Ngarrawanji Native Title Claimants and Koongie-Elvire Native Title Claimants v Sammy Resources Pty Ltd - [2015] NNTTA 2

NATIONAL NATIVE TITLE TRIBUNAL

Ngarrawanji Native Title Claimants and Koongie-Elvire Native Title Claimants v Sammy Resources Pty Ltd and Another [2015] NNTTA 2 (20 January 2015)

Application Nos: WO2013/1019, WO2013/1020

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Ngarrawanji Native Title Claimants (WC1996/075) (‘Ngarrawanji native title party’)

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Koongie-Elvire Native Title Claimants (WC1999/040) ('Koongie-Elvire native title party')

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The State of Western Australia (Government party)

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Sammy Resources Pty Ltd (grantee party)

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

Tribunal: Ms H Shurven, Member

Place: Perth
Date: 20 January 2015

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

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

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA)
Waterways Conservation Act 1976 (WA)
Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA)
Country Areas Water Supply Act 1947 (WA)
Water Agencies (Powers) Act 1984 (WA)
Water Resources Legislation Amendment Act 2007 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metal Ltd [2012] NNTTA 48 (‘Campbell v Murchison Metal Ltd’)
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustas Nominees Pty Ltd’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora v Heron Resources Ltd’)
Jango v Northern Territory of Australia [2006] FCA 318 (‘Jango v Northern Territory’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd, [2012] NNTTA 18 (‘Karajarri v ASJ Resources Pty Ltd’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin Pty Ltd’)
Little v Oriole Resources Pty Ltd [2005] FCA 506 (‘Little v Oriole Resources’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Neowarra v Western Australia [2003] FCA 1402 (‘Neowarra v Western Australia’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith v Western Australia’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Freddie v Asia Investment Corporation’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)

Representatives of the    Ms Barbra Friedewald, Kimberley Land Council
native title parties
Representatives of the    Ms Carol Walls, State Solicitor’s Office
Government party           Mr Matthew Smith, Department of Mines and Petroleum

Representative of the Ms Stephanie Lee, McMahon Mining Title Services
grantee party

REASONS FOR DETERMINATION

On 6 September 2013, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4776 (‘the proposed licence’) to Sammy Resources Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 266.56 square kilometres and its centre point is located approximately 25 kilometres westerly of Halls Creek.
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within four months of the ‘notification day’ (see s 32(3) of the Act), which in this matter was 11 September 2013. As explained by ss 32(3) and s 30(1)(a) and (b) of the Act, the objection may be made by:
(a)any registered native title body corporate (‘RNTBC’) in respect of the relevant land or waters who is either (i) registered as an RNTBC at three months after the notification day, or, (ii) if the RNTBC is registered after that three month period, the RNTBC has resulted from a claim that was registered before the end of three months from the notification day; or
(b)any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day provided the claim was filed before the end of three months from the notification day.
On 16 October 2013, two objection applications against the proposed licence were lodged with the Tribunal - one by Connie Jugarie and others on behalf of the Ngarrawanji Native Title Claimants (WC1996/075 – ‘the Ngarrawanji native title party’), and one by Scotty Birrell and others on behalf of the Koongie-Elvire Native Title Claimants (WC1999/040 – ‘the Koongie-Elvire native title party’). The claims overlap the proposed licence entirely (that is, 100 per cent) in the following proportions:

*Proposed licence*	*Overlap between proposed licence and Ngarrawanji native title party claim*	*Overlap between proposed licence and Koongie-Elvire native title party claim*	*Approximate size of proposed licence (km²)*
E80/4776	70.5 %	29.5%	266.56

I was appointed by the Tribunal President Raelene Webb QC, on 24 October 2013 as the Member for the purpose of conducting any inquiry into the matter.
At the preliminary conference on 28 January 2014, the grantee party representative advised that the grantee party would make a decision about the proposed licence in February 2014. The grantee party representative advised the Tribunal on separate occasions in May, June and July 2014 that they were awaiting a response from the grantee party in relation to the proposed licence. On 16 July 2014, the Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted.
The following information and evidence was provided in relation to the proposed licence in compliance with directions:
·Materials on behalf of the Government party from DMP on 6 August 2014, including: report and plans from the Department of Aboriginal Affairs (‘DAA’) Sites Register; copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; and a tengraph quick appraisal;
·contentions and evidence of the Ngarrawanji native title party and the Koongie-Elvire native title party (‘the native title parties’) dated 8 September 2014, including an affidavit of Ms Ronay, senior anthropologist employed by Kimberley Land Council affirmed on 4 September 2014 and an affidavit of Ms Friedewald, legal officer employed by Kimberley Land Council, affirmed on 5 September 2014;
·contentions of the grantee party on 22 September 2014, including maps; and
·contentions of the Government party dated 8 October 2014, including maps and annexures.
Although the native title parties objection applications addressed each of the criteria in s 237 of the Act, the native title parties state, in their contentions (at 4), that the objection is only pursued in relation to s 237(a) and s 237(b). See further comment on this at [80] of this decision.
Parties confirmed by correspondence with the Tribunal on 22 October 2014 that they had no objection to the matter proceeding to be determined on the papers.
A map was also generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 27 November 2014 for comment. No party objected to use of the map in these proceedings.

Legal principles

Section 237 of the Act provides:
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;
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In relation to the legal principles to be applied in this matter, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15]-[21]). These principles have recently been endorsed by the Federal Court in FMG Pilbara v Yindjibarndi Aboriginal Corporation.

