The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd - [2006] NNTTA 74

NATIONAL NATIVE TITLE TRIBUNAL

The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, [2006] NNTTA 74 (13 June 2006)

Application Nos: WO04/315 and WO05/48

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation (formerly Ben Ward and others on behalf of the Miriuwung Gajerrong Native Title Claimants (WC94/2)) (native title party)

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The State of Western Australia (Government party)

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Seaward Holdings Pty Ltd (grantee party)

WO04/315 (E80/3253) – DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

WO05/48 (E80/3359) – DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Hon C J Sumner, Deputy President

Place: Perth
Date: 13 June 2006

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance –whether acts likely to cause major disturbance to land or waters – community or social activities must be a manifestation of native title rights and interests – business activities are not community or social activities – native title holders in s 237 includes registered native title claimants – ‘land or waters concerned’ in s 237 comprises area of the proposed licence covered by a registered claim or determination of native title – relevance of s 237 interference or disturbance outside proposed licence area and outside registered claim or determination area – need for nexus between s 237 interference or disturbance and ‘land and waters concerned’.

Words & Phrases: ‘in relation to’
‘land or waters concerned’

Legislation: Native Title Act 1993 (Cth), ss 25, 29, 30, 31, 32, 35, 38, 56, 75, 151, 193, 211, 224, 227,233, 237, 253

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 19
Mining Act 1978 (WA), ss 20(5), 63

Cases:Anaconda Nickel Ltd v Western Australia [2000] NNTTA 366; (2000) 165 FLR 116
Andrews and Others v Northern Territory of Australia and Another [2002] NNTTA 170; (2002) 170 FLR 138
Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO2/451, [2004] NNTTA 31 (7 May 2004), Mr Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Mineralogy Pty Ltd v National Native Title Tribunal and Ors, [1997] FCA 1404; (1997) 150 ALR 467
Murray v The Registrar of the National Native Title Tribunal [2002] FCA 1598
PMT Partners Pty Limited(In Liquidation) v Australia National Parks and Wildlife Service (1995) 184 CLR 301
Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn QC
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v CRA Exploration Pty Ltd [1996] NNTTA 32 ;(1996) 133 FLR 251
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
The State of Western Australia v RC Bropho for and on behalf of the Swan River and Swan Valley Nyungah Community and ors [1996] 992 FCA 1; (1997) 2 AILR 262
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Yanner v Eaton (2000) 201 CLR 351

Representatives of the Ms Sonya Kilkenny, Kimberley Land Council
native title party: Mr James Tapueluelu, Kimberley Land Council

Representative of the
grantee party: Mr Matthew Hogan, Seaward Holdings Pty Ltd

Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources

Solicitor for the
Government party: Mr Trevor Creweel, State Solicitor’s Office

REASONS FOR DETERMINATION

On 11 August 2004 and 3 November 2004, the Government party respectively gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licences E80/3253 and E80/3359 (‘the proposed licences’) to Seaward Holdings Pty Ltd (‘the grantee party’) and included in each notice was a statement that it considered that the grants attracted the expedited procedure (that is, are ones which can be done without the normal negotiations required by s 31 of the Act). The proposed licence areas adjoin each other with E80/3359 being adjacent to the south western corner of E80/3253.
On 4 November 2004 (WO04/315 – E80/3253) and 14 February 2005 (WO05/48 – E80/3359) Ben Ward and others, registered Native Title Claimant on behalf of the Miriuwung Gajerrong Native Title Claimants (WC94/2 registered as from 26 May 1994) (who were the native title party at the time) lodged with the Tribunal objections to the statement that the grant of the proposed licences attracted the expedited procedure. The native title party at the time the objection was lodged comprised:

Ben Ward, John Toby, Jimmy Ward (deceased), Ronnie Carlton, Jeff Janama (deceased), Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Joe Lissadell (deceased), Chocolate Thomas and Peter Newry on behalf of the Miriuwung Gajerrong People.

The area, location and extent to which the proposed licence areas were overlapped by the native title party’s determination application and are now overlapped by a determination of native title are as follows:

E80/3253 - 229.67 square kilometres, 78 kilometres south westerly of Kununurra in the Shire of Wyndham-East Kimberley, 6.36 per cent overlap; and
E80/3359 – 32.78 square kilometres, 94 kilometres south westerly of Kununurra in the Shire of Wyndham-East Kimberley, 63.21 per cent overlap.

