Ronald Crowe & Ors (Gnulli)/Western Australia/Golden Century Mining Limited - [2011] NNTTA 89

NATIONAL NATIVE TITLE TRIBUNAL

Ronald Crowe & Ors (Gnulli)/Western Australia/Golden Century Mining Limited, [2011] NNTTA 89 (26 May, 2011)

Applications No: WO10/628

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

Ronald Crowe & Ors on behalf of Gnulli

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The State of Western Australia

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Golden Century Mining Limited

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

Tribunal: Neville MacPherson

Place: Melbourne
Date: 26 May, 2011

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – gender restricted evidence – legal principles – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – expedited procedure does not apply.

Legislation: Native Title Act 1993 (Cth), s. 29, s. 151(2), s. 155, s. 162(2), s. 237

Aboriginal Heritage Act 1972 (WA), s. 5, s. 17, s. 18
Acts Interpretation Act 1901 (Cth), s. 25D
Mining Act 1978 (WA), s. 20(5), s. 63

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March, 2007)
Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL, NNTT WO01/179 and WO01/180, [2002] NNTTA 24 (8 March, 2002)
Lockyer & Ors/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925, [2006] NNTTA 133 (5 October, 2006)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June, 2006)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia [2008] FCAFC 23
Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL, NNTT WO01/486, [2002] NNTTA 43 (11 April 2002)
Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, NNTT WO07/806 and WO07/813, NNTTA 71 (6 June, 2008)

Silver v Northern Territory of Australia (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR
Walley v Western Australia (2002) 169 FLR 437

Representatives of the Ms Brooke Creemers/Ms Alissa Lovering, Yamatji Land and Sea
Native title party Council

Representative of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the
grantee party: Ms Sherry Hingston, Iron Mountain Mining Pty Ltd

REASONS FOR DETERMINATION

On 13 January, 2010, the State of Western Australia (‘the government party’) gave notice under s. 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1993 (‘the proposed licence’) to Golden Century Mining Limited (‘the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure.
The proposed licence is located 94 kilometres south-east of Coral Bay, in the Shires of Ashburton and Carnarvon, and comprises an area of 628.74 square kilometres.
The proposed licence is overlapped by the native title determination application of Gnulli (WC97/28, registered from 14 April, 1997) by 96.54 per cent.
On 13 May, 2010, Ronald Crowe and others, on behalf of Gnulli (WC97/28) (‘the native title party’), made an expedited procedure objection application to the Tribunal in respect of the proposed licence
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to parties to provide contentions and documents 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 disposal of the objection by consent.
The statement of contentions and evidence of the Government party was submitted on 4 October, 2010 and 12 October, 2010. The statement of contentions and evidence of the grantee party was submitted on 2 November, 2010, and the statement of contentions and evidence of the native title party on 17 January, 2011.
On submission of its contentions and supporting documents, the native title party requested that non disclosure directions apply to all native title party evidence. In particular, the native title party requested that the Affidavit of Clifton Lockyer be protected by directions stating that the evidence is gender restricted and only to be viewed by men. The native title party provided proposed directions.

On 2 February, 2011, Deputy President Sosso made the following directions, pursuant to s. 155, with respect to the affidavit of Clifton Lockyer:-
“…the affidavit of Clifton Lockyer sworn 4 March 2008 (“the restricted evidence”):
a)   shall be kept confidential to male members of the parties and any male legal practitioners engaged by the parties who:
i)    must not provide access to, or copies of, the restricted evidence to any other person; but
ii)   may communicate the detail of the content of the evidence to a male representative of the party only to the extent necessary for the purpose of taking instructions and/or to a potential male witness in these proceedings to the extent necessary for responding to the restricted evidence including, but not limited to, gathering evidence disputing the restricted evidence;
b)   the restricted evidence may only be used for the purpose of these proceedings (including any appeal or review proceedings);
c)   any representative of the parties or other persons to whom the restricted evidence is to be communicated must first be given a copy of these directions and agree in writing to be bound by the directions;
d)   a party must, if requested, promptly notify the native title party in writing of the names of the persons to whom the restricted evidence is provided or communicated;
e)   at the conclusion of the proceedings (including any appeal or review proceedings), all copies of the restricted evidence must be either:
i)    immediately delivered up to the native title party; or
ii)   be destroyed, in which case the destruction of the copies must be verified in a written document lodged with the Tribunal and copied to the other parties hereto;
f)    if any party utilises any of the restricted evidence in any document that party provides to the Tribunal or other parties in these proceedings, the party must ensure that the document is structured in such a way as to prevent non-male persons from unintentionally accessing the restricted evidence within that document;
g)   there be liberty to apply for further directions.
I was appointed by Deputy President Sumner as the Member to conduct the inquiry.
All parties have agreed that this matter can be determined ‘on the papers’ (i.e., without holding a further hearing). I am satisfied that the objection can be adequately determined in this way (s. 151(2) of the Act).

