Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd - [2013] NNTTA 44

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44 (9 May 2013)

Application No: WO2012/0361-0362

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

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IN THE MATTER of an inquiry into expedited procedure objection application

Raymond Ashwin & Ors on behalf of Wutha – (WC1999/010) (native title party)

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The State of Western Australia (Government party)

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Kubwa Iron Ore Holdings Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Daniel O’Dea, Member
Place:   Perth
Date:   9 May 2013

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 35, 36, 109, 146, 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA) s 61, 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
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
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
Raymond Ashwin & Ors/Western Australia/West Coast Geoscience Pty Ltd [2013] NNTTA 34
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representative of the Mr Paul Tolcon, Mony De Kerloy
native title party:
Representatives of the Mr Jesse Winton, State Solicitor’s Office

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the Ms Lydia Brisbout, McMahon Mining Titles Pty Ltd
grantee party:

REASONS FOR DETERMINATION

On 25 January 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E57/889 and E57/890 (‘the proposed licences’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are located in the Shire of Sandstone and comprise:
· 10 BL, or approximately 30.29 square kilometres, 35 kilometres east of Sandstone; and
·13 BL, or approximately 39.36 square kilometres, 25 kilometres east of Sandstone.
The proposed licences are situated 99.49 per cent and 100 per cent respectively within the registered native title claim of the Wutha People (WC1999/010) – registered from 15 June 1999. No other registered native title claims or determination areas overlap the proposed licence.
On 10 April 2012, Raymond Ashwin and Ors on behalf of Wutha (WC1999/010) (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of E57/889 and E57/890 (designated by the Tribunal as WO2012/0361-0362).
In accordance with standard practice, 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 period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference convened on 24 July 2012 the grantee party advised that it would review and consider a proposed agreement provided by the native title party, and this remained the case as at the status conference on 22 August 2012. At a further status conference on 6 December 2012, the grantee party advised that it wished to proceed to inquiry.
Pursuant to the directions, the Government party lodged supporting documents on 29 January 2013; the native title party submitted a statement of contentions on 4 February 2013; the grantee party submitted a statement of contentions on 11 February 2013 and (following a request to vary directions) the Government party lodged a statement of contentions in response on 1 March 2013.
The native title party’s contentions of 4 February 2013 state that oral evidence was sought to be given by two witnesses (Ms June Ashwin and Ms Gaye Harris) which would relate to the likelihood of direct interference to the carrying on of community and social activities of the native title party (at paras 11-12).
A listing hearing was convened on 21 March 2013, where the native title party agreed with the other parties that the matter could proceed on the papers.
On 2 April 2013, I was appointed Member for the purposes of the conduct of an inquiry into the application.
The Tribunal has the power to prohibit the disclosure of any evidence given before it or the contents of any document produced to it: s 155. In its original statement of contentions the native title party submitted that ‘the portion of any of the witnesses evidence that relates to matters pertaining to the stories or dreamings, or both, of the native title party be considered confidential due to the cultural and customary concerns of the native title party’ (at para 17). I would take this to be a request for an order under s 155, however, the only further evidence supplied in this regard was contained in the affidavit of Ms Harris, where she states that some of the evidence that she sought to give may need to be given in confidence (at para 12). I have previously addressed this issue in Raymond Ashwin & Ors/Western Australia/West Coast Geoscience Pty Ltd [2013] NNTTA 34. The circumstances in that matter are almost identical to this one. The issue of confidentiality was not pursued further by the native title party and no s 155 order has been made.

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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings 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 Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings 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 the findings of the Tribunal in Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘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 and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).