The overlap of E80/3253 with the Miriuwung Gajerrong native title determination area is in the southern part of the tenement which extends approximately 30 kilometres in a north/south direction.

A determination was made by the Federal Court on 9 December 2003 that the Miriuwung Gajerrong Native Title Claimants were the holders of native title in the area of the determination application over areas which correspond with parts of the registered claim. Determination WD03/2, a determination by consent that native title does not exist over certain parcels of land, was placed on the National Native Title Register on 19 May 2004 and WD03/3, a determination by consent that native title does exist over certain parcels of land, including some that overlap the proposed licences, on 21 May 2004. On 21 July 2005 the Federal Court determined ‘The Miriuwung and Gajerrong #1 (Native Title Prescribed Body Corporate) Aboriginal Corporation’ to be the prescribed body corporate in relation to the native title determination. On 31 August 2005, the Prescribed Body Corporate was registered on the National Native Title Register and became a registered native title body corporate and the ‘native title party’ in these proceedings (ss 30(1)(c), 253 NTA).
In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate an agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. No agreement has been reached despite several amendments to directions made by consent to allow further time for negotiations.
The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party. All parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way in accordance with s 151(2) of the Act.

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

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

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]-[38], [40]-[41].

Evidence in relation to the proposed act

Government party documentation establishes the underlying land tenure of the two proposed licence areas to be as follows:

E80/3253 (WO04/315)

Aboriginal Heritage (Protected) Areas AHA/58 - 61 and AHA/63 – variously between 0.1 per cent and 0.7 per cent;
Rain Forest Area – less than 0.1 per cent;
Pastoral leases owned by the Aboriginal Lands Trust – Doon Doon and Glen Hill - 75.6 per cent and 0.4 per cent respectively;
Unallocated Crown land – 6.0 per cent; and
General Lease 1154304 (grazing) –18.1 per cent.

One Historical Lease is also said to overlap the subject area by 6.0%, however this appears to overlay tenure referred to above as do areas vested in the Department of Environment (Ord River 63.7 per cent and Catchment Area (Ord River) 32.4 per cent) and Conservation and Land Management(PCP 152 6.0 per cent) for environmental management purposes.

E80/3359 (WO05/48)

Aboriginal Heritage (Protected) Areas AHA/57 (0.4 per cent) and AHA/70 (0.2 per cent);
Rain Forest Area – less than 0.1 per cent;
Pastoral Lease owned by Aboriginal Lands Trust Lease – Glen Hill – 63.2 per cent;
General Lease (grazing) –36.8 per cent.

The proposed licence also lies wholly within the Department of Environment vested Ord River management area.

Documents provided by the Department of Industry and Resources (‘DoIR’) establish the Aboriginal communities of Woolah and Glen Hill to be in the vicinity of the proposed licences. Woolah is approximately nine kilometres west and approximately three kilometres south west of E80/3253. The Glen Hill community (also known as Mandangala) lies within E80/3359.
Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and the native title party also reveals the following registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) overlapping the subject areas:

E80/3253 (WO04/315)

Site ID: 12444 – artefacts/scatter (Permanent Register, Open Access, No restrictions);
Site ID: 12445 – artefacts/scatter (Interim Register, Open Access, No restrictions);
Site ID: 12543 – artefacts/scatter (Permanent Register, Open Access, No restrictions);
Site ID: 13111 – Ngayirriyirri mythological (Permanent Register, Open Access, No restrictions);
Site ID: 13112 – Windjiwalawalrm mythological (Permanent Register, Closed Access, No restriction);
Site ID: 13113 – Bunbalalaawany mythological (Permanent Register, Closed Access, No restriction);
Site ID: 13121 – Wild Dog Spring mythological (Permanent Register, Closed Access, No restriction);
Site ID: 13134 – Diwirdjim mythological (Permanent Register, Closed Access, No restriction);
Site ID: 13973 – Mulungkol named place and water source (Interim Register, Open Access, No restrictions);
Site ID: 13999 – Ngaierim mythological (Permanent Register, Closed Access, No restrictions, Protected Area 58);
Site ID: 14009 – Kungkalla mythological (Permanent Register, Closed Access, No restriction);
Site ID: 14016 – Yelarnguning mythological (Permanent Register, Closed Access, No restriction);
Site ID: 14018 – Kunumburin mythological (Stored Data, Open Access, No restrictions);
Site ID: 14033 – Spring mythological/water source (Permanent Register, Closed Access, No restrictions);
Site ID: 14034 – Tjimanum mythological (Permanent Register, Closed Access, No restrictions, Protected Area 59);
Site ID: 14035 – Demelaba 1 & 2 mythological, painting, artefacts/scatter (Permanent Register, Closed Access, No restrictions, Protected Areas 60 and 61);
Site ID: 14036 – Mikati Spring mythological (Permanent Register, Closed Access, No restrictions ); and
Site ID: 14037 – Windirrulawula/Manaba mythological (Permanent Register, Closed Access, No restrictions, Protected Area 63).

