particular significance. The nature of such significance must be explained so that the question of interference can be addressed. An action may affect an area or site without necessarily interfering with its particular significance.
Similarly, for the purposes of s 237(a), a mere assertion of occasional “collision” of interests may not amount to “interference”. Such interference must be with the “carrying on” of community or social activities. The phrasal verb “carry on” is relevantly defined in the Macquarie Dictionary (online) as, “to manage, conduct … to continue; keep up without stopping”. The New Shorter Oxford English Dictionary defines it as to “continue, keep up, conduct”. There is a clear element of continuity in “carrying on” an activity. Section 237(a) should not be understood as dealing with an occasional conflict between an exploration activity and an incident of community or social activity. It is concerned with interference with the continuing conduct of such activity.
Once it is accepted that the concept of interference involves conflict between relevant exploration activity and relevant community or social activities or areas or sites of particular significance, it follows that the relevant conduct and the anticipated interference must be clearly identified. Assuming that the proposed exploration activity has been clearly identified, the Native Title Party should be able to identify relevant community or social activities of the native title holders and explain how interference will occur. Similarly, where an area or site is said to be of particular significance, one might reasonably expect that at least some of the native title holders would be capable of identifying both location and particular significance, with some degree of certainty. A mere assertion that there is such an area or site within a proposed tenement, may well be insufficient to justify an inference that the whole of it is of particular significance. Similarly, the apprehended interference with such particular significance must be sufficiently defined.

LIKELY DIRECT INTERFERENCE WITH COMMUNITY OR SOCIAL ACTIVITIES OF THE NATIVE TITLE HOLDERS

With respect to s 237(a), the Native Title Party focusses upon the community area and the community and social activities associated with it. As I have observed, the area is private land to a depth of 30 metres. The Native Title Party also identifies community and social activities occurring outside of that area, but within the proposed tenement. The relevant community and social activities are camping, hunting, fishing, conducting ceremony and teaching the next generation about culture, language, ceremony and significant sites. For present purposes, I accept that notwithstanding the inclusion, within the Mingullatharndu community, of Aboriginal people other than Ngarluma people, the community may be taken to be the native title holders’ community for the purposes of s 237(a).
The other parties have not challenged the State’s contention that the community area is “private land”, and that it will not be included in the proposed grant, at least to the depth of 30 metres from the surface. In those circumstances, it seems unlikely that engagement in the identified community or social activities within the community area, will be interfered with by any activities pursuant to the proposed grant. It has not been suggested that the Proposed Grantee has any intention of seeking to explore in an area at such depth, and without direct surface access.
To the extent that such activities may be conducted outside of the community area, I have previously observed that there is little or no evidence as to the extent and frequency of those activities, or as to the numbers of persons involved. Further, there is no sound basis for inferring that the proposed mining exploration activities will interfere with the conduct of such activities. There may be occasional conflict but, as I have demonstrated, occasional conflict generally will not amount to direct interference with the carrying on of such activities.
I conclude that activities pursuant to the proposed grant are unlikely to interfere directly with community or social activities of the native title holders.