Evidence in relation to the proposed act

The Government party has provided:
·a statement of contentions;
·tengraph plans with topographical details;
·tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas;
·reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA);
·copies of the tenement applications;
·copies of the proposed endorsements and conditions of grants; and
·a tengraph quick appraisal for each tenement.
Government party documentation establishes the underlying land tenure of E57/889 includes:
·Pastoral Lease 3114/1031 (Black Hill) (at 99.8 per cent);
·Road Reserve (at less than 0.1 per cent); and
·Historical Lease 395/493 (at 43.6 per cent).
Government party documentation establishes the underlying tenure of E57/890 includes:
·Pastoral Lease 3114/1031 (Black Hill) (at 99.8 per cent);
·Road Reserve (at less than 0.1 per cent); and
·Historical Lease 395/494 (at 48 per cent).
Documentation establishes that E57/889 has previously been overlapped by three exploration licences, encroaching variously between 8.4 per cent and 80 per cent, and one miscellaneous licence granted in 2000 and surrendered in 2003, which overlapped 3.4 per cent. E57/890 has previously been overlapped by three exploration licences, encroaching variously between 28.7 per cent and 100 per cent, and seven mineral claims granted and surrendered in the 1970s.
The quick appraisal document shows that that the topographical features and infrastructure affected by E57/889 are a major road, a minor road, numerous tracks, fence line, rock outcrops and various minor watercourses. The topographical features and infrastructure affected by E57/890 are a minor road, two tracks, fence line, rock outcrops, a well, numerous cliff/breakaway/rockridge features and various minor watercourses.
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 either tenement. Tribunal mapping indicates that there are no Aboriginal communities located upon the area of the proposed licences.
A draft tenement Endorsement and Conditions Extract for the proposed licences are included in the Government party documentation indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]).
Additional conditions to be imposed on the proposed tenements require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6).
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 licences:

The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (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 also state (at 23) that it will impose the following condition (“the RSHA condition”) on the grant of the proposed tenements:
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. WAD 6064 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 endorsed by peak industry groups and the Yamatji Marlpa Aboriginal Corporation.

Native title party contentions and evidence

The native title party provided submissions in this matter on 4 February 2013. In relation to s 237(a), the native title party contends (at para 5) that the grant of the tenement is likely to interfere with the community or social activities of the Wutha people because it will interfere with their access to the land, impede activities such as hunting, gathering, extracting flora, the use of other resources, any other religious, ceremonial and other activities on the land, the continuation of oral traditions within the group.
In relation to s 237(b), the native title party contends (at para 6) that the grant of the tenement is likely to interfere directly with areas or sites of particular significance in accordance with their traditions because not all sites of particular significance to the Wutha people have been recorded and that a heritage protection survey is required to ensure there is no likely interference with sites. The Government party has not proposed such a condition. The native title party further submits (at para 6) that the provisions of the Aboriginal Heritage Act 1972 provide for a Ministerial discretion to permit interference with sites, the Government party has not proposed a condition requiring the written permission of the native title party prior to any such exercise of Ministerial discretion, nor a condition requiring the grantee party to enter a Wutha heritage agreement. Consequently, interference with sites of particular significance to the native title party are likely.
As to s 237(c), the native title party contend (at para 7) that the grant of the tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land. The native title party contend that unless arrangements for consultation and access are made by way of a heritage agreement, ‘it cannot be said with certainty’ that the grant of the tenement is not likely to involve major disturbance to the land, or create rights whose exercise is not likely to involve major disturbance to the land.
The native title party lodged the affidavit of Gaye Harris sworn 31 January 2013, made in the following terms:
I am a Wutha person.
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.
I make this affidavit in support of the Objector’s objections under s32 of the Native Title Act 1993 (Cth) before the Tribunal being No. WO12/361-362.
Save where indicated to the contrary I make this affidavit from facts within my own knowledge.
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.
I was one of the people who worked with Kymberley Russell as 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, there is a photo of me with June at photo 14 on page 11 of the report.
The area in and around the proposed tenements E57/889-890 (“the proposed tenement”) contains sites of our stories and Dreaming. There are also dreaming tracks of The Porcupine, The Mountain Devil, The Mallee Fowl, The Owl, The Woman, and the Seven Sisters nearby.
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.
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.
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.
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.
Some of the oral evidence that I give my (sic) need to be given in confidence.
The native title party also lodged the affidavit of June Ashwin (also known as June Harrington-Smith) sworn 4 February 2013, made in the following terms:
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”).
I make this affidavit in support of the Objector’s objections under s32of the Native Title Act 1993 (Cth) before the Tribunal being No. WO12/361-362.
I am authorised by the Objector to make this affidavit on their behalf, the contents of which they are in agreement.
Save where indicated to the contrary I make this affidavit from facts within my own knowledge.
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.

