Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL - [2008] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108 (6 August 2008)

Application No: WO07/896

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

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

Nicholas Cooke and Others on behalf of Innawonga People (WC98/69) (native title party)

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The State of Western Australia (Government party)

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Dioro Exploration NL (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 6 August 2008

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure is attracted

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

Mining Act 1978 (WA), s 63

Aboriginal Heritage Act 1972 (WA)

Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Representative of the
native title party: Mr Denis Jacobs, Pilbara Native Title Service

Counsel for the
native title party: Mr Adam Slattery, Pilbara Native Title Service

Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources

Representative of the
grantee party: Mr Peter Del Fante, Dioro Exploration, NL

REASONS FOR DETERMINATION

On 9 May 2007, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E52/1996 (‘the proposed licence’) to Dioro Exploration NL (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 627.74 square kilometres located 44 kilometres southeast of Paraburdoo in the Shires of Ashburton and Meekatharra. It is overlapped by the registered claim of the Gobawarrah Minduarra Yinhawanga People (WC97/43, registered from 29 October 1999) by 90.11 per cent and of the Innawonga People (WC98/69, registered from 29 September 1998) by 90.09 per cent. The Nharnuwanngga Wajarri Ngarlawangga People, whose native title claim was positively determined in the Federal Court on 5 July 2001 (WD01/1), also overlaps the proposed licence by 8.2 per cent.
On 10 September 2007 an objection to the expedited procedure statement was lodged with the Tribunal by Mr Nicholas Cooke and Others on behalf of the Innawonga People (‘the native title party’) in respect of the proposed licence. No objection was lodged on behalf of Gobawarrah Minduarra Yinhawanga (WC97/43) or the Nharnuwanngga Wajarri Ngarlawangga People.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to the resolution of the objection by consent.
At a preliminary conference on 16 October 2007, the grantee party confirmed that a Regional Standard Heritage Agreement (‘RSHA’) had been offered to Gobawarrah Mindauarra Yindawanga. The Government party requested that the matter proceed to inquiry but the representative for the grantee party was not able to confirm the grantee’s instructions in this regard until a status conference on 5 December 2007, at which time the grantee party also requested that the matter be determined by the Tribunal. At the request variously of the native title party and the Government party, and with the agreement of all parties, I approved amendments to directions on four subsequent occasions, finally requiring compliance by the Government on or before 29 April 2008 and that of the native title party on or before 26 May 2008.
In accordance with amended directions, the Government party lodged its contentions and evidence by 18 April 2008 and the native title party by 26 May 2008. The grantee party had previously submitted that it would rely on the Government party’s contentions and evidence. At the listing hearing on 5 June 2008, parties confirmed that all contentions and evidence had been lodged and agreed that the matter could be heard ‘on the papers’, that is, without a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA). A Tribunal map (final version) based on the evidence provided by the parties was completed on 21 July 2008 and provided to parties and is also evidence in this inquiry.

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

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

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been strengthened.
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23).

Evidence in relation to the proposed act

Government party documentation establishes the following notable underlying land tenure on the proposed licence:

Mininer Pastoral Lease 3114/1193 (78.9 per cent overlap)
Turee Creek Pastoral Lease 3114/937 (3.8 per cent overlap)
Mt Vernon Pastoral Lease 3114/888 (16.7 per cent overlap)

Notable features include one aircraft landing ground, one airfield runway, and an onshore gas pipeline.

A search of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act1972 (WA) provided by the Government party reveals no registered sites within the proposed licence E52/1996. Documentation also confirms that there are no Aboriginal communities within or adjacent to the proposed licence.
Government party documentation reveals that the proposed licence area is 5.2 per cent overlapped by one ‘live’ (active) licence. ’Dead’ tenements include ten exploration licences variously granted and active between in 1984 and 2005.

