Raymond Ashwin and Others on behalf of Wutha People/Western Australia/West Peak Iron Ltd - [2013] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin and Others on behalf of Wutha People/Western Australia/West Peak Iron Ltd, [2013] NNTTA 40 (17 April 2013)

Application No: WO2012/0468

IN THE MATTER of the Native Title Act1993 (Cth)

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

Raymond Ashwin and Others on behalf of Wutha People (WC1999/010) (native title party)

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The State of Western Australia (Government party)

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West Peak Iron Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 17 April 2013

Catchwords: Native title – future acts – 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 attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237

Aboriginal Heritage Act 1972 (WA)
Mining Act 1904 (WA) (repealed)
Mining Act 1978 (WA), ss 61(2), 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99. (‘Cheinmora’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Western Australia v Smith (2000) 163 FLR 32
WF(Deceased) & Ors on behalf of the Wiluna Native Title Claimants/ Western Australia/ Emergent Resources Ltd [2012] NNTTA 17, (‘Emergent’)
Wilfred Goonack and Others/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Representatives of the Mr Paul Tolcon, MDK Legal Pty Ltd

native title party

Representatives of the Mr Jesse Winton, State Solicitor’s Office

Government party Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the Ms Iva Morrell, McMahon Mining Title Services Pty Ltd
grantee party

REASONS FOR DETERMINATION

On 22 February 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E57/900 (‘the proposed licence’) to West Peak Iron 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 native title claim of the Wutha People (WC99/10 - registered from 15 June 1999), (‘the native title party’), wholly overlaps the proposed licence.
According to the notice:
·the proposed licence is one BL in size (that is, one graticular block, or approximately three square kilometres),
·the proposed licence is located 31 kilometres south east of Sandstone, in the Shire of Sandstone,
·the native title party had until 22 June 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 17 May 2012, an objection application was lodged with the Tribunal by Raymond Ashwin and others on behalf of the native title party.
In accordance with standard practice, the Tribunal issued 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 period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Parties attempted to reach agreement, and the Tribunal varied directions at parties’ request on various occasions to allow for negotiations to progress. At the status conference convened on 16 January 2013, the grantee party requested the matter proceed to inquiry.
Directions were issued by the Tribunal and in compliance with those:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government party on 21 January 2013;
·the native title party provided a statement of contentions on 1 February 2013 together with affidavits of Ms June Rose Ashwin (also known as Ms June Rose Harrington-Smith) and Ms Gaye Noo-tha-ma Harris sworn 30 January 2013 and 31 January 2013 respectively;
·the grantee party provided a statement of contentions on 18 February 2013; and
·the State Solicitor’s Office provided the Government party’s statement of contentions in response to the native title party on 6 March 2013.
The native title party, in their contentions, state (at 10) that it wished to call Ms June Ashwin and Ms Gaye Harris to give oral evidence. The grantee party and Government party both requested that the matter be determined on the papers, as allowed by s 151 of the Act.
At the listing hearing on 14 March 2013, parties advised that no further submissions were sought to be filed.
On 21 March 2013, I was appointed by the then President, Mr Graeme Neate, as the Member for the purpose of conducting the inquiry.
Section 151 of the Act requires a hearing ‘if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties’, and s 155 of the Act allows the Tribunal to prohibit the disclosure of certain evidence or information. Upon reviewing the information provided by parties, I found no compelling reason why the matters raised in the contentions and evidence would require an oral hearing. The Tribunal wrote to parties on 25 March 2013 advising that I intended to proceed to determine the matter on the papers, and enquired whether the native title party sought to file any further submissions in relation to my decision to proceed in this way. In the same correspondence, the Tribunal sought clarification of the native title party contentions (at 17) which requested ‘that the portion of any of the witnesses’ evidence that relates to matters pertaining to the stories or dreaming, or both, of the native title party be considered confidential due to the cultural and customary concerns of the native title party’.
The native title party representative advised by email on 26 March 2013 that they no longer sought to proceed with a confidentiality order or restriction of evidence, nor file any further submissions. As such, I did not consider making a s 155 confidentiality order over any of the materials provided.
On 2 April 2013 the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no objections were received in response.