Evidence in Relation to the Proposed Acts

Government Party

Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·Pastoral lease 3114/1101 (Moola Bulla) at 62.2 per cent
·Indigenous held pastoral lease 3114/923 (PLL473644) (Koongie Park) at 28.7 per cent
·Vacant Crown land at 8.3 per cent
·Crown reserve 1594 (Watering Place) at 0.7 per cent
·Road reserve 296 at less than 0.1 per cent
There are also three Department of Water areas (SWA/15 Fitzroy River and Tributaries; GWA 10 Canning–Kimberley; SWA 29 Ord River and Tributaries) overlapping at 100 per cent, 100 percent and 0.3 per cent respectively, and the Ord River (ID/1) overlapping at 26 per cent.
Government party documentation establishes, in relation to previously granted tenements: 16 exploration licences overlapping the proposed licence area by between less than 0.1 and 25.1 per cent from 1983 to 2013 and all now surrendered, forfeited or expired. There are also 48 mineral claims between 1971 and 1981 and all now surrendered or expired, overlapping at less than 0.5 per cent each; one prospecting area tenement overlapping at less than one per cent and surrendered in 1940; and five temporary reserves existing between 1963 and 1979 and overlapping at between 3.1 per cent and 100 per cent respectively, and now all cancelled. There appear to be no current live tenements overlapping the proposed licence.
The quick appraisal document shows services affected are: two undeveloped prospecting areas (Moola Bulla 2 and Billabong); eleven tracks; two fence lines; one windmill; three wells/bores with windmills; one perennial lake; 25 major water courses which are non-perennial (including Station Creek); 120 minor water courses which are non-perennial (including Laura River); and 46 spring/soak/rock holes. The extract from the Aboriginal Heritage Inquiry System, Aboriginal sites database maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows there is one DAA registered site within the proposed licence area called Lupurinywatngarriwanuma (site ID 12573), which is described as a mythological place. When looking at Tribunal mapping, the exclusion zone for this site encroaches across the north east corner of the proposed licence. There are also seven ‘other heritage places’ as follows:
·Palawah (Site ID 12554)
·Kiri – artefacts / scatter, quarry (Site ID 12561)
·Pulanyingayan / Brumby hole – mythological (Site ID 12564)
·Walungampirri (Site ID 12565)
·Karlnyarrinyanuwat (Site ID 12572)
·Tunguljuwany (Site ID 12575)
·Moola Bulla 2 – ceremonial (whose place location identification is restricted) – (Site ID 12597)
Tribunal mapping indicates that Pulanyingayan / Brumby hole (ID 12564), Walungampirri (ID 12565), Tunguljuwany (ID 12575), and Moola Bulla 2 (ID 12597) all overlap the exclusion zone of Lupurinywatngarriwanuma (ID 12573).
According to Tribunal mapping, both Kiri (ID 12561) and Karlnyarrinyanuwat (ID 12572) also have an exclusion zone which is to the west of Lupurinywatngarriwanuma, and also extends into the centre north of the proposed licence. Site Palawah (ID 12554) is in the centre of that exclusion zone.
The draft Tenement Endorsements and Conditions Extract provided by DMP indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Bushwin Pty Ltd at [11]), in addition to the following three conditions:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Watering Place Reserve 1594.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The licensee [sic] attention is drawn to the provisions of the:
· Waterways Conservation Act 1976
· Rights in Water and Irrigation Act 1914
·   Metropolitan Water Supply, Sewerage and Drainage Act 1909
· Country Areas Water Supply Act 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of the Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoW’s relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement deepening or altering or any artesian well is prohibited unless a current licence for these activities has been issues by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·   50 metres from the outer-most water dependant vegetation of any perennial waterway and
·   30 metres from the outer-most water dependant vegetation of any season waterway.
In respect of Proclaimed Surface Water Areas (Fitzroy River and Tributaries & Ord River and Tributaries) and Irrigation District (ID/1 Ord River) the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issues by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issues by the DoW.
11.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irritation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect of Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
12.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
Government party evidence relating to s 237(a) and (b) will be discussed under the consideration of evidence for each limb below (at [47]-[84]).

Grantee Party

The grantee party submits that compliance with the conditions and endorsements of the proposed licence is relevant to the question of whether the grant of the proposed licence is an act likely to interfere directly with the carrying on of the community or social activities of the native title parties. They also submit it is relevant to the question of whether the grant of the proposed licence is an act likely to interfere with areas or sites of particular significance. The grantee party states it is conscious of its obligations under the AHA, has never been prosecuted under or accused of breaching the AHA and is committed to complying with the AHA.
The grantee party state their proposed activities ‘are the usual activities associated with exploration licenses [sic] including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys’. They go on to say ‘the work that is ground disturbing will be broad based’ (at 40).

Section 237(a)

The grantee party acknowledges there may be social and community activities past or present in the vicinity of the proposed licence and within the proposed licence area. However, the grantee party contends the evidence does not support a finding that there are frequent and regular activities which are likely to be directly interfered with. The grantee party contends (at 29) there may be some intermittent interference with community and social activities, but it is not likely this impact will be substantial, and any restrictions on activities ‘would be of a practical nature for safety reasons, limited to the area where exploration is taking place’.
The grantee party also contends the relative size of the proposed licence in the context of the larger areas covered by each of the respective native title parties’ claims is a relevant consideration because ‘there will remain large tracts of land where community and social activities related to the Native Title rights and interest of each claim group may be carried out’ (at 44), and community and social activities ‘are likely to be able to be conducted in other areas of the Tenement or Claims were exploration activities to impact them at a specific area’ (at 45).