E80/3359 (WO05/48)

Site ID: 14014 – Kultjing/Dumbulunung mythological (Permanent Register, Closed Access, No restrictions, Protected Area 57);
Site ID: 14015 – Tumbululing mythological, painting (Permanent Register, Closed Access, No restrictions, Protected Area 57);
Site ID: 14022 – Mandingala mythological (Permanent Register, Open Access, No restrictions);
Site ID:14035 – Demelaba 1 & 2 mythological, painting, artefacts/scatter (Permanent Register, Closed Access, No restrictions, Protected Areas 60 and 61); and
Site ID: 14038 – Dungurim/Karim mythological (Permanent Register, Closed Access, No restrictions, Protected Area 70).

DoIR Quick Appraisal documentation indicates that, as of 7 June 2005, one active exploration licence and one active amalgamation application encroach upon the proposed licences area. Further it is also apparent from the number of ‘dead’ mining and exploration titles (active between 1986 and 2004) that much of the subject land and surrounding areas have been subject to exploration and mining activity and that there is continued interest in the area. Three ‘dead’ exploration licences have been subject to previous objections by the Miriuwung Gajerrong native title party, all of which were resolved by objection withdrawal following agreement.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see WO05/753 – Maitland Parker at [21] Conditions 1-4). The following additional conditions (common to both grants) will be imposed.

To provide for notification to the pastoral lessee, of the grant of the licences and of certain exploration activities.
No mining to be carried out that will pollute or unduly interfere with the natural water courses.
To preserve rights of access to Water and Rivers Commission personnel.
Further conditions concerning pollution of or interference with natural water courses as determined by the Minister for State Development.
No interference with certain Geodetic Survey Stations and mining within 15 metres of them being confined to below a depth of 15 metres from the natural surface.

The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed common to both grants.

The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and Regulations and the Rights in Water and Irrigation Act 1914 and Regulations.

With respect to E80/3253 there will be detailed conditions dealing with protection of the Durham River Catchment Area including requirements that:

all hazardous chemicals to be stored and handled in accordance with Water and Rivers Commission guidelines; and
active measures be taken to ensure water quality is maintained in the Dunham River catchment, including obtaining permission for activities that fall within designated buffer zones around public drinking water sources and adhering to relevant Water and Rivers Commission guidelines.

There will also be detailed conditions dealing with a proposed Conservation Park including requirements for environmental hygiene procedures to be put in place to limit the spread of soil borne diseases and a detailed environmental impact program for the protection of vegetation including the need for the State Mining Engineer to consult with the Department of Conservation and Land Management and Department of Environmental Protection.
With respect to E80/3253 there are also additional endorsements:

drawing the licensee’s attention to the Water and Rivers Conservation Act 1995 and the Country Areas Water Supply Act 1947; and
advising the licensee to contact the Department of Conservation and Land Management on the management requirements for rainforest areas;
excluding land subject to prior exploration licences from the grant, unless the tenements expire or are surrendered; and
excluding land subject to declaration as a protected area under s 19 of the Aboriginal Heritage Act 1972 (WA) from the grant.

The native title party has lodged three affidavits in support of its application; Evelyn Hall (‘EH Affidavit’), affirmed 28 October 2005; George Dixon, affirmed 1 December 2005 (‘GB affidavit’); and Ted Robert Hall, affirmed 2 December 2005 (TH affidavit’). Contained within each affidavit is evidence relating to both proposed licences.
None of these persons were named as part of the applicant and registered native title claimant prior to the determination of native title in 2003, although Evelyn Hall says that she was an applicant (presumably at an earlier time). However, each of the deponents has provided material within their affidavit which goes to establishing their authority to speak on behalf of the native title holding group. In all cases the deponents confirm that they are Miriuwung Gajerrong native title holders and that each has the right to speak for the country encompassed by the proposed licences through responsibilities inherited from their grand parents. On the basis of the statements contained in the affidavits, which are uncontested, I am satisfied that each of the deponents has the requisite authority to speak on behalf of the native title party and properly reflect the traditions and knowledge of the native title holders concerning the area of the proposed exploration licences.
Ms Hall’s affidavit is made in the following terms:

Affidavit of Evelyn Hall

‘I, EVELYN HALL, pensioner, of 29 Grevillea Street, Kununurra and Mandangala Community in the State of Western Australia, solemnly and sincerely declare and affirm that:
1.My name is Evelyn Hall. I was born on 16^th of August 1942 on Cow Creek Station, which is now part of Doon Doon Station.
2.My bush name is Nyerrmarria which is the name of my dreaming on Carlton Hill. I got that name from Daisy Carlton, my big sister.
3.I was a named applicant in the Miriuwung Gajerrong Native Title Determination Application.
4.I am a Traditional Owner for the country known as Mandangala. Native Title exists over my land. My people and I have exclusive possession over Mandangala. This is my grandfather’s, mother’s and uncle’s country and I belong to that country through them.
5.I belong to the Miriuwung tribe. I grew up with Kija mob and can speak Kija. My father’s side is Woolah.
6.I know the area where Seaward Holdings (the Grantee/mining company) has applied for exploration licences, E80/3253 sad E80/3359.
7.My community is located in the southern area of the northern tenement.
8.Wild Dog Spring is also in the area that the mining company wants to explore. It belongs to the Doon Doon mob. Una Morgan mob. Our Dreaming runs through that area. We still talk for that area, mainly for that Dreaming story for that Jaliwarl Ngarrangarni (or Barramundi Dreaming). Our Law is our Ten Commandments. We believe in this word. It is our truth.
9.In the northern area of the exploration area there sits a white rock. It relates to the Dreamtime. In the Dreamtime, blackfella were a crane and tried to spear a barramundi. He did get him but the barramundi - he lost a scale at Banga – it is the white rock that sits in that northern area of the exploration area.
10.I believe that if the exploration licences were granted they would interfere directly with the carrying of on of my community and social activities. They would also interfere directly with areas and sites of particular and very important significance for me and my people.

INTERFERENCE WITH COMMUNITY AND SOCIAL LIFE
11.The southern area of the northern tenement of Seaward Holdings is where we have our community, at Wirndirrwulawula (Barlow Spring). We are setting up our community out there now. We are going to move our tourism and art business to that place. We already have a shed there. Our community will be under Warramign which is my uncle’s name and is the corporation for our family. We look after that area.
12.We still collect bush tucker from areas that the mining company wants to look around on. Things such as warnmala (yam), konkerberry, darlu (plum), ngarrayu which is like wheat, that we collect in a coolamum and grind to make a flour, barrdigi which is a tree with a nut which when you break it contains one or more peanuts inside, marrung which is that sugarbag from the tree and gairring which is the sugarbag from the ground. Goorja is the name for a tree that we get bush tucker from that is like a yam. The fluff from inside dried up fruit on this tree (not when it is white or green, but going brown), we spin out and make it like wool. We can then use that thread for a number of things.
13.We also use that young boab tree. We pull it up and use the roots. We get them from the sand ground and they are soft and sweet, not like the ones from the rocky ground.
14.We also hunt for jarring (kangaroo), and dawarr (goanna). We catch that garrwirring (black bream). Inside the area that Seaward Holdings want to look around on is our hunting ground.
15.This area where this mining company wants to look around is our hunting and fishing grounds as well as the area where we collect all our bush tucker. These are very important food sources for our mob.
16.It is important that the mining company know about this and talk to us first – not just go onto our land and start looking around.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
17.There are many important places for me and my people on the land that the mining company wants to explore.
18.I don’t want anything to happen at that Billy Goat Yard area. We have cave paintings from our old people. My old grandmother is buried there next to that cave painting. We call this area Kirlimburru – which is the tree that we make spear out of.
19.At Wirndirrwulawula (Barlow Spring) there is a cave where my old people used to store spearheads, grindstones and stone axes in there. My old people used to live in this area. This area is a camping ground that our old people used and that we still use today. It is used for camping and hunting in the dry season.
20.There was a big battleground for my father and uncle on the flat from Wirndirrwulawula (Barlow Spring). There were about 30 people in that fight. They blamed my father for killing someone but he was innocent. My father and my uncle stood and defended themselves against that whole group of about 30 people. They stood up with a womera (shield) and a birriwa (stick) and defended themselves from spears. They were good fighters and they survived. There is a pile of rocks as remembrance of that fight.
21.Urrunulumburulu is also an important and main area for us. My grandfather was born there and his father, right back. My grandfather’s children were born there too. This area is just south of the exploration area.
22.Between Dimalarbai (Billy Goat waterhole) and Barlow Spring is a flat top where there is a cave area which has always been a camping area for our people, called Nawan Dawang.
23. Gorrwiyn is a Spinifex Dreaming which gardiya (or whitefella) call Carrboyd Ranges. Big spinifex grows here and there is plenty of porcupine. Porcupine is good eating. This Dreaming goes through into Balaburr country which is for another mob, so you need to talk to them also. For anything in this area you would need to talk to us and to them too.
24.At Burnbalala there is a meeting place. All that rock is jirmbala. This is a culture ground for dancing. This is a very important place.
25.Warlarlibung (Claypan) is in the northern area of the tenement, in that pocket where the ridges meet up is a big meeting place. Warlarli means snappy gum and Warlarlibung means where that white gum tree grows. At ceremony time all Miriuwung, Gajerrong, Woolah and Kija people all come together there.
26.Kultjing is inside the tenement area. It is a place for mugirra which is a white paint (ochre) we get from there for junba (ceremony).
27.Dumbululung is a gap for old people to go through. There is a gorge with water there. We use that place for fishing and camping. It is inside the southern exploration area for Seaward Holdings. When you go through that gap, you come out to Wurimi (Flying Fox) waterhole which we use for a dinner camp. Our old people used that area and we still use that area today.
28.There is a Kuru Malriatia (Hot Spring) and a Kurlu Kara (Salt Spring) in the southern exploration area. These are places where our families go for hunting, fishing, swimming and camping all the time.
29.The mining company needs to know about these important places. The mining company needs to respect these places.