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”.
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.
Some of the area in the proposed tenement E57/889-890 (“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 for our people only.
The 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.
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.
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.
There may be sites within 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 annexure to the affidavit of Ms Ashwin is a copy of a Connection to Country by AX Cultures dated November 2012 (‘Connection to Country report’). The document states that it ‘is the intent of the author to provide a continuous connection to country report for the client Mrs June Harrington-Smith nee Ashwin’ (page 3). The report is a detailed document but contains little by way of specific evidence particular to the inquiry tenements E57/889 and E57/890. I note, for example, that pages 1-38 of the document traces Ms Ashwin’s genealogical history generally, while pages 39-105 contains a general chronology of Australia’s indigenous history traced from ancient times to the present.
Ms Harris is a senior member if the Wutha People. Ms Ashwin is one of the persons who comprise the applicant in the Wutha claim and a senior Wutha person. I accept that both deponents have authority to give evidence on behalf of the native title party.

Grantee party evidence

The grantee party submitted contentions on 11 February 2013, to the effect that the grantee had forwarded a signed Regional Standard Heritage Agreement (RSHA) for the relevant tenement to the native title party on 24 August 2011, and noted that this offer remains open (at paras 4-5). The proposed exploration activities are described as the usual activities associated with mineral exploration activity, 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 (at para 26). The grantee party indicates its awareness that the tenement does not accord rights of production or resource development, and that such measures would require more extensive consultation with the native title party (at para 27).

The grantee party states that it will comply with all legislative requirements including but not limited to the Aboriginal Heritage Act and the Mining Act, and all its subsidiary legislation (at para 30). The grantee party further notes that it has never been prosecuted under the Aboriginal Heritage Act, that its attitude to heritage protection and the steps it is prepared to take to minimise the likelihood of interference with sites should be taken into consideration (at paragraph 10-12), and that compliance with the conditions and endorsements for the tenement under the Mining Act is relevant to the question of whether the grant of the proposed licence is likely to interfere with sites of particular significance to the native title party (at paragraphs 19-24).