Further, the grantee party submits that it’s on-ground exploration activities on the proposed licence are unlikely to be frequent or cover large portions of the proposed licence so as to directly and physically interfere with the native title parties’ activities.
The grantee party makes reference to the past and present interests granted over the proposed licence, including the previously granted exploration licences, and submits that the rights and interests of the native title parties have been, and continue to be able to, co-exist with other rights granted including under the previous exploration licences and past and present pastoral activities.
The grantee party refers to the native title parties’ evidence that hunting, fishing, intergenerational teaching of culture, camping, collecting bush foods and collecting products used for ceremony are activities undertaken in the proposed licence area. In particular, the grantee party refers to the affidavit of Ms Ronay which draws upon the evidence of Mr Matt Dawson, Ms Ethel Walalgie and Ms Phyllis Wallaby and submits that:
·There is a lack of evidence about whether hunting, fishing, camping and collecting bush foods still occurs and if these activities do continue how often they occur in the proposed licence area and whether they occur seasonally or annually.
·There is a lack of evidence about how the activities of the grantee party are likely to cause significant interference with these activities where they continue.

Section 237(b)

The grantee party submits that it is not clear from the native title parties’ evidence the location of a number of sites of significance to the native title parties, and that a number of the sites may be outside the proposed licence area. For example, in relation to the spring named Guyangarru located in the Dowarra ‘taam’ (or estate) which is described in Ms Ronay’s affidavit as being inside the proposed licence area, the grantee party submits there are numerous springs and waterholes close to, but outside, the western border of the proposed licence. The grantee party makes a similar submission in relation to the gender restricted sites discussed in Ms Ronay’s affidavit. The grantee party states it is not clear from Ms Ronay’s affidavit if Ms Walalgie herself identified the sites as being in the proposed licence or if this is a conclusion reached by Ms Ronay, noting that the affidavit states (at paragraph 4) that it was Mr Dawson who was provided a copy of the map of the proposed licence area when giving evidence.
In relation to other sites such as the site from which Mowindil (or white paint for use in ceremonies) is collected at a place called Gadardi (also called Pick and Shovel) located within the proposed licence, the grantee party submits the native title parties have not provided sufficient evidence to show the grant of the proposed licence or particular acts of the grantee party are likely to cause significant direct interference with the sites.

Native Title Parties

The native title parties provided contentions, an affidavit of Ms Ronay who states she is a senior anthropologist employed by the Kimberley Land Council, and an affidavit of Ms Friedewald who states she is a legal officer employed by the Kimberley Land Council.
In her affidavit, Ms Ronay indicates she has been 'working with traditional owners in the Halls Creek, Moola Bulla and Margaret River area since 2013 on anthropological research for the native title claims in the area' (at 1). She also states (at 2) that she has 'worked closely with anthropologist Dr Tony Redmond' during that work. I note these areas include ground covered by the proposed licence and Ms Ronay specifically states 'during our research we recorded information and received evidence for the area covered by tenement E80/4776...which I now draw upon for this affidavit, in particular the evidence of Matt Dawson, Ethel Walalgie and Phyllis Wallaby' (at 3). While I accept that Ms Ronay has expertise as an anthropologist in this area, it would assist the Tribunal if such experts provided information about their qualifications and experience within their affidavit evidence. I note that Ms Walalgie is a claimant for the Ngarrawanji People and that Ms Ronay outlines that both the Ngarrawanji People and Koongie-Elvire People ‘work together...and speak for country and make decisions about country together’ (at 5).
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases, is of assistance in this matter. The Federal Court has found that expert anthropological evidence of traditional laws and customs, and connection to country based on field work is probative (see Neowarra v State of Western Australia (at [388])). And that this is particularly so when it accords with the native title party evidence. For example, in Jango v Northern Territory of Australia (at [291]-[292]), the Court outlined:
It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist’s evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people.
Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps.
Ms Ronay's affidavit states it includes information and evidence she has recorded and received by members of the native title party, namely Mr Matt Dawson, Ms Ethel Walalgie and Ms Phyllis Wallaby. Also, the affidavit refers to evidence received from Mr Dawson during an interview conducted by Ms Ronay of Mr Dawson, Mr Ernie Sarah, Ms Mable Juli and Ms Jennifer Tait on 22 August 2014. The affidavit states that Mr Dawson was provided with a copy of the map of the proposed licence area during that interview. Ms Friedewald deposes that she ‘provided Nadia Ronay a map of the tenement area E80/4776 on 22 August 2014 and observed her interviewing Mr Dawson, Mr Sarah, Ms Juli and Ms Tait after the provision of the map and in reference to the map’ (at 4).The manner of presenting the native title party members evidence within the affidavit of Ms Ronay has not been challenged. Neowarra v State of Western Australia (at [388]) outlines the importance of experts and that those who have done fieldwork should be given more weight than just making assumptions. Applying these principles, and those outlined at [32] of this decision, I accept the evidence does reflect what Ms Ronay has been told by members of the native title parties who can speak for the area of the proposed licence. It is always preferable to have evidence adduced from the witnesses themselves, however, I appreciate the difficulties this sometimes presents in native title matters.
Ms Friedewald deposes that the grantee party has not attempted to provide feedback to the native title parties on the Heritage Protection Agreement which was offered by the native title parties, and that the grantee party has not entered into dialogue with the native title parties about the establishment of a heritage protection regime. The native title parties submit in their contentions that the grantee party has not consulted with the native title parties nor provided any information at any time which might go to explain how it intends to consult with the native title parties should the grant be made. However, the application of the expedited procedure is not concerned with obtaining agreement of the native title party. Rather, as President Webb QC noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [70]-[72]), emphasis in original), 'the question is, should the right to negotiate apply because of the likely effect the exploration activities will have...'