MAJOR DISTURBANCE TO LAND OR WATERS
30.In the 1980s CRA worked at Flying Fox and Billy Goat Yard pushing up along the banks and leaving piles of rocks. That company camped at Gurwein camp. They drilled in that area and took samples. They went in without asking. We had no rights. We felt rotten, like a kick in the guts. They found diamond samples at Smoke Creek and hurried us up to sign papers with no legal representation.
31.Mining companies have to deal with Traditional Owners. We don’t want any rushing. We want everything done in a proper was with KLC’s help. They have hurt us in the past and we have to make sure it doesn’t happen again. They have to talk to all of us. They have to listen to us, cultural side. We have to protect our special places. We can’t think about what would happen if they damaged our special places. It can’t happen. No has to mean no.
32.The mining company needs to listen to us. If the mining company just goes onto the land, without talking with us, we feel hurt.’

Mr Dixon’s affidavit is made in the following terms:

Affidavit of George Dixon

‘I, George Dixon. pensioner, of 3/9 Grevillea Avenue, Kununurra, in the State of Western Australia, solemnly and sincerely declare and affirm that:
1.My name is George Dixon. I was born on January 1, 1932 at Horse Creek on Texas Downs Station. The Aboriginal name for the place I was born is Gulya.
2.I am a senior Miriuwung man and a member of the native title holding group for the Miriuwung Gajerrong No. 1 native title determination [WAG 6292, 6293, 6294, 6295 and 6296 of 1998; WAG 6020 of 1999].
3.I am a traditional owner for the country called Mandangala, which is on the Glen Hill Station pastoral lease. That country has the same name as my grandfather. I grew up on that country and I used to live there. I am now living in Kununurra to be close to the health services. However, I am moving back to a new community on my grandfather’s country after the wet season.
4.I know the area where Seaward Holdings (the mining company) has applied for exploration licences, E80/3253 and E80/3359. I know this because I have seen a map which shows the area Seaward Holdings has applied for [annexed and marked “A”]. I have traditional authority to speak for the area.
5.I moved out from town [Kununurra] in the early 1980s to build up our community, called Mandangala, on Glen Hill with my brother John Toby. This community now has lots of houses and at least 200 people live in the community. We have a school in the community for our kids, this was set up in the early 1990s. We run a cattle business on Glen Hill. I have put a mark on a map to show where Mandangala community is [annexed and marked “B”].
6.The Mandangala community is covered by one of the exploration licences applied for by Seaward Holdings. We do not want our community to be disturbed by this company or any other mining company. We do not want our community completely covered by this exploration licence, which would give that mining company rights on top of our community.
7.In the 1980s CRA worked at Flying Fox and Billy Goat Yard. They made a big mess and didn’t ask the people for that country if they could go to those places. Because of this, I understand what types of things mining companies do on country when they have exploration licences. They can do things that will interfere with our community and social activities and our daily lives. They can drill and dig holes which may disturb our special places on our country. I am really worried that this will happen if the exploration licences are given to Seaward Holdings.
8.We still go hunting and collect bush tucker from the areas where the mining company wants to look around. We especially do lots of hunting in that country near Mandangala community, where the top [southern] tenement is [E80/3359]. That is our hunting grounds where we get jarring (kangaroo), dawarr (goanna) and burrabul (porcupine). We also go catch goondurriyn (fish). We depend on this tucker and are worried that our hunting and fishing might be affected by the mining company going around our country.