Similarity with previous determination

In a letter received as part of its submissions, the native title party states, “YMAC wishes to draw the Tribunal and other parties [sic] attention to inquiry matter WO07/806 [Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, NNTT WO07/806 and WO07/813, NNTTA 71 (6 June, 2008) (‘Crowe’)], tenement number E08/1758, determined in 2008. Tenements E08/1758 [the proposed licence the subject of the inquiry in Crowe] and E08/1993 [the proposed licence the subject of the matter at hand] are one and the same tenement. They cover the same area within the Gnulli claim.” Tribunal Overlap Analysis shows that E08/1758 is the same size as E08/1993 and that the two tenements entirely overlap each other. The Government party’s quick appraisal documentation shows E08/1758 to be a dead tenement that overlaps E08/1993 by 100%. The dead tenement was withdrawn on 24 October, 2008.
In relation to evidence provided, it states, at para [9] of the Crowe determination, that, “The native title parties also lodged with the Tribunal the affidavits of Clifton Lockyer, affirmed on 4 March, 2008, Gwen Peck, sworn on 12 February, 2008, and Maureen Patricia Dodd, sworn on 12 February, 2008.” These same affidavits have been provided to the Tribunal in the matter at hand. In addition to this evidence, the native title party has submitted the affidavit of Brooke Creemers, lawyer employed by the Yamatji Land and Sea Council, the body that represents the Gnulli People, sworn on 17 January, 2011. Ms Creemers states, “On sighting the map of exploration tenement E08/1993, the Gnulli advised me that they had already contested inquiry matter WO07/806 in relation to the Tenement Area. I reviewed the map which related to the WO07/806 inquiry matter which was for exploration tenement E08/1758....It appeared that the area of both tenements was the same. The Gnulli advised me that the evidence they had provided for WO07/806 was still applicable to the Tenement Area and instructed me to provide the same evidence in relation to WO10/628 as their contentions in relation to activities on the Tenement Area had not changed. The Gnulli instructed me to indicate to the Tribunal and other parties that the area of exploration tenement E08/1758 and E08/1993 are one and the same” (at paras [5] to [8]).
I accept, based on the evidence of the native title party and Tribunal Overlap Analysis:

that the proposed licence in question in this matter covers the same area as that in Crowe;
that the evidence of the native title party is substantially the same; and
that the factors to be considered in this matter are substantially the same as those examined in Crowe.

Directions about gender restricted evidence

On submission of its contentions and evidence, on 17 January, 2011, the native title party requested that the following directions be made in respect of the affidavit of Clifton Lockyer:

(a)the affidavit be kept confidential to male members of the parties, Tribunal Members and Tribunal staff. These people must not provide access to or copies of the evidence to any other person and may communicate the detail of the content of the evidence to a male representative of the party only to the extent necessary for the purpose of taking instructions;
(b)the evidence may only be used for the purpose of these proceedings;
(c)any representative of the parties or other persons to whom the evidence is to be communicated must agree in writing to be bound by the non-disclosure directions;
(d)a party must, if requested, promptly notify the native title party in writing of the name of the persons to whom the evidence is provided or communicated;
(e)any communications or documents produced which contain details or reference to the evidence provided in the affidavits must be kept confidential and restricted to male members of parties, Tribunal Members and Tribunal staff; and
(f)at the conclusion of the proceedings, all copies of the evidence must either be immediately delivered up to the native title party or be destroyed, in which case an affidavit must be filed and served verifying the destruction.