Section 237(a)

The native title parties state their community or social activities are a manifestation of their claimed native title rights and interests, and may have a spiritual dimension when they are rooted in physical activity (Silver v Northern Territory). Ms Ronay’s affidavit deposes that the native title parties’ community and social activities which take place on the proposed licence area are:
·Hunting (at 26)
·Fishing (at 26)
·Conducting intergenerational teaching (at 26)
·Camping (at 26)
·Collecting bush foods (at 42 and 43)
·Collecting products for use during ceremony (at 19, 20 and 42)

Section 237(b)

The native title parties’ contentions state (at 19-23) that what constitutes interference with sites of particular significance may be different for different native title holders, and may be assessed by reference to the laws and customs of the particular native title holders. In the native title parties’ submission, the protections afforded by s 17 of the AHA cover only sites and objects as defined in accordance with the terms of the AHA and do not equate to any consultation with the native title parties. Therefore, they argue that the AHA cannot be relied upon to protect areas or sites of significance. The native title parties (at 24-30) refer to Parker v Ammon (at [35]) where the Tribunal found that each case must be considered individually, as the heritage protective regime operating in Western Australia cannot be said to be adequate at all times to make the s 237(b) interference unlikely.
In particular, the native title parties contend that the Western Australia Auditor General’s 2011 Report entitled Ensuring Compliance with Conditions on Mining casts doubt on the effectiveness of the AHA protective regime. They state adjustments to the regime’s operations since the time of the report have not gone far to remedy the risk to the native title parties’ significant places if they were to seek to rely on the AHA for protection of their sites and areas (at 31-34).
The native title parties’ evidence regarding significant sites within the proposed licence area can be summarised as follows:
·There are Ngarranggarni ‘dreaming ancestors’ who exist in the proposed licence area (see Ms Ronay’s affidavit at (60) and (42)).
·The native title parties have dreaming stories associated with significant sites in the proposed licence area namely:
o Willy Wagtail Dreaming Jimbilyi (see Ms Ronay’s affidavit at (12)-(18))
o Sugar Bag Dreaming (see Ms Ronay’s affidavit at (9) and (21))
·There are consequences for the native title parties if the Ngarranggarni or Dreaming story sites are interfered with (see Ms Ronay’s affidavit at (9)).
·There are proper cultural traditions for the native title parties to execute to care for significant sites which include welcome to country mechanisms (see Ms Ronay’s affidavit at (7), (8) and (43)).
·There are significant sites in the proposed licence area (‘increase sites’) which enable the native title parties to control the produce of the area (see Ms Ronay’s affidavit at (9)).
·Significant cultural sites within the proposed licence area are related to wider areas of significance outside of the proposed licence area (see Ms Ronay’s affidavit at (14), (17), (22) and (39)-(41)).
·There is a significant women’s site in the proposed licence area with restricted access (see Ms Ronay’s affidavit at (27) and (42)).
·There is a significant men’s site in the proposed licence area with restricted access (see Ms Ronay’s affidavit at (28) and (42)).
·There is a spiritual being called Yungu who traverses a part of the proposed licence area from Mount Barrett which is just outside of the proposed licence area (see Ms Ronay’s affidavit at (30)-(31)). I note that while Mount Barrett is just outside the proposed licence, it is adjacent to the mythological site of Lupurinywatngarriwanuma and the ‘other heritage places’ Pulanyingayan / Brumby hole (ID 12564), Walungampirri (ID 12565), Tunguljuwany (ID 12575), and Moola Bulla 2 (ID 12597), all sites of which exclusion zones extend into the proposed licence.
·There is a significant burial place in the area (see Ms Ronay’s affidavit at (32)).
·There are significant water holes and birthing places within the proposed licence area (see Ms Ronay’s affidavit at (33)-(37) and (42)).
The native title parties also refer to the registered site Lupurinywatngarriwanuma, whose boundary is situated both within and outside the proposed licence and reference is made to the ‘other’ sites identified in the extract from the Aboriginal Heritage Inquiry System, Aboriginal sites database maintained by the DAA.
The native title parties contend that within the proposed licence area there are sites which are so significant to the local Aboriginal community that in accordance with the traditional law and culture, unauthorised persons may not be present at them, particularly where there are restrictions on access under traditional law and custom. Therefore, the native title parties contend that, the mere existence of the grantee party on the proposed licence in circumstances where there has been no negotiation or consultation between the native title parties and the grantee party could be likely to give rise to direct interference to significant sites and areas. The native title parties’ contentions (at 44) refer to the decision in Campbell v Murchison Metal Ltd to support this assertion, in particular at [67] of the Tribunal’s decision, which states:
In particular, the native title party argued that unauthorised access may result in interference where access to and information about specific places is restricted to people of a certain gender or status. The native title party contends that, in these circumstances, the RSHA [Regional Standard Heritage Agreement] will not prevent interference and questions the utility of an endorsement drawing the grantee party’s attention to the AHA. I have already dealt with the question of the significance of the broader Imbin Area, and I do not accept the native title party’s contention that the fabric of the country on, and immediately adjacent to, the proposed licences is such that unauthorised entry will result in the kind of interference contemplated by s 237(b). However, I do accept that access to restricted areas without consultation with the native title party may result in interference. This is particularly relevant for Mt Oolongathoo, access to which is restricted to initiated men.
The native title parties contend it is ‘highly likely’ there is both a men’s secret site and a women’s secret site within the proposed licence, and because the boundaries of these sites are not specifically defined and access to these sites are gender restricted, ‘without the assistance of traditional owners an explorer may unwittingly interfere with these sites’ (at 26 of Ms Ronay’s affidavit).
The native title parties contend the Ngarrangarrni has restricted access, and explorer’s activities can interfere with it, with dangerous consequences for traditional owners.
A number of birthing sites and burial sites are identified as being within the proposed licence area and as having particular significance to the native title parties. Ms Ronay’s affidavit describes the Jarriny birthing site and that ‘members of the taam group are often seen to have come from that country itself as ‘spirit children’’ (at paragraph 5). Ms Ronay deposes that the birthing sites can be ‘extremely dangerous to strangers, but are also intrinsically important to Kija people’. Ms Ronay’s affidavit identifies that it is ‘likely’ that a Kaleru birthing site is located within the proposed licence area.
Ms Ronay’s affidavit also describes a number of significant sites which are outside the proposed licence but, it is contended, relate to the proposed licence.
The native title parties contend that all of the significant sites described within Ms Ronay’s affidavit, taken together with the registered and ‘other’ sites, go to creating an ‘area of significance’ which imposes on the native title parties the obligations to perform ceremony with strangers and family members to protect them (at 7, 8 and 38). Further, the native title parties contend that the complex nature and number of sites within and around the proposed licence reduce the ability of a Government party endorsement relating to the provisions of the AHA to reduce the likelihood of interference with the sites.