The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions include, among others, the following:

Providing notification to the pastoral or grazing lessee, of the grant of the licence and of certain exploration activities (conditions 5–6)
No interference with Geodetic Survey Station R 400, R401, TUR 75 and TUR 75T and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 7)
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (condition 8)
No mining within 25 metres of either side of the Gas pipeline contained within FNA 3912 as shown in Tengraph (condition 9).
Various conditions associated with the Safety Zone area for the purpose of protecting the Gas pipeline (conditions 10-16).

In addition Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) are included on grant of title drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act1972 (WA) and any Regulations thereunder, and the Environmental Protection Act1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party will also impose the following condition on the grant of the licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Gobawarrah Minduarra Yinhawanga, the applicants in Federal Court application no. WAD 6173 of 1998 (WC97/43), such request being sent by pre-paid post to reach the licensee’s address c/- Corporate Tenement Services Post Office Box 684, Bentley WA 6151 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Gobawarrah Minduarra Yinhawanga the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Yamatji Land and Sea Council.’

Native title party evidence

The native title party’s submissions include the sworn affidavits of Nicholas Cook and Lola Young, dated 29 May 2008 and witnessed by A.B. Slattery, legal practitioner with the Pilbara Native Title Service, the service arm of the Yamatji Barna Baba Maaja Aboriginal Corporation, being the representative body for the native title party. The affidavits are made in the following terms:

Affidavit of Nicolas Cook

‘On 29 May 2008 I, Nicholas Cook, Innawonga chief, resident of Wakathuni community, between Tom Price and Paraburdoo affirm-
I am Nicholas Cook, my traditional name is Ingalingoo. That name is one of my old mans’ songs. I am Innawonga person.1.
My grandfather was the chief of the Innawonga. When he passed away that law was given to me. I was the oldest grandson. I was young then though. I had to go through the law first. In the mean time other people kept the law and looked after it until I went through. I have done that. Now I am the elder and keeper of the law. I am the one who says yes or no. The other traditional owners recognise me as that. When they want to put their boys through the law they notify me first. We share our law with Ngarlawangga. We used to share the same ground. With Bunjima mob too.2.
I live at Wakathuni community. We have a law ground and burial ground here. Each year we put our boys and boys from other tribes through the law. This is unless someone important dies like last year then we don’t until the next year.3.
When we put the boys through we sing the songs. We sing them every night for six weeks and tell them about what the songs mean. The country that Dioro want through is in our tribal law songs. That makes that country significant to us. When we sing our songs it puts us in this country.4.
I know that the country Dioro wants to go through is in Innawongs country because my lawyer Mr Joogury Slattery showed me a map. We call him Joogury because an elder with his name died the other week. That map is attached to this affidavit marked ‘A’. Where Dioro want to go through goes from Mt Elephant or Parldulruna, across to just west of the 118 degree in a band between the Tropic of Capricorn and in the south from around Mininer across to the ranges above the Angelo River.5.
The place where Dioro wants to go, at the most Northern part where they go, is Neirrinba. They shouldn’t go near there without talking to me because of the Warlu. The Warlu is a serpent. This is to do with our dreaming and it sacred to us. This dreaming is connected to the water. Where Dioro goes to the south of Neirinba is where the water runs. It is important that the water runs. Already, the water does not run like it did because of the mines.6.
Dioro should speak to us first because the water feeds that country. We hunt in that country and the women get wild potatoes. People go through there hunting every weekend or so. There is a connection between the Warlu and the food we find and hunt. I am worried that Dioro are going too far north. They should speak to me about it first.7.
Joogury told me that Dioro have only spoken to Goobawarrah Mindauarra Yinhawarnga (GMY). This is not right in our law. GMY don’t have the Innawongga law. I do. That law is the law of the Innawongga country. That is where Dioro is going. They should speak to me. They need to hear what I have to say about what they want to do.8.
GMY made that name up. Goobawarrah means Ashburton River, Minduarra is a tree and Yinawangga is another way of spelling Innawonga. Goobawarrah don’t practice our law. They practice their law at Roebourne. There songs don’t sing about this country on the map Joogary showed me. GMY don’t carry that country’s law. If Dioro only speaks with GMY about it then they won’t understand anything about out country.9.
We know what’s in our country and Dioro will not unless they speak with us.’10.