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; 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, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).

Evidence and information provided about the proposed act

Government party

The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and a tengraph quick appraisal.
I note the underlying land tenure of the proposed licence to be a wholly overlapping pastoral lease 3114/1031 (‘Black Hill’), as well as two previously granted exploration licences which wholly overlapped the area between 1993-1999, and 2003-2010 respectively, and a mineral claim from 1970 (under the then Mining Act 1904 (WA)) that overlapped 7.9 per cent of the area.
The quick appraisal document shows the only services affected in relation to E57/900 are fence lines.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licence.
The draft Endorsement and Conditions Extract for the proposed licence 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 Tarlpa at [11]). The following additional conditions would also be imposed on the proposed licence:
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.
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:
·The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
·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.
The Government party states in its contentions (at 20) that it will place the following Regional Standard Heritage Agreement (‘RSHA’) condition on the grant of the proposed licence:
In respect of the area covered by the licence the licensee, if so requested in writing by the Wutha People, the applicants in the Federal Court application No. WAD6064 of 1998 (WC99/10), such request being sent by pre-paid post to reach the licensee’s address, c/- McMahon Mining Title Services Pty Ltd, PO Box 592, Maylands WA 6931, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wutha People the Regional Standard Heritage Agreement (‘RSHA’) endorsed by peak industry groups and the Goldfields Land and Sea Council.

Grantee party

The grantee party statement of contentions indicate (at 29) its proposed exploration activities are the usual activities associated with exploration licences, 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. It states that the work that is considered ground disturbing will be broad based and a minor disturbance.
The grantee party states (at 9) that it has never been accused of breaching, or been prosecuted under, the Aboriginal Heritage Act. It acknowledges (at 16-18) that there may be sites of particular significance located on the proposed licence that are not recorded on the register kept under the Aboriginal Heritage Act, and is, therefore, willing to undertake a heritage survey of the area prior to any ground disturbing exploration and enter into a RSHA. It notes (at 31) that the RSHA or an Alternative Heritage Agreement (‘AHA’) offered specifically provides that the grantee party will:
· Notify the native title party about proposed on-ground works (whether ground disturbing or not) and provide detailed information about those works before commencing them,
·Consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works,
·Carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances, and
·Consult with the native title party before applying for consent under s18 of the Aboriginal Heritage Act.
The grantee party states (at 11) that its attitude to the protection of Aboriginal heritage and the steps it is prepared to take to minimise the likelihood of interference with sites should be taken into consideration by the Tribunal. It states (at 34) it intends to comply with all conditions and legislative requirements, including but not limited to the Aboriginal Heritage Act and the Mining Act, and the subsidiary legislation.
The grantee party also notes (at 35) that the proposed licence is currently wholly overlapped by pastoral lease 3114/1031 and has been the subject of previous licences. Accordingly, the grantee party submits it is likely that any community or social activities on the proposed licence are already subject to, or coexistent with, the lawful activities of the pastoral leaseholders. It contends (at 45) that the native title party’s statements in its contentions are too general and unsubstantiated to be given significant weight.