I adopt the comments and findings made by the Tribunal, in relation to gender restricted evidence, in Crowe, at paras [12] to [35]. I agree with the conclusion reached by the Tribunal in Crowe that, “irrespective of whether a gender-restricted direction has been made under s 155, the Tribunal is obliged in its determination to set out the findings of fact upon which inferences have been drawn and to identify the source of those factual findings” (at para [35]). This requires the Tribunal to “use its discretion to identify and set out in an appropriate form, the key material from which it has drawn inferences” (at para [35]). This means that the Tribunal may be required to discuss aspects of evidence that is subject to gender-restriction directions, in order to fulfil the requirement that the Tribunal set out the factual findings which are critical to its ultimate determination. This is what I will do in considering the three branches of s. 237; but only within the limitations and restrictions implied by the Act.

Other non-disclosure direction requests

On submission of its contentions and evidence, on 17 January, 2011, the native title party requested that the following directions be made in respect of the affidavits of Maureen Patricia Dodd and Gwen Peck:

(a) the affidavits are confidential due to culturally sensitive content and shall be kept confidential to members of the parties, Tribunal Members and Tribunal staff. These people must not provide access to or copies of the evidence to any other person and may communicate the detail of the content of the evidence to a representative of the party only to the extent necessary for the purpose of taking instructions.
(b) the evidence may only be used for the purpose of these proceedings;
(c) any representative of the parties or other persons to whom the evidence is to be communicated must first agree in writing to be bound by the non-disclosure directions;
(d)a party must, if requested, promptly notify the native title party in writing of the name of the persons to whom the evidence is provided or communicated;
(e) any communications or documents produced which contain details or reference to the evidence provided in the affidavits must be kept confidential and restricted to members of parties, Tribunal Members and Tribunal staff; and
(f) at the conclusion of the proceedings, all copies of the evidence must either be immediately delivered up to the native title party or be destroyed, in which case an affidavit must be filed and served verifying the destruction.

At a listing hearing before Deputy President Sosso on 20 January 2011, the Deputy President explained to the parties that the Tribunal is generally required to set out the evidence before it in full in determinations.
I adopt the comments and findings made by the Tribunal, in relation to non-disclosure directions, in Crowe, at paras [24] to [35]. I find that the directions requested by the native title party in respect of the affidavits of Maureen Patricia Dodd and Gwen Peck should not be imposed for several reasons (discussed at length in Crowe):

The Tribunal is required to keep documents submitted to it for the purpose of making a determination, until the proceeding is concluded, and the appeal period has expired, without an appeal being made. If an appeal to the Federal Court is made under s. 169, the Tribunal is required to send to the Court all documents before it in relation to the inquiry.
As per Moore J in Parker v Western Australia [2008] FCAFC 23 (Parker) at [7], “the Tribunal is obliged to set out the findings of fact it makes which lead to the determination of the matter covered by the inquiry...A statutory obligation to reveal fully the found facts upon which a decision is based is understandable given the significance of a decision that a future act attracts the expedited procedure.” Branson J, in Parker, observed that s. 162(2) has two principles purposes: “First, that a party dissatisfied with the determination can understand how the Tribunal arrived at its determination and, in particular, can form a view on whether the determination is lawfully made. Secondly, to facilitate review by the Court of the Tribunal’s determination should any party exercise its right to appeal...”
Section 25D of the Acts Interpretation Act 1901 (Cth), provides that, “Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”
The obligation imposed by s. 162(2) cannot be avoided because of issues relating to cultural or customary concerns.

Summary of the affidavit material

Mr Lockyer deposes to be a member of the Gnulli native title claim group, which is made up of Baiyungu and Ingaarda people. He states that he is an initiated Baiyungu man; that he is classed as a tribal elder; and that he has authority to speak for the area of Gnulli country intersected by the proposed licence.
Mr Lockyer gives evidence about the particular significance of Moogooloo Hill, as well as other sites, and the potential impact of exploration on sites.
Ms Dodd gives evidence that she is an Ingaarda woman because her father was an Ingaarda man, and her mother was Baiyungu. She says that the proposed licence is mostly located in Baiyungu country, but that she can speak for this area because it is her mother’s country and she has been authorised to speak by members of her family, including the last old mother, Mrs Bessie Lyndon. Ms Dodd gives evidence about the significance of Moogooloo Hill and that she is not allowed to go there because it is a “men only” site.
Ms Peck is one of the persons comprising the Applicant of the Gnulli native title party and gives evidence that she is a senior Baiyungu woman. She says that she has authority to speak for the area of the proposed licence on behalf of Mrs Bessie Lyndon. As with Ms Dodd, Ms Peck gives evidence about the significance of Moogooloo Hill and that females are not allowed to go there.
I am satisfied that each of the deponents has the requisite traditional authority to give evidence about the matters outlined in their affidavits and accordingly can be given due evidentiary weight.