Affidavit of Lola Young

‘On 29 May 2008 I, Lola Young, Innawonga elder, resident of 29 Mungarra Street, Tom Price WA affirm –

My name is Lola Young. I am an Innawonga person. Ngumee is my traditional name. That name was given to me by my aunty.1.
I am a Innawonga person because I followed by grandfather, George Cutacross. He was the Innawonga chief when he was alive. My dad is Innawonga too. His name is Cooky. He had a Bunjima mother, named Budtha.2.
I am an elder of the Innawonga. After my uncle Chubby died I became the eldest first born from all my mob. All my other uncles are dead too. Because of that I took over as the elder in my family. This is what makes me an elder.3.
My lawyer Mr Joogary Slattery told me that ‘a mining exploration company called “Dioro” wants to go into Innawonga country and do exploration by drilling holes and all that’. I call him Joogary because my uncle died who had his first name.4.
I have never heard from Dioro about them wanting to go on our country. I have not heard from any other people that they want to do that.5.
My lawyer also told me that ‘the company has spoken to the Gobawarrah Minduarra Yinhawanga (GMY) mob about it and they said it is ok’.6.
Let me tell you something about the Gobawarra. There is no such name as Gobbawarra being a people. There never has been. They made that name up themselves. The Ngarlawangga people can tell you that. They use a mix up of our words to make up that name. Goobawarra is the name of the Ashburton River. The word Minduarra, they got that from the tree we make dancing sticks out of and Yinhawanga is another way of spelling Innawonga.7.
Gobawarra have no right to speak for our country. They practice their law and culture up Roebourne. That law is different to Innawonga country.8.
We know them. We speak to them twice about what they are doing and saying. We said that they can come back to us but they went. We have never spoken to them again. We don’t speak. They have no claim to our country.9.
Joogary showed me on a map where the company wants to go. That map is attached to this affidavit marked ‘A’. They go from around Mt Elephant, its marlpu name in the songs is Parldulruna, to some ranges a bit east of where the white fella put the 118 degrees. They go between the line that is Tropic of Capricorn, like the Capricorn Roadhouse, and from Mininer across to the east.10.
We have songs that speak about this country right up to the boundary at Indabiddy. From there Ngarlawnagga takes on the song from the point of the hill. We start our songs from Rocklea. They go right around in a circle. They sing our boundary. The men sing these songs when they put the boys through law and bring them out. They sing other songs too. I have songs as well. They are my father’s song.11.
I can’t talk about that law too much as that’s men’s business. I can say that we go through them springs in that country digging the wild potatoes and everything. There’s a lot of wild potatoes, Innawonga name, gulyu, and bush bananas through there. While we do that the men go hunting. It’s a place where we families meet and all that. That’s what’s so special about the place. I am worried that Dioro will mess up the crops and spoil our camps and the hunting. I want them to speak to us first before they do anything.’12.

The evidence of Nicholas Cook and Lola Young is uncontested and I accept it. They are listed as two of the persons comprising the Innawonga applicant for native title and I am satisfied that both deponents have authority to speak on behalf of the native title party.

Mapping provided by the Tribunal’s geospatial unit show ‘Mininer’ homestead to be within the proposed licence.