Native title party

In regard to s 237(a), the native title party contends the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title party in relation to the land concerned because:
oThe grantee party will be able to exercise rights and interests in land that will interfere with the Wutha people’s ability to access the land (at 5(a));
oThe exercise of such rights and interests by the grantee will place an impediment to the activities of the Wutha native title claim group, such as hunting, gathering, extraction of flora, the use of other resources of the land and any religious, ceremonial and other activities on the land including all registered native title rights and interests as contained in their Form 1 Native Title Determination Application (at 5(b));
oThe exercise of such rights and interests will place an impediment to the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationship of the Wutha people to the land (at 5(c)); and
oThe native title party repeats paragraph 7 of their objection application (at 5(d)), which states:
This objection application statement has been limited because the area of the proposed act cannot be identified with sufficient particularity by reading the future act notice. The maps provided lack sufficient topographic details to enable to objector to clearly relate the map to the ground and to really know exactly what is being talked about except for its general location.
The objectors have connections to country identified on the map which includes the future act. These connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers and also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. The grant of the future act will significantly impact on the objecting community’s conduct and enjoyment of these activities and the objectors’ spiritual connection with the land.
The objectors can only properly provide permission or further information when they know the intentions of the grantee party and the exact area that will be affected.
The objectors believe the grant of the subject future act over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. This includes the right to drill holes and excavate material and other rights as defined in the WA Mining Act 1978. The objectors believe the extraction of material anywhere within the country may create a major disturbance to the land
In regard to s 237(b), the native title party contends that the grant of the proposed licence is likely to interfere directly with areas or sites of particular significance in accordance with their traditions in relation to the land concerned because:
oNot all sites of particular significance to the Wutha people in relation to the land concerned have been recorded. Until such time as an approved native title party heritage protection survey has been undertaken in relation to the land concerned, it cannot be said with certainty that the grant of the proposed licence is not likely to interfere with such areas or sites of significance (at 6(a) and 6(f));
oThe Government party has not proposed that a condition be imposed requiring the carrying out of an approved Wutha heritage protection survey prior to a grant of the proposed licence (at 6(b));
oThe Aboriginal Heritage Act 1972 provides for a Ministerial discretion to permit interference with a site or sites (at 6(c));
oThe Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to any exercise of Ministerial discretion to permit interference with a site or sites located within the area of the proposed licence (at 6(d));
oThe Government party has not proposed a condition be imposed requiring the grantee party enter into a Wutha heritage protection agreement (at 6(e));
oThe native title party repeats paragraph 7 of the objection application (at 6(g)) (outlined above for s 237(a) evidence).

In regard to s 237(c), the native title party contends that the grant of the proposed licence is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land because:
oIt cannot be said with certainty that the rights accorded to the grantee party by the grant of the proposed licence will not have a significant impact on aboriginal people who use the land (at 7(a)); and
oAccount needs to be taken of the community life, customs, traditions and cultural concerns of the Wutha people. Unless suitable prior arrangements for consultation and access to the land are made with the native title party by way of a Wutha heritage agreement, it cannot be said with certainty that the grant of the proposed licence is not likely to involve major disturbance to the land, and will create rights whose exercise is not likely to involve major disturbance to the land concerned (at 7(b)).
The native title party contentions also state (at 8) that it is willing to withdraw the objection in return for an undertaking by the grantee party that it will undertake a Wutha heritage protection agreement before the grantee party conducts ground disturbing activities. The native title party indicate (at 9) that it previously provided a Wutha heritage protection agreement to the grantee party in an attempt to resolve the objection.
The native title party filed affidavit evidence of Ms June Ashwin (also known as Ms June Rose Harrington-Smith), which included an annexed copy of a Connection to Country Report prepared by AX Cultures dated November 2012 (‘Report’). The affidavit is made in the following terms:
1.I am one of the registered native title claimants of the registered native title claim for and on behalf of the Wutha people being the National Native Title Tribunal No. WC99/10 and Federal Court No. WAD 6064/98 (“the Wutha Claim”).
2.I make this affidavit in support of the Objector’s objections under s32(4) of the Native Title Act 1993 (Cth) before the Tribunal being No. WO 12/468.

3.I am authorised by the Objector to make this affidavit of their behalf, the contents of which they are in agreement.

4.Save where indicated to the contrary I make this affidavit from facts within my own knowledge.

5.The contents of this Affidavit are true and correct to my own personal knowledge unless otherwise stated in which case the contents are true and correct to the best of my knowledge, information and belief and the source of my knowledge, information and belief is stated therein.

6.I was the person whom commissioned Kymberley Russell as AX Cultures to prepare a connection to country report relating to land the subject of this objection. The report shows the importance of the country to the Wutha People and some of the history of their association with it. A true copy of that report is attached as “JRA-1”.

7.Some of the sites noted in the report are Wingarra Soak, Wrungall Soak and Ularring, Ularring in particular is an important women’s site and is the metamorphosed body of a female Dreamtime Ancestral Woman.