Legal principles

Section 237 of the Act provides:
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) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at 439-449, paras [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 449-454, paras [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 453-454, para [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 Mines and Petroleum (‘DMP’) [formerly Department of Industry and Resources (‘DoIR’)]. Standard condition 4 is also to be read with s 63AA of the Mining Act which requires approval by the DMP 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, kept under the Aboriginal Heritage Act 1972 (WA) (‘AHA’); advise whether the proposal intersects the boundary of such 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) (‘Maitland Parker’), at paras [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court 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; (2008) 167 FCR 340). I also adopt the findings of the Tribunal in Silver v Northern Territory of Australia (2002) 169 FLR 1.

Evidence in relation to the proposed act

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

PA67 Special Prospecting Authority (38 per cent overlap);
PA67 Geothermal Exploration Permit (6.4 per cent overlap);
Mia Mia Pastoral Lease, 3114/728 (38.7 per cent overlap);
Winning Pastoral Lease, 3114/1030 (15.7 per cent overlap);
Minilya Pastoral Lease, 3114/420 (11.6 per cent overlap);
Middalya Pastoral Lease, 3114/656 (5.4 per cent overlap);
Wandagee Pastoral Lease, I0801/126 (28.5 per cent overlap); and
Road reserves 8397 and 9475 (both overlap by less than 1 per cent).

The proposed licence is 99.9 per cent overlapped by pastoral leasehold.

According to Tribunal Geospatial mapping, there are no Aboriginal communities located on the proposed licence, or in the vicinity.
DIA documentation provided by the Government party reveals six sites, registered pursuant to the AHA, which either overlap, or are located within, the proposed licence:
- Moogooloo Well (site ID 6665 - grinding patches/rockshelter grooves, permanent register, open access, no restriction);
- Gooch Range (site ID 6667 - painting, permanent register, open access, no restriction);
- Wandagee Station 5 (site ID 7468 - artefacts/scatter, insufficient information, open access, no restriction);
- Coolanberry Tank 1 (site ID 7620 - artefacts/scatter, permanent register, open access, no restriction);
- Gooch Range 21 (site ID 7745 - artefacts/scatter, insufficient information, open access, no restriction); and
- Gooch Range 22 (site ID 7746 – artefacts/scatter, insufficient information, open access, no restriction).
The map reveals that there are also numerous registered sites in close proximity to the proposed licence. There are more than twenty registered sites within a twenty kilometre radius of the proposed licence.
According to the quick appraisal documentation of the Government party, there has been previous exploration activity in the area between 1959 and 2008. There are twenty eight dead tenements which overlap the proposed licence by between less than 0.1 per cent and 100 per cent. Of these, five were surrendered, nine were withdrawn and fourteen were cancelled.
Quick appraisal documentation shows that the proposed licence is intersected by some forty eight tracks, four tanks, six water pipelines, thirteen wells, two earth dams, two major non-perennial watercourses and three soaks.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licenses in Western Australia (see Maitland Parker, at para [21] - conditions 1-4). Additional conditions require that the pastoral lessee be notified of the grant of the licence and of certain exploration activities (refer to conditions 5-6).

Two further conditions will be imposed:

·No interference with Geodetic Survey Station SSM-Winning Pool 40, SSM-NMF577 and SSM-A51 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
·Mining on a strip of land 20 metres wide with any pipeline as the centreline being confined to below of depth of 31 metres from the natural surface and no mining material being deposited upon such strip and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.

According to the contentions of the Government party, a further condition (‘the proposed condition’) will also be placed on the grant of the tenement:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Gnulli, the applicants in Federal Court application no. WAD6161 of 1998 (WC97/28), such request being sent by pre-paid post to reach the Licensee’s address c/o Iron Mountain Mining, 231 Adelaide Terrace, Perth WA 6000 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Gnulli the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.