Considering the Evidence in context of s 237 of the Act
Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title parties (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title parties’ community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).
The Tribunal has accepted the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. I adopt the approach of the Tribunal in Silver v Northern Territory at [29]-[30]:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement...evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party’s intended activities are outlined at [21] to [25] of this decision.
The native title parties evidence in relation to s 237(a) is outlined at [35] of this decision. Native title party contentions argue there is a ‘high probability the grant will interfere directly with the carrying on of their community or social activities’ (at 15 of the title parties’ statement of contentions) which are summarised as hunting, fishing, conducting intergenerational teaching, camping, collecting bush food and collecting products for use in ceremony.
The native title parties’ contentions refer to Ms Ronay’s affidavit (at 19 and 20) which recounts evidence from Mr Dawson provided during interviews in July 2013 and August 2014 about the collection of Mowindil (or white paint for ceremonial use) at Gadardi (or Pick and Shovel bore) within the proposed licence area. This paint is used for ceremonies which took place in Moola Bulla. Ms Ronay deposes (at 20) that Mr Dawson also noted the ties of these ceremonies to the Winan trade network that extends across the Kimberley.
The native title parties’ contentions refer to Ms Ronay’s affidavit (at 26) where evidence of Ms Walalgie in relation to hunting, fishing, conducting intergenerational teaching, and collecting bush food is recounted as follows:
For hunting and fishing, Ms Walalgie recounts that: “we went down to Ngowandji, that big river, or further down Dirringin”, both places that are likely to be inside the tenement area. As Ms Walalgie describes, “all the old people used to learn us, all the bush honey, Konkebery and everything. Minjarra, that black plum, and Yalaman, bush potato”. Ms Walalgie in turn has taught her children and grandchildren the same knowledge about country and bush food.
Ms Ronay’s affidavit also refers (at 32) to evidence from Ms Walalgie and Ms Wallaby about camping in the vicinity of the proposed licence area. Ms Walalgie, whose evidence is recounted, refers to camping in the past tense and describes the areas where camping took take place.