8.Some of the area in the proposed tenement E57/900 (“the proposed tenement”) contains sites of our stories and Dreaming. There are dreaming tracks in the area. We also believe that rocks and hills that are created by or connected by spirits. Some stories I am unable to tell as they are sacred stories and are for our people only.

9.The proposed mining activities in the proposed tenement area will interfere with our community and social activities such as camping and catching animals like kangaroos and emus by traditional methods along with our use of the natural environment for bush medicine, jewellery and making boomerangs, spears and throwing sticks.

10.Members of the Wutha people still make those weapons and try to care for their country today. I try to go to areas of country including the areas of the proposed tenement regularly with my children and grandchildren to make sure it is all okay. We clean soaks, springs and other waterways and remove rubbish. We try to look after the land like our forefathers did.

11.Whilst there are currently no sites recorded as being of significance to Wutha people in the proposed tenement, this does not mean that there are none, as a full heritage consultation has not been undertaken with the Wutha people in accordance with its terms and conditions.

12.There may be sites within the proposed tenement area that are significant. These sites which may be archaeological or hunting sites are significant to us so that under our lore and culture they should not be damaged or disturbed. In addition, if there are resting places of my ancestors in the area and their spirits are disturbed, they could make me and other Wutha people sick.

The Report annexed to the affidavit did not identify the area which was the subject matter of the Report, only to say it was a ‘connection to country’ report. It did refer to various features and sites, but none of these appeared to be within the proposed licence of the current matter, as seen on the Tribunal map provided to parties.
For example, Ms Ashwin refers to Wingarra Soak, Wrungall Soak and Ularring. Wingarra Soak is mentioned in the Report as having been used for ‘water, seeds and meat’ and for ‘regular meetings’ (Report at page 11), but it does not say with whom or how often. Tribunal mapping indicates that Wingarra Soak is within the native title party claim area, but is some distance to the north east of the proposed licence. The Report references Ularring as an important site ‘used by tribal women from this area for hundreds of years...’ (Report at page 12-13). Ularring Rock and Soak does not appear to be within the claim area and is some distance south east of the proposed licence. Ularring as a locality is also on or near the claim area, but again some distance away from the proposed licence.
The Report does not appear to reference, and Tribunal mapping was unable to locate, Wrungall Soak. It would be helpful if parties are to rely on sites or areas as being of significance or particular significance, then clear identification of the position of the site or area is made, where possible. If that is not possible, due to the confidential nature of the information, then a confidentiality order, as described at [11] above, can be requested prior to consideration of release of the information. As such, while the Report outlined an area which is significant to Ms Ashwin and possibly the native title party, it was not relied upon specifically in drawing my conclusions regarding the current proposed licence. In this regard, I concur with the Government party’s submission (at 40) that the Tribunal should not rely on an attached report to supply information that does not appear in the primary evidence of the native title party, for the same reason as the principle applies to anthropological evidence (see for example Emergent).
The native title party also filed affidavit evidence of Ms Gaye Harris, who lives in Leonora, which is south east of the proposed licence. Ms Harris’s affidavit is made in the following terms:

1. I am a Wutha person.
2. I am authorised by the Objector, being the registered native title claimants of the registered native title claim for and on behalf of the Wutha people being the National Native Title Tribunal No. WC99/10 and Federal Court No. WAD 6064/98 (“the Wutha Claim”), to make this affidavit on their behalf, the contents of which they are in agreement.

3. I make this affidavit in support of the Objector’s objections under s32(4) of the Native Title Act 1993 (Cth) before the Tribunal being No. 12/468.

4. Save where indicated to the contrary I make this affidavit from facts within my own knowledge.

5. The contents of this Affidavit are true and correct to my own personal knowledge unless otherwise stated in which case the contents are true and correct to the best of my knowledge, information and belief and the source of my knowledge, information and belief is stated therein.