LIKELY INTERFERENCE WITH AREAS OR SITES OF PARTICULAR SIGNIFICANCE ACCORDING TO THE NATIVE TITLE HOLDERS’ TRADITIONS

As I have said, in the course of its contentions in reply, the Native Title Party asserted that the community area is an area or site of particular significance according to the traditions of the native title holders, namely the Ngarluma People. Concerning the community area, the Elders told Mr Olowoyo that the Pilbara strike was a monumental moment in Aboriginal history, and that the community area holds a significant historical connection for the Ngarluma People. They said that it is important that they be able to bring future generations to the area to acknowledge the challenges overcome, and opportunities created by the Ngarluma People during the strike. The relevant paragraph in Mr Olowoyo’s affidavit is para 10. I understand this paragraph to relate to the community area rather than to the 5 Mile Law Grounds, the latter site being mentioned in the following paragraph.
The requirement in s 237(b), that an area or site be of “particular significance” assumes that areas or sites may, according to the traditions of the native title holders, be of varying significance, so that not all such areas or sites will be protected by that provision. No doubt traditions vary over time, some emerging, some disappearing and some evolving. A tradition is a statement, belief or custom, handed down by unwritten, usually oral means, from generation to generation. See the New Shorter Oxford Dictionary. In Yorta Yorta v Victoria (2002) 214 CLR 422 at [46], Gleeson CJ, Gummow and Hayne JJ considered the meaning of the word “traditional” in connection with the words, “laws and customs” in the Native Title Act. Their Honours considered that a traditional law or custom is that of a society, passed down by generation to generation, usually by word of mouth and common practice. It may be accepted that traditions, other than traditional laws and customs, are transmitted in the same way. For the purposes of the Native Title Act, traditional laws and customs must be part of a normative system under which rights and interests are possessed. For the purposes of s 237(b) a tradition need not be normative in nature.
History and tradition are not the same things. The distinction may be of some importance. I have previously referred to the decision in Little where Nicholson J considered a case in which it was asserted that a lake was of particular significance for the purposes of s 237(b), because it was “sacred”. His Honour considered that the nature of such sacred quality had not been identified and that, in the absence of such evidence, the Tribunal could not reach a conclusion as to the “likelihood of a real chance or risk of interference”. The distinction between history and tradition may not be easily described. However, for present purposes, a tradition must be susceptible of interference. In Little, the alleged interference was with a sacred quality. I am unable to identify a tradition concerning the community area which is so susceptible. The history of the area or site cannot be interfered with by any action pursuant to the proposed grant. Even if knowledge of the Pilbara strike and Mr McLeod’s role in it are matters of tradition. I am unable to identify any particular significance or any relevant interference.
A further difficulty inherent in treating the community area as an area or site of particular significance according to tradition, is that it appears primarily to be a place of residence for people seeking a non-urban lifestyle, including non-Ngarluma People. Mr Smith told Mr Olowoyo that the community was established in 1991, “as a safe haven for Ngarluma People and the broader Aboriginal community to experience a community of peace away from surrounding towns and associated anti-social activities”. There is no suggestion that the choice of location reflected any particular significance associated with the Pilbara strike or Don McLeod.
That fact does not exclude the possibility that the area is of particular significance because of any such association, but it confuses the matter. One would not generally expect that an area where many people, including non-traditional owners, choose to live, would be described as being of particular significance according to the native title holders’ traditions. This is particularly so, given that such choice seems likely to be based on “lifestyle” considerations. Again, I say that I do not us that expression with any derogatory intention. The only evidence as to particular significance seems to be that Elders teach younger generations in that area, and that the community area is of historical importance because of its association with the Pilbara strike and Don McLeod. That association is shared with other Pilbara groups. To the extent that the Native Title Party asserts that initiation ceremonies are conducted in the community area, I have demonstrated that there is no clear evidence to that effect. The reference in para 2 of Mr David Walker’s affidavit should be understood as being a reference to 5 Mile Law Grounds, despite the fact that it has been closed.
As to the historical significance of the community area, there is no cogent evidence of conduct acknowledging its status, save that it is used for residential purposes and for teaching, neither of which activities will be interfered with by conduct pursuant to the proposed grant. Further, I note inconsistency between Mr Olowoyo’s assertion that he was told that the strike was planned at Mingullatharndu, and Mr Douglas’s assertion that it was planned at Punmu, and that the strikers then returned to Mingullatharndu. If the historical significance of the area had conferred particular significance upon it, one would not expect such inconsistency.
In any event, the State asserts (without contradiction) that the Mingullatharndu community area is located on private land, which land will not be included in the proposed grant, at least in the absence of the owner’s consent. In those circumstances, no conduct pursuant to the proposed grant will interfere with the community area or any associated particular significance. The Native Title Party, in its general contentions, treat the community area as relevant only to its case pursuant to s 237(a). It was correct in so doing.
It is conceded that both 5 Mile Law Grounds and Kurrangar Talu are places or sites of particular significance in accordance with the native title holders’ traditions. However, as I have explained, consideration of interference necessarily involves consideration of the basis of such particular significance. Hence I shall say a little more about the allegedly possible interference and the particular significance of each area. For the purposes of s 237(b), the Native Title Party identifies the following possible forms of “interference”, intentional or unintentional, with the two areas or sites:
·damage to rocks or soil in the course of exploration activities, or as the result of unauthorized access;
·damage to water tables or watercourses;
·unauthorized entry to areas or sites of particular significance with the possibility of punishment for such access; and
·unspecified damage to flora and fauna.
The Native Title Party contends that matters concerning water, should be considered in the context of damage already done by pastoralists and miners. Although there are assertions as to such damage by pastoralists, there is no clear identification of prior damage by miners. The only specific assertion is at para 7 of the affidavit by Mr Michael Walker Snr. He asserts that when miners put down bores, the water dries up. It is not clear whether such assertion is based on experience, or is simply an opinion. In the absence of specific examples, the assertion is more likely to be an opinion, for which no basis is presented. There is no suggestion that in its exploration activities, the Proposed Grantee will sink bores, or otherwise disrupt water courses or water tables, particularly given the limited nature of the Proposed Grantee’s intended exploration activities. However s 66 of the Mining Act would authorize such action, subject to the requirements contained in the proposed endorsements and conditions. See endorsement 6.