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 pursuant to them are likely to (in the sense of there being a real risk) interfere with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([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 (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The evidence suggests that the proposed licence has been subject to prior exploration activities which may already have affected the native title party’s community or social activities. There are also three existing pastoral leases which have probably affected activities to some extent.
The evidence of Mr Cook establishes that he and other members of the native title party have previously and continue to “put our boys and boys from other tribes through the law.” Mr Cook deposes that “we have a law ground and burial ground here. Each year we put our boys and boys from other tribes through the law. That is unless someone important dies like last year then we don’t until the next year”. However, the evidence does not indicate with any specificity that these activities actually occur on the proposed licence area. To the contrary, the activities are said to occur at Wakathuni Community, where Mr Cook is said to live, which is some 63 kilometres north of the proposed licence at its nearest point.
Mr Cook also states that “We hunt in that country and women get wild potatoes. People go through there hunting every weekend or so” and current community and social activities are also evidenced in Ms Young’s statement that “we go through them springs in that country digging the wild potatoes” and collecting bush bananas. She says that the men go hunting and people meet over a wide area which extends south from Rocklea which is some 40 kilometres north of the proposed licence area at its nearest point. I am prepared to accept that there is some activity which is contemporary and on-going and that some of it occurs in and around the proposed licence area. However, it is also clear that these activities occur over a much wider area. Tribunal mapping suggests that there is a number of springs and waterbodies not only within the external boundaries of the proposed licence but also in the wider vicinity. The evidence is not specific enough to support a finding of sustained community or social activities on the proposed licence area specifically.
In general the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with a native title party’s community or social activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). However, this is not an inevitable finding (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23])). In this case the proposed licence does encompass a significant area (over 627 square kilometres) but the south eastern portion of the tenement does not fall within the boundaries of the Innawonga People’s claim and the claim as a whole encompasses over 4167 square kilometres stretching to the north, west and east of the subject area.
Taking account of the above factors, I am unable to conclude that the evidence is persuasive enough to take this matter out of the findings usually made by the Tribunal that exploration activity is unlikely to directly interfere with the community or social activities of the native title party. My finding is that the proposed exploration activity is not likely directly to interfere with the community or social activities of the native title party.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. 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 Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.
The uncontested evidence of the native title party indicates that there may be one or more sites in the vicinity of the proposed licence which have the potential to be of particular significance to the native title party. Most specifically, Mr Cook (affidavit para 6) speaks of Neirrinba, which is said to be located within the northern portion of the subject area, and within which a sacred serpent (‘the Warlu’) resides. He also refers to a law ground and burial ground, but as explained above this is not located within the proposed licence area. Less specifically Mr Cook (para 3) says the proposed licence area is included in an area covered by tribal law songs which makes the area significant. Ms Young’s evidence (para (1) is that her people have songs that speak about the entire area of country over which the proposed licence is located (and much further a field) although she is not able to provide further information because it is ‘men’s business’. The area referred to by Ms Young extends from Rocklea (which is some 40 kilometres to the north-west of the nearest point of the proposed licence area) to Indabiddy (which appears to be some 30 kilometres to the east of it).
I am satisfied that the site or area described as Neirrinba is a site of particular significance to the native title party in accordance with their traditions and that it is probably at least in part located on the area of the proposed licence. I can also accept that the extensive area for which songs are sung is of significance to the native title party but do not consider that the general evidence on this topic, which covers an extensive area, means that the whole area can be regarded as of special or more than ordinary significance so as to be covered by s 237(b) of the Act. While the possibility exists that there may be other specific sites or areas of particular significance within the proposed licence area the evidence is insufficiently specific to make a positive finding to this effect.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA), and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act 1972 (WA) which has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act 1972 (WA) is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
The grantee party has not provided specific evidence of its exploration intentions and therefore I must conclude that upon grant, the grantee party will conduct its exploration activities and exercise its rights to the full extent permitted by an exploration licence and that this would have the potential to interfere with Aboriginal sites.