While I note that in relation to the collection of products for use in ceremony, Ms Ronay’s affidavit (at 19) states that Mr Dawson ‘explained how one place in his experience that people collect Mowindil white paint for ceremonial use’ is at a site within the proposed licence area, it is not clear how frequently the collection occurs, or who undertakes those activities.
In relation to hunting, fishing, camping and collecting bush foods it is not clear that these activities continue to occur in the proposed licence area, where, how frequently, or who undertakes those activities.
In relation to all of the social and community activities described by the native title parties, it is not clear how the grant of the proposed licence will interfere with these activities.
Government party contentions indicate there is not likely to be direct interference with the community and social activities of the native title parties because:
·The native title parties’ evidence is primarily general in nature.
·Much of the evidence refers to activities occurring in the past and does not address whether these practices are ongoing, how often the activities occur and how the grant of the proposed licence would affect the ability of the native title parties to engage in the activities in the future.
·Where information about activities is solely within the knowledge of the native title holders, the Tribunal cannot infer the scope or extent of those activities within the proposed licence.
·The area of the proposed licence has been subject to prior mineral exploration and possible mining activity which is likely to have affected community and social activities.
·8.3 per cent of the proposed licence area is vacant Crown land but the proposed licence is overlapped by two pastoral leases which is likely to have interfered with native title parties’ interests or extinguished native title rights and such native title party activities have been co-existent with these lawful activities.
·There are no Aboriginal communities within the area of the proposed licence.
·Hunting and exploration activity are capable of co-existence.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Freddie vAsia Investment Corporation at [14]). Based on the available evidence I cannot say it appears that exploration activities would directly or substantially interfere with the community and social activities.
In the circumstances, taking into account the evidence available, I am unable to conclude there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DAA documentation that there is one Registered Site and a number of ‘other’ sites on the proposed licence. However, this does not mean there may not be other sites, or areas of particular significance, to the native title parties within the proposed licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The grantee party’s evidence directed at s 237(b) is outlined at [21]-[22] and [28]-[29]. In relation to the grantee party’s intentions with respect to the protection of Aboriginal sites, the grantee party’s contentions note (at 30): ‘the grantee party is conscious of its obligations under the Aboriginal Heritage Act and is committed to complying with this Act’. I note that no Heritage Protection Agreement has been entered into between the native title parties and the grantee party.
The native title parties’ evidence directed at s 237(b) of the Act is outlined at [36]-[45] above.
Government party contentions state that, should there be any areas or sites of significance within the proposed licence, interference with those areas is not likely because:
·There is no evidence before the Tribunal that many of the sites referred to by the native title parties’ fall within the proposed licence area or within the likely sphere of the grantee party’s influence.
·The concerns expressed by the native title parties about interference with sites outside the proposed licence area reflect an overestimation of the activities of the grantee party in the event the proposed licence is granted. There is no evidence that the grantee party is going to conduct activities which will have an influence on areas outside of the proposed licence area. Further, the endorsements and conditions which the Government party proposes to place on the proposed licence (at outlined at [18] to [19] of this decision) should have the effect of minimising the grantee party’s interference with areas such as watercourses and water holes.
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity (as outlined at [14] of this decision) and is largely covered by pastoral leases (as outlined at [13]). It is likely that the activities contemplated by the grantee party in the proposed licence would be the same as or no more significant than, the previous and continuing use of the area.
·The AHA and the associated processes are likely to prevent interference with any area or site of particular significance to the native title holders. In particular any ‘Aboriginal site’ (as defined in section 5 of the AHA) within the area of the proposed licence but not on the Register will be protected by section 17 of the AHA. The grantee party may not contravene section 17 without the consent of the Registrar (under section 16 of the AHA) or the Minister (under section 18 of the AHA).
I note the Government party do not intend to impose a Regional Standard Heritage Condition on the proposed licence, and the grantee party has not provided specific information about their exploration activities. Government party contentions have suggested (at 15) that the Tribunal may infer the grantee intends to exercise the full suite of rights available to it under s 66 of the Mining Act.
The full scope of activity to which the grantee party is entitled under the grant of an exploration licence is set out in s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)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, on or under the land;
(b)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;
(c)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 limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914, 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 though 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 in the land.
The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
The native title parties contend that the proposed licence is a culturally rich area, and sites of significance in the area not listed on the DAA register include dreaming story sites, secret men’s and women’s restricted access sites, dangerous sites, burial sites and birthing related sites.
Within Ms Ronay’s affidavit two of the dreaming story sites described are a spring called Guyangarru created by Willy Wagtail dreaming (Jimbiliyi) (at 14) and sugarbag dreaming site (at 21). Ms Ronay’s affidavit describes the Guyangarru dreaming site at paragraph 14 (emphasis in original):
Jimbiliyi [also referred to as Jimbilyi] made a spring called Dilinja down near the Laura River Bridge, one at Dirru outside of the tenement, and within the tenement a spring called Guyangarru. As Mr Dawson describes, ‘he been travel right around...from Dawson Downs way...from there he been go around from Blackfella creek to Moola Bulla, Red Billabong... One waterhole other side right from Dawson Downs, right in the middle, his name Guyangarru.
The grantee party contends the location of these sites requires clarification, noting there are springs within the proposed licence area and also numerous springs and waterholes close to but outside the western border of the proposed licence, in particular, four springs approximately 900 to 1500 metres from the western border of the proposed licence area. The grantee party further notes there are springs near Dawson Downs waterhole and Dawson Downs Yard which are outside the proposed licence. I accept that while one spring as described by the native title party (at Dirru) may be outside the proposed licence at Dawson Downs, the path of the dreaming as described by the native title party from Dawson Downs and Red Billabong to Moola Bulla cuts through the proposed licence. In addition, the spring, which is said to be within the tenement (Guyangarru), ‘is linked to many other significant sites outside the tenement’ (at 16). The Government party deals with this evidence only in broad terms, stating that such sites may be of particular significance but it is not clear if they are within or outside of the proposed licence (at 68-71). I am satisfied, however, that the native title party have clearly indicated that Dirru is outside the proposed licence, and Guyangarru is inside. As such, I accept that Guyangarru is within the proposed licence, is connected to sites outside the proposed licence, and that it is a site of particular significance.