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 it 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 v Western Australia and Another (2001) 108 FCR 442 (‘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 of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
In this matter, the native title party has provided general contentions (as outlined above at [28]) regarding s 237(a) of the Act, mainly concerned with the grantee party’s potential interference with access to the land, and associated activities including hunting, gathering, extraction of flora and other resources, ceremonial activities and continuation of its oral storytelling traditions. The Government party contends (at para 61) that the native title party has provided only general and unspecific evidence regarding the frequency of these activities in the proposed areas. 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 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]).
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 para 8). She states that she goes hunting for kangaroo and bungarra, and emu, and picks wild berries, quandong, silky pear and seeds for grinding into flour (at para 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 para 9).
Ms Ashwin states in her affidavit (at para 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 para 10).
The evidence provided by the native title party in relation to its community and social activities in the proposed tenement areas is general and non-specific. The evidence of both Ms Harris and Ms Ashwin is that they conduct a range of activities within their own country including the tenement area on a regular basis. There is no specific reference in any of the evidence provided to any specific area within the proposed tenement in which any of those activities are conducted.
I accept, as outlined by the Government party (at para 62(b)), that the proposed tenement area is almost entirely covered by a pastoral lease, and this interest has extinguished any native title rights to control use of and access to the relevant land (if native title had not been previously extinguished). In any event, the carrying on of the community or social activities of the native title party has been subject to, or co-existent with, pastoral activity for a significant period of time.
In the circumstances, I am unable to conclude the grant of the proposed licences will interfere with social and community activities of the native title party on the proposed licence 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 in relation to 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 (that is, 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 sites within the proposed tenement. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the areas of the proposed licences 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.
Ms Harris states in her affidavit (at para 7) 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, which are ‘nearby’.
Ms Ashwin deposes in her affidavit that some of the area in the proposed tenement contains sites or the native title party’s stories and Dreaming (at para 8), and that there are dreaming tracks in the area. She notes that some of the sites mentioned in the Connection to Country report are Wingarra Soak, Wrungall Soak and Ularring (at para 7). I note that the Ularring site is referred to in the Connection to Country 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 report). However, neither Ularring or the other two mentioned are within the proposed tenement area and there is no evidence as to how, or if, they might be connected to the proposed tenement area. Ms Ashwin states in her affidavit that 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 (at para 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 para 12).
In my opinion there is insufficient evidence for the Tribunal to be satisfied that there are in fact any areas or sites including dreaming tracks which pass through the area of the proposed tenement on the basis of the evidence provided by either Ms Harris or Ms Ashwin. 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 Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]). I accept the native title party’s general contentions that there may be sites of significance to the native title party existing within the proposed licences. However, there is no evidence before me to disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of interference.
The references in Ms Ashwin’s Affidavit to Wingarra Soak, Wrungall Soak and Ularring do not suggest that they are within the area of the proposed tenement. Rather that they are important women’s sites within the area of the native title party’s claim. At paragraph 8, Ms Ashwin makes reference to the fact that some of the area in the proposed tenement contains sites or stories and dreaming. She also says ‘we also believe that rocks and hills that are created by or connected by spirits (sic)’. Again, none of this evidence suggests that there does in fact exist within the area of the proposed tenement or indeed even within its vicinity, areas of particular significance to the native title party. In relation to the connection to country report, which is annexure one to the affidavit of Ms Ashwin, while I can see the relevance of the first part of the report to the question of the connection of the members of the native title claimant group, and Ms Ashwin’s connection to the country under claim, in particular, I am at a loss to understand the relevance of those that part of the report from page 39 to the end.
As I have come to the conclusion that I am unable to be satisfied that there are areas of particular significance to the native title party within the proposed tenement area, it is not normally necessary for the Tribunal to address the question of the adequacy or otherwise of the regulatory regime. I nevertheless note that the Tribunal has often found that the site protective regime based on the AHA is sufficient to ensure that any interference to sites of particular significance is unlikely, however each matter should be considered on its own facts, see Butcher Cherel and Ors/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at 81-91. As outlined above at [45], the grantee party states that it is aware of its obligation under the Aboriginal Heritage Act and intends to conduct its work in a way which does not adversely impact on heritage sites.
The Government party also refers to the grantee party’s contentions in this respect, including the offer to enter into the RSHA (at para 20), noting that in general the RSHA provides, amongst other things, that the grantee party must 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. In these circumstances I am unable to conclude that the grant of the proposed licence is likely to interfere with any areas or sites of particular significance to the native title party on the proposed licence of the kind contemplated by s 237 (b) of the Act in this matter.

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 state (at para 7) that the grant of the proposed tenement 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 rights accorded to the grantee party by the grant of the proposed tenement will not have a significant impact on Aboriginal people who use the land, and account needs to be taken of the community life, customs, traditions and cultural concerns of the Wutha people’.
The native title party has not advanced its invocation of this limb of s 237 other than to, effectively, relate its contents. The premise of its argument assumes its conclusion. No evidence is adduced in support.
In these circumstances, I do not find that major disturbance to land and waters of the type contemplated by s 237(c) of the Act is likely to occur as a result of the grant of the proposed licences.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licences E57/889 and E57/890 to Kubwa Iron Ore Holdings Pty Ltd, is an act attracting the expedited procedure.

Daniel O’Dea
Member
9 May 2013