Community or social activities (s. 237 (a))

Under s. 237(b), the Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the 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 chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR, 442, at 449-450, para [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith, at 451, para [26]). The assessment is also contextual, taking into 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 451-452, para [27]).
The statement of contentions of the Government party, at para 4 (b), refers to conditions imposed on conducting exploration (and other) activity on pastoral leasehold, pursuant to s. 20 (5) of the Mining Act 1978 (WA). Unless the written consent of the occupier is obtained, or the warden by order otherwise directs, the holder of a tenement is not entitled to explore or otherwise interfere with any Crown land (among other activities) that is:
- under crop, or which is situated within 100 metres thereof;
- used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
- situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
- the site of or situated within 100 metres of any cemetery or burial ground;
- land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 (WA) which is the site of, or situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act including s. 63, the conditions to be imposed on the exploration licence and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of the community or social activities of the native title party in relation to the area of land concerned.
There is little evidence before the Tribunal on the issue of community or social activities of the native title party on, or adjacent to, the proposed licence. The statement of contentions of the native title party focuses on interference with sites of particular significance, and makes no reference to community or social activities. The native title party does not specifically contend that the grant of the proposed licence will be likely to result in direct interference with the community or social activities of the native title party.
Mr Lockyer deposes that his family moves to “venues” all around the area of the proposed licence, which contains many important sites and a variety of totems. He says that he goes to this area when “called out” and on holidays. Mr Lockyer says that during 2007 he spent three months on country, and that he surveys and monitors the area for government departments. Certain locations on and near the proposed licence are sacred, and are restricted from women and children; access is limited to initiated men.
Neither Ms Dodd nor Ms Peck give evidence about any community or social activities on or in the vicinity of the proposed licence.
I follow the reasoning adopted by the Tribunal in Crowe, at para [67]. The uncontested material before the Tribunal establishes that:
- There are no Aboriginal communities on, or in the vicinity of, the proposed licence.
- The proposed licence comprises an area of approximately 628 square kilometres. Having regard to the large area of the proposed licence and the scant information about the native title party accessing the area for community or social activities, it is unlikely that there would be a significant interaction between the activities of the grantee party and the community and social activities of the native title party.
- There is very little evidence of members of the native title party accessing the area for social or community activities.
- The native title party has not contended that the grant of the proposed licence will be likely to directly interfere with the carrying on of community or social activities.
- The proposed licence is almost entirely overlapped by pastoral leasehold. The Tribunal is able to assess the impact of the grant of the proposed licence on community or social activities with regard to existing limits on those activities, in particular, whether the land and waters in question are subject to pastoral leases Lockyer & Ors/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925, [2006] NNTTA 133 (5 October, 2006) at para [45]. Section 44 H has the effect that lawful activities conducted in accordance with a pastoral lease will prevail over the exercise of any native title rights and interests. There is no evidence before the Tribunal that pastoral activities have had any impact on community or social activities.
- Exploration activity has occurred on the proposed licence and the areas surrounding it. There is no evidence that this exploration activity has interfered with the community or social activities of the native title party.
- According to the statement of contentions of the grantee party, “It is Golden Century’s priority to ensure the conservation and protection of heritage sites and to establish an amicable working relationship with the Native Title Claimant parties affected...” The grantee party believes that this can be achieved through the execution of a RSHA (which it is willing to agree to), together with the relevant conditions to be imposed on the grant of the licence, guidelines set by the DMP, as well as legislation and regulations. The grantee party states that it understands the restrictions and provisions imposed by the AHA, the Mining Act, Native Title Amendment Act 1998 (Cth) and other Acts and regulations referred to in the State’s contentions. The grantee party gives evidence about its intentions. It states that initial exploration on the proposed licence is likely to involve:
The grantee party states that it expects to visit the proposed licence 2-3 times during the first year of the grant and that the first stage of exploration is unlikely to cause any ground disturbance. The grantee party says that if a drilling programme is thought necessary, the native title party will be consulted.
I am of the opinion that the evidence is not sufficient to establish that any community or social activities of the native title party are carried out on the proposed licence, or in the vicinity, within the meaning of the Act. No evidence has been presented which details what activities are carried out on the area, how frequently these occur, or who is involved. There are no Aboriginal communities on or in the vicinity of the proposed licence and the area is almost entirely covered by pastoral leasehold. The grantee party has provided evidence of its intentions for exploration activity and, in my opinion, this is not likely to impact on community or social activities because the activity is not going to be ground disturbing (and if ground disturbing activity is to be carried out the native title party will be consulted first). Taking all of the above factors into account, I find that the grant of the tenement is not likely to directly interfere with the exercise of the community or social activities of the native title party.