Ms Ronay’s affidavit describes the location of the sugarbag dreaming site (at paragraph 21) as ‘along the river in the Dawson Downs area’. The grantee party contends that the location of the sugarbag dreaming site is unclear, noting that the Dawson Downs waterhole and Dawson Downs Yard are outside and to the west of the proposed licence, approximately 9.5 to 10 kilometres. The grantee party also note endorsement 2 which regulates vegetation clearing. The Government party deal with this only in very broad terms. I am not satisfied that sufficient evidence has been provided to show this site is within the proposed licence.
The secret men’s and women’s restrictive sites are described at 27 and 28 of Ms Ronay’s affidavit as follows (emphasis added):
Ms Walalgie identified that as you travel further down the river in the tenement you come to Galnyananad, “a secret place for women”. Women can swim and fish there, but not men, who have to remain at some distance from this place.
Further down the river again is a place women can’t go, a restricted men’s site. For that one, Ethel says “We never used to go, we were walking head down”. It appears that these gender restricted sites are inside the tenement. These sites do not appear to be registered with DAA and without the assistance of traditional owners an explorer may unwittingly interfere with them.
The Government party and the grantee party contend that it is unclear from the descriptions provided whether the men’s and women’s secret restrictive sites are located within the proposed licence. The grantee party notes in relation to the description of the location of the secret women’s and secret men’s restrictive sites provided in Ms Ronay’s affidavit (at 27 and 28) that it is not clear which river is being referred to in order to identify the location of the site, and noting that only small sections of the Laura and Margaret Rivers cross the proposed licence area. I note, however, that the quick appraisal shows there are 25 major, and 120 minor non-perennial water courses on the proposed licence, including Laura River. While I accept that the description of the men’s and women’s restrictive sites could be more precise, I also accept that, by their very restricted nature, the native title party may be reluctant to specify exact co-ordinates or locations. Ms Ronay has sworn that she has concluded these sites appear to be in the proposed licence. Ms Walalgie has told Ms Ronay that the secret women’s place is ‘in the tenement’ (see [69] of this decision). As such, I conclude that at the least, the restricted women’s site is on the proposed licence, and is a site of particular significance by its very nature and description provided by the native title party. It is less clear whether the men’s restricted site is on the proposed licence but I accept it is a site of importance to the native title party. I do note Ms Ronay states that Guyangarru may be connected to the men’s restricted site but she was unable to draw a firm conclusion.
Ms Ronay’s affidavit (at 32) cites Ms Walalgie referring to particular burial sites near to ‘a big camp [at] Dawson Downs’ and describes burial sites as being located ‘in the vicinity of the proposed tenement’. The Government party contends it is unclear whether or not these places fall within the area of the proposed licence. I agree with the Government party on this contention.
Ms Ronay’s affidavit describes the Kaleru and Jarriny birthing waters (at 33 to 38) and their significance to the native title parties. Ms Ronay identifies Ms Walalgie’s Jarriny [birthing place] as being ‘in the station creek area, which is inside the tenement’ and in relation to a Kaleru waterhole she goes on to state that she ‘can hypothesise the likelihood that there is one, based on Ms Walalgie’s Jarriny being from Station Creek, within the tenement’. The grantee party, in their contentions, acknowledge that Station Creek crosses through the proposed licence but notes there are areas of Station Creek outside the proposed licence area extending towards Moola Bulla. While I accept this birthing site is an important site for Ms Walalgie and is associated with Station Creek, and may be inside the proposed licence, I do not think it is a site of particular significance for the native title party as a whole, for the purposes of s 237(b). In relation to the Kaleru, Ms Ronay can only state there may be such a water hole in the proposed licence, and both the grantee party and Government party suggest it is not clear the site is in the proposed licence. I agree that while the Kaleru may be a site of particular significance for the native title party (as acknowledged by the Government party), the evidence is not clear as to whether it is on the proposed licence.
The evidence of Mr Dawson about a place called Gadardi where white paint for ceremonial use is collected is described in Ms Ronay’s affidavit (at 19) as being located at Pick and Shovel Bore, which I accept is located within the proposed licence. Evidence is provided in Ms Ronay’s affidavit (at 20) about the significance of the ceremonies for which the white paint is used. Ms Ronay’s affidavit describes the ceremonial grounds as being located ‘at Moola Bulla, close to the homestead, just outside the tenement’ (at 19). I accept that while Moola Bulla is outside the proposed licence, it is associated with the place Gadardi which is of particular significance for the native title party for its white paint, which was collected for use in ceremonies. The grantee party and Government party do not dispute this site is within the proposed licence, and the grantee party states only that there is insufficient evidence it could be interfered with.
I note that the registered site Lupurinywatngarriwanuma (ID 12573), and four of the other heritage places, including Moola Bulla 2 (ID 12597), all share the same exclusion boundary which covers Moola Bulla and extends south from Moola Bulla into the proposed licence. The extract from the Aboriginal Heritage Inquiry System, Aboriginal sites database describes Moola Bulla 2 (ID 12597) as a ceremonial site and notes that the place location for the site is restricted. Two other heritage places share an exclusion zone which is adjacent to this area and extends from near Moola Bulla, south west into the proposed licence. Another heritage place (Palawah (ID 12554)) is located in the centre of this exclusion zone. I accept that the place called Gadardi is on the proposed licence and near these sites, and I conclude it is a site of particular significance to the native title party.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Cherel v Faustus Nominees Pty Ltd (at [81]-[91]). The Tribunal must consider, based on the facts of a particular case and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
The contentions of the Government party that their conditions and the regulatory regime will be sufficient to protect sites, is central to the issues to be determined in this matter. The native title party notes concerns about the State’s regulatory regime, citing, for example, the WA Auditor General’s report entitled Ensuring Compliance with Conditions on Mining dated September 2011 (at 29-31). The native title party states that I should adopt my decision in Karajarri v ASJ Resources Pty Ltd. I do note my comments in that case as extracted by the native title party (at 31), include regarding various reports which had been written in relation to the weaknesses of the States regulatory regime. However, I also concluded in Karajarri v ASJ Resources Pty Ltd (at [48]-[53]) that each matter must be dealt with on its individual facts to determine whether the protective regime is sufficient to make it unlikely that there will be interference with any sites of particular significance found to exist.
I consider the secret women’s restrictive site called Galnyananad, the site called Gadardi at Pick and Shovel and the spring Guyangarru are on the proposed licence, and are of particular significance to the native title party, based on the available evidence. Given the nature of those sites, I suggest that even exploration activities could physically interfere with them. Due to the nature of exploration activities which may be undertaken by the grantee party, including ground disturbance and removal of material up to 1,000 tonnes, there is a real risk of interference, not just a possible chance of such interference with these sites. I accept that these sites may be interfered with through unauthorised or unaccompanied access to the sites. I consider it reasonably likely that the grantee party, unless they have guidance from the native title party, may inadvertently interfere with these areas, particularly those for which boundaries are not specifically defined. Such inadvertent interference with these sites by the grantee party could occur regardless of its intentions to comply with the AHA.