6.    I was one of the people who worked with Kymberley Russell at AX Cultures to prepare the connection to country report in 2012 which is attached as “JRA-1” to the Affidavit of June Rose Harrington-Smith (also known as June Rose Ashwin) in relation to this matter. I am in some of the photos in the report. See for example the photo of me with June which is photo 14 on page 11 of the report.
7.    The area in and around the proposed tenement E57/900 (“the proposed tenement”) contains sites of our stories and Dreaming. There are also dreaming tracks of The Porcupine, The Mountain Devil, The Malee Fowl, The Owl, The Woman, and the Seven Sisters nearby.
8.    I try to go to areas of our country including the areas of the proposed tenement regularly with my children and grandchildren to take care of it and to make sure it is (especially any water sources) healthy. I also go out hunting for kangaroo, bungarra, and emu. I also pick wild berries, quandong, silky pear and seeds for grinding into flour. I dig for honey ants too. I sometimes also collect bush medicine for healing purposes.

9. Our songs and dreaming stories are in our land so any disturbance to the land (including the proposed mining and associated activities of the Grantee Party) will affect us. I also try to tell stories and dreaming to my family to continue on our oral traditions about the relationship of the Wutha people to the land.

10. I understand that there are currently no sites recorded as being of significance to Wutha people in the proposed tenement. However, this does not mean that there are none, as a full heritage consultation has not been undertaken with the Wutha people.

11. The sites in and around the proposed tenement are difficult to describe in words and need oral evidence to explain properly. In our lore and culture, none of these sites should be damaged or disturbed.

12. Some of the oral evidence that I give my (sic) need to be given in confidence.

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 party (in the sense of there being a real risk of interference), (see Smith 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 at [23]). The assessment is also contextual, taking account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that 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. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
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 and intentions are outlined at [27]-[29] above. The Government party submits (at 18) that there is no basis for a conclusion that the grantee party will not act in accordance with its stated intentions, and significant weight should be given to the range of things which the grantee party proposes to do, as compared to the activities which the grantee party could do (see Western Australia v Smith (2000) 163 FLR 32).
In regard to the grantee party’s intentions, the Government party contentions note (at 16) that the grantee party is aware of its obligations under the AHA and has indicated that it is aware of the heritage concerns referred to in the native title party contentions and evidence. The Government party also note (at 17) the grantee party has: acknowledged that there may be sites of particular significance located within the proposed licence that are not recorded on the DIA register; indicated its willingness to enter into an RSHA; indicated that it intends to conduct its work in a way which does not adversely impact on heritage sites and which respects local Aboriginal community or social activities.
The Government party contends (at 54) that the grantee party’s willingness to enter into an agreement with the native title party is a relevant factor in determining there is not likely to be interference with the social and community activities of the native title party (see Butcher Cherel). It notes (at 23) that the RSHA provides the grantee party must: notify the native title party about proposed on-ground works (whether ground-disturbing or not); provide detailed information about those works before commencing them; consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works; carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances; and consult with the native title party before applying for any consent under section 18 of the AHA.
The native title party’s contentions in relation to s 237(a) are outlined at [31] above.
The native title party also refers to the contents of its objection application, for example to connections to country indentified on a map which includes the future act area, and suggests these connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. The native title party states that exploration activity will scare away bush animals, especially when people are drilling and using bulldozers, and also destroy plants used for bush tucker and medicines. They state this may also destroy sites, and that the grant of the future act will significantly impact on the community’s conduct and enjoyment of these activities and their spiritual connection with the land.
The native title party’s affidavit material is outlined at [35] and [39] above. In Ms Harris’ affidavit, she says she tries to go to ‘areas of our country including the proposed tenement area regularly’ with her children and grandchildren ‘to take care of it and make sure it is (especially the water sources) healthy’ (at 8). She states that she goes hunting for kangaroo, bungarra and emu, and collects wild berries, quandong, silky pear, honey ants, seeds for grinding into flour and bush medicine (at 8). Ms Harris also deposes to telling stories and dreaming to her family to continue the oral tradition about the relationship of the Wutha people to the land (at 9).
Ms Ashwin states in her affidavit (at 9) that ‘[t]he proposed mining activities in the proposed tenement will interfere with our community and social activities such as camping and catching animals like kangaroos and emus by traditional methods along with our use of the natural environment for bush medicine, jewellery and making boomerangs, spears and throwing sticks’. She deposes that members of the Wutha people ‘still make those weapons and try to care for their country today’ and that she tries ‘to go to areas of country including the areas of the proposed tenement regularly’ with her children and grandchildren, to ‘clean soaks, springs and other waterways and remove rubbish’ (at 10).
In response, the Government party contend (at 36) that the Tribunal can accept that the affidavits of Ms Ashwin and Ms Harris are accurate statements of belief and that those beliefs are genuinely held. However, the Government party submits (at 38) that the affidavits are of limited assistance to the Tribunal on the question of the extent to which the grant of the proposed licence may interfere with community or social activities, and submits that the concerns raised are speculative.
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 Asia Investment Corporation at [14]). The Government party submits (at 52) that the likelihood of interference directly with the carrying on of community or social activities will only arise if there is evidence of the carrying on of the activities. In the present matter, I agree with the Government party that there is insufficient evidence provided by the native title party about the frequency with which areas within the proposed licence area are visited for communal or social activities. Based on the available evidence, I cannot say that it appears the activities proposed by the grantee party will directly interfere with the community and social activities associated with the proposed licence.
The Government party states (at 25-26) that to the extent members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the regulatory regime. Rather, the evidence must demonstrate that ‘the particular party undertaking the particular act will not comply with a regulatory regime’. I agree with the Government party’s submission that evidence of this type has not been provided by the native title party in this proceeding.
To the extent the Tribunal may accept that the evidence demonstrates members of the native title party carry out community and social activities, the Government party submits there is not likely to be direct interference because:

The area of the proposed licence has been subject to prior mineral exploration, and it is likely these activities have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area (at 59(a));
The area of the proposed licence is also entirely covered by a pastoral lease, and some (or most) of these interests are likely to have extinguished at least any native title rights to control use of and access to the relevant land (if native title has not been previously extinguished) (at 59(b));
The low-scale and infrequent exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon camping, hunting, foraging, or cleaning and caring for country in the proposed licence area, particularly given the intentions of the grantee party to conduct those activities with cultural sensitivity and to maintain good relations with the native title party (at 59(c));
The area of the proposed licence is approximately three square kilometres, whereas the area of the Wutha claim is approximately 32,684.37 square kilometres. Given that the area of the proposed licence is approximately 0.009 per cent of the total claim area, this reduces the possibility that the grantee party’s activities will interfere with the community or social activities described by the native title party (at 59(d));
Hunting and gathering and mineral exploration activity are, by their nature, capable of coexistence (at 59(e));
It is difficult to see how mineral exploration activity could cause substantive interference to the ability of native title party to access the area of the proposed licence (at 59(f)); and

Given the limited nature of the rights held by an exploration licensee, there is little prospect of access being prevented in any substantial way (at 59(g)).

In the circumstances, taking into account the evidence available, I am unable to conclude that 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 DIA documentation that there are no Registered Sites within the overlap between the claim and the proposed licence areas. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence/claim overlaps or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party’s contentions directed at s 237(b) of the Act are outlined at [32] above.
The native title party’s affidavit evidence is outlined at [35] and [39] above.
Ms Harris states that the area ‘in and around the proposed tenement’ contain sites of the native title party’s stories and Dreaming. She notes that there are also dreaming tracks of The Porcupine, The Mountain Devil, The Malee Fowl, The Owl, The Woman, and The Seven Sisters (at 7).
Ms Ashwin states that some of the proposed licence contains sites of the native title party’s stories and dreaming (at 8), and that there are dreaming tracks in the area. She notes that some of the sites mentioned in the Report are Wingarra Soak, Wrungall Soak and Ularring (at 7). I note that the Ularring site is referred to in the Report, where it states that the site has been used by tribal women from the area for hundreds of years, and that knowledge of the site has been passed down through the maternal ancestry to generation of today (pages 12-13 of the Report). As noted in [37] of this decision, Ularring is not within the proposed licence, and is some distance away. Ms Ashwin further states that while there are currently no sites recorded as being of significance to Wutha people in the proposed licence, this does not mean that there are none, as a full heritage consultation has not been undertaken (at 11), and that if there are resting places of her ancestors in the area, disturbance of their spirits could make her and other Wutha people sick (at 12).
The Government party states (at 68) that while Ms Harris names some dreaming tracks which are said to be located ‘in and around’ the proposed licence, little detail is given apart from their name, and so their location and relationship to the proposed licence is unclear, as is the content or importance of their dreaming. The Government party does not accept that sites of stories or dreaming are all necessarily ‘sites of particular significance’ for the purpose of s 237(b). Further, the Government party states (at 69) that to the extent that Ms Ashwin deposes to the existence of three named sites (namely Wingarra Soak, Wrungall Soak and Ularring), there is no suggestion that these sites are within the proposed licence, or even in the vicinity of the proposed licence. The Government party states that the Report fails to accurately identify the location of these sites and it must be assumed, they are not located in the proposed licence. I agree with the Government party’s argument, to the extent that these places do not appear to be within the proposed licence, as evidenced by Tribunal mapping. I also concur with the Government party contention (at 71-75) that the native title party has not provided sufficient evidence for the Tribunal to determine the location of any area or sites of particular significance, in context to the proposed licence.