It is curious that the Ngarluma witnesses do not say more about the status of 5 Mile Law Grounds. Nevertheless I proceed on the basis that the Native Title Party, on behalf of the Ngarluma People, has adopted the contents of the affidavits filed in support of the objection. Of some importance is the evidence from Mr Olowoyo, Mr David Walker and possibly Mr Douglas, identifying adverse consequences for unauthorized entry to the 5 Mile Law Grounds. I shall return to that matter.
Mr Olowoyo discusses Kurrangar Talu at paras 14 and 17 of his affidavit. Much of para 15 seems to be based upon knowledge and views concerning other, perhaps similar talus. I proceed on the basis that an increase site is a breeding site. I accept that march flies were traditionally used by the Ngarluma People against their enemies. The march flies may also cause annoyance to the Ngarluma People, should there be too many of them at any particular time. Hence the Ngarluma People may well seek to maintain conditions in Kurrangar Talu in order to control the march fly population. Finally, certain of the animals hunted by the Ngarluma feed on the march flies. Hence the site has practical value. In addition, the dome-topped granite rock, referred to by Mr Olowoyo, appears to have symbolic significance. It is not clear whether the three white lines on the dome are natural features, or were placed there by the Ngarluma, or their predecessors.
Mr Smith speaks of Kurranga Talu as a place where the march fly “season” is created by dancing and song, by way of thanksgiving for resources. Ms Sandy knows Kurrangar Talu as an important cultural and/or ceremonial place, based upon information provided by her husband. She considers it to be important as a reminder to her children that they should not disturb it, and so create more march flies.
Mr Sidney Walker says that if the Kurrangar Talu is disturbed, there will be, “a lot of march flies around”. It is a cultural place for Ngarluma people. If there are no sites left, they will not be able to talk about them and share them with younger generations. All increase sites have associated songs. Neither Mr Churnside nor Mr Douglas says anything about Kurrangar Talu. Mr Olowoyo and Mr David Walker speak of dangers associated with unauthorized entry to Kurrangar Talu. Others speak of disturbing the march flies. Mr Michael Walker Snr speaks of the sacredness of that site.
Of the four categories of disturbance identified above, I am not satisfied that damage to rock and soil, to watercourses or water tables, or to flora and fauna will amount to interference with the particular significance of either site, whether the disturbance be caused by exploration pursuant to the proposed grant, or by some other cause. No attempt has been made to demonstrate the possibility of a collision between the proposed exploration activity and the particular significance of either site, pursuant to the native title holders’ traditions. In other words, there is no demonstrated incompatibility between activities likely to be performed pursuant to the proposed grant and the particular significance of either site pursuant to the native title holders’ traditions.
Unauthorized entry is in a different category. Although the Native Title Party does not expressly identify any traditional prohibition upon unauthorized entry to either site, such prohibition is demonstrated by the evidence. Mr Olowoyo was not permitted to visit the 5 Mile Law Grounds, although knowledge concerning that area was obviously of great importance to the Native Title Party’s case. This constraint upon access is explained in some detail in paras 11-13 of his affidavit. He also associated such danger with Kurrangar Talu. Mr David Walker asserts that ceremonial places are, “restricted to some people”, and “[p]eople can be hurt if they go to those places that they are not supposed to be at”. However the “old people” could control the relevant spirits. He seems to treat both areas as being of ceremonial significance. Mr Douglas asserts that the Proposed Grantee would have to see him before doing anything in the 5 Mile Law Grounds. Mr Olowoyo and Mr Walker both identify the possible adverse consequences of unauthorized access to either area. That unauthorized access should be subject to such severe consequences suggests that access contrary to traditions is in marked conflict with such traditions. The gravity of the consequences seems to me to demonstrate particular significance. Alternatively, the constraint on access might be designed to protect the particular significance of a site. In either case, the Native Title Party’s concern is that access by the Proposed Grantee would be in conflict with the site’s particular significance and/or pose a threat to such significance.