Sites of particular significance (s. 237(b))

The issue under the provision is that the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (special or more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows that there are six registered sites within the proposed licence area. There may be more sites or areas of particular significance to the native title party on the proposed licence, or in the vicinity, because, the Register does not purport to be a record of all Aboriginal sites in Western Australia. The Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on s. 5, s. 17 and s. 18 of the AHA, as well as the additional conditions and endorsements, and that the grantee has offered the native title party a RSHA, to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal – recently, in Maitland Parker, at paras [31]-[38] and [40]-[41]. While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March, 2007), (‘Butcher Cherel’), at paras [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance which might be found to exist.
I adopt the approach taken by the Tribunal, in respect of this arm of s. 237, in Crowe.
The bulk of the native title party evidence and contentions is directed towards s. 237 (b).
Taking into account that the affidavit material is culturally sensitive, I will summarise aspects of the evidence, relevant in making a predictive assessment, pursuant to s. 237 (b).
The primary evidence is that of Mr Lockyer. Mr Lockyer is an initiated Baiyungu man. He states that he was initiated 18 or 19 years ago, and, as an initiated man, he learned the knowledge of country and is able to access land and waters where uninitiated people are forbidden to go. Mr Lockyer gives evidence about the significance of Moogooloo Hill which, with two other named places, is a site where white pastoralists allegedly killed Aboriginal people. Moogooloo Hill is a very important place for tribal men; women, children, uninitiated men and non-indigenous people are not able to go there.
Mr Lockyer gives evidence that there are in the order of three hundred other important sites in the area of the proposed licence, including rock art sites, burial grounds, ceremonial grounds, initiation grounds, mythological sites, totems and camping grounds. There is said to be a story for every site, and that the subject area is very significant because there are so many stories at all of the sites. Disturbance of the sites will result in the descendants of the traditional owners becoming sick and possibly dying.
Mr Lockyer gives evidence that the laying of the Alinta Gas pipeline resulted in the desecration of a number of sites, with the use of bulldozers scattering artefacts.
Apart from Moogooloo Hill, Mr Lockyer does not name or identify any of the important sites. He does provide assistance in describing the sites in terms of their class (eg., burial grounds, etc), and he provides useful information about the importance of the sites according to traditional laws and customs. The two other named massacre sites may or may not be located within the proposed licence.
Both Ms Peck and Ms Dodd give evidence that there are significant sites within the area of the proposed licence, including Moogooloo Hill, which is a massacre site. They both say that Moogooloo Hill can only be visited by initiated male owners of the land, or men accompanied by initiated male traditional owners. If uninitiated people visit Moogooloo Hill without being accompanied by an initiated traditional owner they will get sick and possibly die. Such a person would need to be treated by an initiated male performing a named custom. Both Ms Peck and Ms Dodd give evidence that, as women, they are not allowed to know more about Moogooloo Hill than its sacredness, the restrictions placed on persons visiting it and the consequences of breaching the laws and customs relating to that site. The evidence of Ms Peck and Ms Dodd supports and affirms the evidence given by Mr Lockyer.
The native title party makes the following points in its statement of contentions:
- The proposed licence is an area that is site rich, includes a site of particular significance and is located in a broader area of particular significance to the native title party (at para [12]).
- Where an area is site rich, the Tribunal has found that the AHA may be inadequate in providing the necessary protection without agreement between the parties on a methodology for site avoidance, para [13]. In support of this point, the native title party cites Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Hampton Hill Mining NL, NNTT WO01/486, [2002] NNTTA 43 (11 April 2002) (at para [22]) and Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL, NNTT WO01/179 and WO01/180, [2002] NNTTA 24 (8 March, 2002) (at para [51]).
- Where the proposed licence is demonstrated to be site rich, it is incumbent upon the grantee party to provide evidence to show the Tribunal that interference with sites, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas (at para [14]).
- The mere existence of a regime for conducting Aboriginal Heritage Surveys will not be enough to ensure that sites of particular significance will not be subject to interference. The native title party states that, “The nature of the sites is such that even non-ground disturbing work may cause interference with the sites to a level that is distressing to the Native Title Party and culturally inappropriate to a degree that would constitute interference for the purposes of s 237 (b)” (at para [15]).
- Sites or areas of particular significance not located within the proposed licence may be impacted upon by the grant of the proposed licence (at para [18]). In support of this point, the native title party cites Re Smith (1995) 128 FLR 300, as well as Tribunal decisions.
- The provisions of the RSHA do not provide the level of protection required for this area of sites of particular significance (at para [19]). The RSHA allows entry onto the proposed licence to carry out low impact activity without the need for a heritage survey. The native title party states that, “such activity is likely to cause interference with sites, given the particular sensitive nature of the sites located on and around the tenement.”
- The protection afforded by s. 17 of the AHA is not sufficient to protect the sites on and around the proposed licence (at paras [20]-[28]).
- The guidelines produced by the DMP are advisory only and are not adequate to protect native title rights and interests (at para [30]).
- Particulars of significance, and interference with, Moogooloo Hill:
- The proposed licence covers part of the Gooch Range which, as it includes Moogooloo Hill, is an area of particular significance (at para [37]).
- Many sites are not registered and some of the sites registered as non-restricted are actually male only areas (at para [39]).
- The traditional owners believe that, where there are sacred sites or burials, there are spirits who protect the area. These places should never be disturbed. Disturbing such sites will cause incurable sickness to both the disturbing parties and the traditional owners (at paras [40] and [41]).