The grantee party argues, broadly speaking, that it is not clear whether some sites are on the proposed licence, and for those which are (for example, Gadardi at Pick and Shovel), the grantee party states there is not sufficient evidence to show they would be interfered with in a significant, direct manner by the activities of the grantee party. However, while the grantee party indicates they will be conducting the ‘usual’ activities related to exploration, it appears this includes ground disturbing work that will be ‘broad based’ (as outlined at [22] of this decision). No further detail is provided about those activities, and as outlined earlier, the relevant Mining Act and Regulations allow the grantee to enter the proposed licence with such equipment and machinery ‘as may be necessary’, and activities can include ‘digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary...’, and taking up to 1000 tonnes of ‘earth, soil, rock, stone, fluid or mineral bearing substances’. The grantee party can also take and divert water ‘from any natural spring, lake, pool or stream’ (subject to relevant legislation and endorsements).
In FMG v Pilbara v Yindjibarndi Aboriginal Corporation, Mckerracher J outlined that:
… the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions (at [75]).
I have considered the nature of the sites of particular significance which I have concluded are on the proposed licence. Guyangarru (the spring made by the Willy Wagtail dreaming), and the secret place for women (Galnyananad) are both sites associated with water and it is stated that Guyangarru is associated with ‘many other significant sites outside the tenement’ (at Ms Ronay’s affidavit, paragraph 16). In addition, Gadardi is associated with ceremonial activities of the native title party, and is also a site of particular significance for the purposes of this matter.
The grantee party and Government party state there have been previous exploration and mining tenements, and well as current pastoral interests, over the area. However, no evidence has been adduced as to what activities have been conducted under those leases, apart from, for example, the DMP quick appraisal which shows, among other things, that the mining tenements each overlapped at less than 0.5 per cent each. As Mckerracher J stated in FMG v Pilbara v Yindjibarndi Aboriginal Corporation:
The existence of the pastoral lease was a factor the Tribunal referred to and took into account in reaching its finding. Without knowing much more about what, if any, activity took place on the pastoral lease, having regard to the remote location, it is impossible to say at this juncture that the Tribunal’s decision was not open to it. The range and nature of activities carried out on the pastoral lease could be entirely different from the range and nature of activities arising on exploration (at [90]).
I suggest this reasoning can be applied to the previous exploration tenements also, in that there is no evidence as to where those tenements overlapped, and what activities, if any, occurred as a result of their grant. No party has indicated that interference to sites of particular significance has occurred as a result of those previous grants.
Given the nature of these sites of particular significance, and that they appear to be connected with other sites in the area, the AHA may not afford such sites protection. The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the AHA, those sites may be ‘areas or sites of particular significance’ to the NTP ‘in accordance with their traditions’ and that is what s 237(b) covers. There appears to be no other agreement or arrangement in place to protect such sites. The native title parties contentions (at 13), and the Tribunal’s Register of Claims confirms, that the claimed rights and interests of both native title parties include the right to ‘maintain and protect places of importance under traditional laws, customs and practices in the area’.
As such, for the purposes of s 237(b), I conclude there is likely to be interference with sites of particular significance in relation to this proposed licence and the expedited procedure does not apply to the grant.

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

As noted above at [8], the native title party has not made any specific contentions on the issue of major disturbance. Nonetheless, the Tribunal is required under s 237(c) to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).
No specific evidence has been provided regarding any special topographical, geological or environmental factors that might exist in relation to the proposed licence. The activities of the grantee party will be subject to the various regulatory regimes that exist in relation to mining, environmental protection and Aboriginal heritage, as well as the specific conditions and endorsements outlined at [18]-[19] which include the requirement to rehabilitate any disturbances made to the surface of the land. There is no evidence to suggest the grantee party will not comply with these regimes or the conditions imposed.
In conclusion, I find that the proposed licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licences E80/4776 to Sammy Resources Pty Ltd, is not an act attracting the expedited procedure.

Ms H Shurven
Member
20 January 2015