The grantee party has signed and offered a RSHA to the Gobawarrah Minduarra Yinhawanga registered claimant. The RSHA process adopted by the Government party in various regions of Western Australia after discussions with the relevant representative bodies and industry has been detailed in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15] – [35] (‘Champion’). The condition of grant proposed by the Government party confirms that the grantee party must sign an agreement with the Gobawarrah Minduarra Yinhawanga if requested by them within a specified time after grant if an agreement has not already been reached. The Tribunal has been advised that the Gobawarrah Minduarra Yinhawanga registered claimants have already signed a heritage agreement.
The native title party contends that for sites to be adequately protected, the grantee party should consult with the native title party which, it contends, it has not done in this case. Mr Cook and Ms Young also depose that the grantee has not spoken with the Innawonga People and that the Gobawarrah Minduarra Yinhawanga People have no right to speak for Innawonga country. I must therefore consider whether consultation and, potentially, a RSHA executed with Gobawarrah Minduarra Yinhawanga, is sufficient to ensure sites are protected throughout the subject area. Under the Government party’s condition the native title party will not have an option to enter into a RSHA if the proposed licence were granted.
The extent of the native title claim of the Gobawarrah Minduarra Yinhawanga People is greater than that of the Innawonga People although each group shares a common north and south boundary and the Innawonga claim area is entirely overlapped by the Gobawarrah Minduarra Yinhawanga claim. Ms Young states that Gobawarrah Minduarra Yinhawanga People practice their law and culture up Roebourne, which is well over 300 kilometres north of the subject area, but notwithstanding this it is an undeniable fact that that group’s claim area encompasses much of the same country as the Innawonga claim and that both claims have passed the registration test. Nicholas Cook deposes in his affidavit at paragraph 3 that ‘each year we put our boys and boys from other tribes through the law’ and although he does not specify to which tribes the other boys belong, the statement does indicate a willingness to share significant information as well as indicating some commonality between the law and customs of different groups.
It is not the Tribunal’s role to consider who best speaks for country but rather to evaluate whether sites of particular significance to the native title party are likely to be interfered with by the activities undertaken pursuant to the grant of the proposed licence. I have found that there is at least one site of particular significance to the Innawonga People and there may be others within the subject area of which the grantee party is now aware. Even though there is provision for a heritage survey to be conducted pursuant to the terms of the RSHA with Gobawarrah Minduarra Yinhawanga, the grantee will still need to ensure that the right people (including the native title party) are consulted in relation to Aboriginal sites to avoid any breach of the Aboriginal Heritage Act 1972 (WA).
It is my view the evidence in the present matter does not exhibit ‘site rich’ characteristics to justify a finding that the regulatory regime will be inadequate and make interference with them likely. Because the grantee party is on notice of the existence of at least one site of particular significance and possibly others the defence of s 62 of the Aboriginal Heritage Act 1972 (WA) will not be available to it if it interferes with these sites. The fact that the grantee party has executed a RSHA (which has been agreed to by the Gobawarrah Minduarra Yinhawanga people) in accordance with the Government party’s policy can be taken into account as evidence that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act 1972 (WA). However, this does not mean that the grantee party’s obligation with respect to Aboriginal sites ends with the conduct of site surveys carried out to the satisfaction of the Gobawarrah Minduarra Yinhawanga registered claimant only. The evidence in this matter establishes that there are or may be sites of particular significance to the Innawonga native title party which are not necessarily of significance to the Gobawarrah Minduarra Yinhawanga people.
I am satisfied that the presumption of regularity can apply in this case. There is no evidence that the grantee party has or will act contrary to the law and particularly the regulatory regime dealing with Aboriginal sites based on the Aboriginal Heritage Act 1972 (WA).

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

No contention is made by the native title party in relation to s 237(c), however it is raised as an issue in the Form 4 objection application. I make the following findings.
In summary, s 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance to land or waters or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005). The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43 [2005] NNTTA 6 (8 March 2005), Hon C J Sumner and cases cited therein at [50]).
Mr Cook says that the grantee should speak with Innawonga People before exploring because the water feeds the country. I take it that Mr Cook is inferring that major disturbance may occur from the proposed grant to these waterways. However, Mr Cook does not elaborate on his assertion that rivers have already been interfered with because of ‘mines’ and without evidence of the nature of the interference I am unable to make a finding on whether this constituted major disturbance and if a similar effect would be caused by the proposed exploration activity.
In considering s 237(c) the Tribunal can have regard to the fact that there are no Aboriginal communities in the vicinity; that the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). I find that there is not likely to be major disturbance to land or waters in this case.

Determination

The determination of the Tribunal is that the grant of exploration licence E52/1996 to Dioro Exploration NL is an act attracting the expedited procedure.

Hon CJ Sumner
Deputy President
6 August 2008