The Tribunal Geospatial map confirms that Moogooloo Hill overlaps the proposed licence. It also shows that there are five other registered sites within, or that overlap, the proposed licence and numerous sites located around it.
Based on the evidence of the native title party and the Tribunal map, I accept that the proposed licence comprises, and is located within, an area that is site rich.
I accept that there are sites within and around the proposed licence which are of particular significance to the native title party, especially Moogooloo Hill. I make this finding based on the following evidence of the native title party:
- That Moogooloo Hill is a massacre site where the bones of the ancestors of members of the native title party are resting.
- That Moogooloo Hill can only be accessed by initiated men, or non-indigenous men accompanied by an initiated male traditional owner.
- That Moogooloo Hill and other sites are interfered with if the wrong person is present at them, without being accompanied by an initiated male traditional owner, for some sites, or a traditional owner, for others.
- That spirits reside at the sites of particular significance.
- The consequences of interference with sites of particular significance, being incurable sickness and possibly death for the person who interferes with the site and for members of the native title party.
I must now consider whether the protective provisions and procedures of the AHA, and any other protective arrangements that may be relevant, render it unlikely that there will be interference with the areas or sites of particular significance. It follows from the predictive assessment approach, which must be followed, that the intentions of the grantee party are relevant (Maitland Parker, at para [41], and cases cited therein). In Butcher Cherel, at paras [81]-[91], various determinations, in which the protective provisions of the AHA were considered in light of the intentions of the grantee party, were canvassed by the Tribunal. In that matter, the Tribunal found that the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party, including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
Here, the grantee party has said that it wants to ensure the conservation and protection of heritage sites and establish an amicable working relationship with the native title party. It says that it understands its obligations and will abide by the relevant legislation and regulations. The grantee party is willing to agree to the RSHA and does not intend to carry out ground disturbing activity without first consulting the native title party.
In Crowe, in reference to the affidavit of Mr Lockyer, the Tribunal states, “It speaks quite eloquently and directly of the deep spiritual importance of the land and waters comprising the proposed tenement...He paints a picture of country which is rich in both physical and spiritual manifestations of traditional laws, customs and life in general” (at paras [95] and [96]). At para [99] it is stated, “The primary evidence presented to the Tribunal suggests that the whole fabric of the country on and immediately adjacent to the proposed tenement is imbued with pervasive spirituality such that unauthorised entry on the relevant land and waters would be likely to result in interference within the meaning of paragraph 237 (b).” I agree with these statements and follow the reasoning in Crowe at paragraphs [100] and [101].
I am of the opinion that the protective regime of the Government party will not be sufficient to prevent a real chance or risk of interference with sites of particular significance to the native title party in this instance. Given the nature and extent of the sites which have been identified, and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s. 31 of the Act take place between the parties. While the grantee party has stated its willingness to develop a relationship with the native title party and follow the relevant legislation and regulations and has also been put on notice that there may be sites on or around the proposed licence which are not registered, I am of the opinion that the large number and deep spiritual significance of these areas makes it essential that these sites be protected through negotiation and agreement between the native title party and grantee party.

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

No findings in relation to this arm of s. 237 are necessary, as a determination that the expedited procedure is not attracted is justified by my findings in relation to s. 237(b).

Determination

The determination of the Tribunal is that the grant of exploration licence E08/1993 to Golden Century Mining is not an act attracting the expedited procedure.

Neville MacPherson
Member