As to the likelihood of unauthorized entry to the 5 Mile Law Grounds, whether intentional or unintentional, the area is, by no means remote. It adjoins the community area and is within 2kms of the North West Coastal Highway, the probable access route to the proposed tenement. It is about 5 kms from the coast and less than 10kms from the Roebourne township. It seems likely that in the course of its exploration programme, the Proposed Grantee would have at least some contact with the Mingullatharndu community. That possibility, added to proximity to the Highway, suggests that those involved in the exploration will, on occasions, be in the vicinity of 5 Mile Law Grounds. As it is a registered site, it may well be of interest to those who come to the area, including those who come in connection with mining. It is true that most of the exploration is presently to be done by Mr Brammall. He may well be relied upon to observe his undertakings. However, as I have said, circumstances may change. Others may become involved in the exploration programme. Indeed, the s 58 statement contemplates as much in that Mr G Kennedy and Dr T Kennedy are to assist Mr Brammall, although the nature of the assistance is unspecified. It is also quite likely that ongoing exploration will attract other people to the area, raising the possibility of unauthorized entry. I should make it clear that my concern is about unauthorized access as such, and the Ngarluma People’s concerns about the possible consequences of such unauthorized access.
In the circumstances I am unable to conclude that it is not likely that conduct pursuant to the proposed grant will interfere with the 5 Mile Law Grounds, having regard to that area’s particular significance, in accordance with the Ngarluma People’s traditions.
I have previously identified the three practical functions associated with the Kurrangar Talu. First, it provides a mechanism for impeding or punishing enemies, although one hopes, (and expects) that such conduct is not common today. Second, the Ngarluma People depend upon the ongoing stability of the environment to control the reproduction of the march flies, thus limiting inconvenience to themselves in their everyday lives. Third, the march flies are a source of food for animals which the Ngarluma People hunt. There are also suggestions that Kurrangar Talu has both ceremonial functions and sacred qualities. Mr Olowoyo speaks generally about the functions of talus. His evidence in this regard is not reflected in the evidence of other witnesses. However Kurrangar Talu’s ceremonial function is identified in general terms by Mr Smith, Mr David Walker and Mr Sidney Walker. Sacredness is suggested by the reference to thanksgiving in Mr Smith’s evidence and by Mr David Walker and Mr Michael Walker Snr. Although Mr Olowoyo discussed Kurranga Talu with the Elders, it is not clear that he visited the area. As I have previously observed, his comments seem to be largely based upon knowledge acquired concerning other talu sites.
I accept that changes in the natural environment, whether intentional or unintentional, may affect march fly numbers. It seems probable that currently, the risk is either that the proliferation of march flies will cause discomfort to traditional owners, or that a reduction in numbers may cause reduction in game available to hunters. Again, unauthorized entry is an issue, with the possibility of severe retribution. See Mr Olowoyo’s affidavit at paras 14-17, Mr David Walker’s affidavit at para 7 and Mr Douglas’s evidence at para 6. The fear of such retribution leads me to conclude that unauthorized access constitutes interference with the particular significance of the area.
Kurrangar Talu lies about 5 kms south-west of the Mingullatharndu community area, and about 3 kms east of a vehicular track, leading to Roebourne. Whilst Kurrangar Talu may be somewhat more remote than 5 Mile Law Grounds, it is still quite close to the coast, the township of Roebourne and the North West Coastal Highway. Again, it is quite possible that people other than Mr Brammall may become engaged in the exploration. They may not share his determination to avoid heritage areas. Further, exploration activity may attract others to the area.
I am unable to conclude that it is not likely that the proposed grant will interfere with Kurranga Talu, having regard to its particular significance in accordance with the Ngarluma People’s traditions.

CONCLUSION

I conclude that the expedited procedure does not apply to the proposed grant.

The Hon John Dowsett AM. QC
President
12 February 2021

SCHEDULE 1