The Government party further states that should there being 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 the Wingarra Soak, Wrungall Soak and Ularring extend into the area of the proposed licence (at 78(a));
To the extent that any of the sites of stories and dreaming are a ‘site of particular significance’, the grantee party is aware of the existence of those sites and of its legal obligations in respect of those sites (at 78(b));
The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive, and any ground disturbing activities (such as exploratory drilling) are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns (at 78(c));
If the general assertion that any ground disturbance will result in spiritual disturbance were sufficient to not apply the expedited procedure, this would affect the grant of almost all exploration tenure in Australia, as such beliefs are common amongst Aboriginal people in many areas (at 78(d));
Evidence about the spiritual disturbance reflects a general spiritual concern to which s 237(b) of the Act does not apply – spiritual or emotional concerns must attach to physical interference with an identified area or site of particular significance (at 78(e)); and
The area of the proposed licence has been subject to prior mineral exploration and it is entirely covered by a pastoral lease, so 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 (at 78(f)).

The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). I believe the evidence before me does not disclose a sufficient basis to reach a conclusion that there are sites of particular significance on the proposed licence.
The regulatory regime based on the AHA has also been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective 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 Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases 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 sites of particular significance found to exist. Based on these considerations, I am satisfied that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of ‘particular significance’, which may exist, in the context of the grantee party’s stated program of activities. I also note that the Government party (at 20 and 76) states it will impose a condition on the grantee party requiring execution of an RSHA at the request of the native title party.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.

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

The Tribunal is required to make an evaluative judgment on 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, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party’s submissions in relation to s 237(c) are outlined at [33] above. In summary, they are that the grant of the proposed licence is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to the land, because it cannot be said with certainty that the grantee party rights will not have a significant impact on the Aboriginal people who use the land. I agree with the Government party contentions (at 87) that s 237(c) is in fact primarily concerned with the impact of the future act on the land, not on the people who use the land. It has also been established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas at [84]). Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]).
The Government party submits the grant of the proposed licence is not likely to involve major disturbance to the land or waters or create rights, the exercise of which is likely to involve major disturbance to land or waters, because:
·    The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive. Any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites (at 88(a));
·    The exercise of rights conferred by the exploration licence will be subject to the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment (at 88(b));
·    Any authorised disturbance to land and waters caused by the grantee party may be mitigated in accordance with proposed conditions requiring rehabilitation of the land following completion of exploration (at 88(c));
·    The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity. It is also entirely covered by a pastoral lease, so the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 88(d)); and
·    It does not appear that the area of the proposed licence has any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters, given the activities being proposed by the grantee party (at 88(e)).
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including:
·    The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
·    Additional conditions will be imposed, including a condition requiring execution of the RSHA upon request from the native title party;
·    The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
·    There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and
·    There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E57/900 to West Peak Iron Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
17 April 2013