9.There are many sacred places in the area that Seaward Holdings wants to look around for minerals. In our traditional Law, I have a very serious responsibility to look after the sacred places on my grandfather’s country. I share that responsibility with my brother John Toby and my two sisters, whose names I cannot say [Evelyn Hall and Patsy Hall]. If anything happened to any of the sacred places on my grandfather’s country, my brother and sisters and I would be in very serious trouble for not protecting those places, which we have to do under traditional Law. Some of those places are inside those exploration tenements. This is very serious, because I will be angry and my family will be angry if anything happens to any of those places. My family might also get into trouble, even though we can’t control what mining companies do. This makes it very hard for my family, because we still have that responsibility for those sacred places under traditional Law.
10.There is a story for my grandfather’s country which comes from the ngarrangarni, which is the Dreaming. I have that story now. In that story there is a man who travels down through that country near where Glen Hill Road is and through near Cassidy Bore, toward Doon Doon Hill. That man travelled through that hill and came out the other side. I can’t talk about that story once it goes through the hill because that would be against our traditional Law, which we still follow today. That story is for my grandfather’s country, which is my country. I have to look after that country and that story.
11.There is one place on my grandfather’s country which is very sacred, and is used for Men’s Law. My father showed me that place when we used to walk across to Doon Doon when I was a kid. I cannot give any details about that place because it is against our Law to talk about things 1ike that to women or to strangers. However, I am allowed to say that that Men’s Law Ground is important for the entire region, as well as my family on Mandangala. If anything happened to that Men’s Law Ground, people from all over, from Mistake Creek and from the Ord River, would be very angry and worried. This is because damage to that one place might go on to other parts of the country. It is also because this is a very, very important place. Because that Men’s Law Ground is on my grandfather’s country, my brother and my two sisters and I would be responsible for any damage, even if we tried to stop the damage. If something was damaged on that Men’s Law Ground, we would be in a lot of trouble and might even be put underground [killed], which is the tribal way under traditional Law. This is very serious business in our traditional Law, and it will cause big problems if anything happens to that Men’s Law Ground, because we still follow that traditional Law today. People should know about this and respect it.
12.Native title exists over my land at Glen Hill. We have exclusive possession over Mandangala community and Glen Hill station. This is my grandfather’s country and I belong to that country through him.
13.We have our native title now and are recognised as the owners for this country. These mining companies should have to come to make an agreement with us, the native title holders, to look around that country. These mining companies should also listen to us and respect what we say about what will happen to our communities and our traditional responsibilities if they come on to our country and cause damage, which they might do if they don’t talk to us first.’

Mr Hall’s affidavit is made in the following terms:

Affidavit of Ted Robert Hall

‘I, Ted Robert Hall, tourism business owner-operator, of 2-9 Grevillea Avenue, Kununurra, and Mandangala Community, via Kununurra, in the State of Western Australia, solemnly and sincerely declare and affirm that:
1My name is Ted Robert Hall. I am a Miriuwung man. I am a member of the native title holding group for the Miriuwung Gajerrong No. 1 native title determination [WAG 6292, 6293, 6294, 6295 and 6296 of’ 1998; WAG 6020 of 1999].
2My grandfather’s name was Jangurangan. My grandfather’s country is from Revolver Springs, around the Ragged Range and the Blatchford Escarpment, across to the western side of the Glen Hill Station pastoral lease, down to Wesley Springs, and back up past Flying Fox Yard. Part of my grandfather’s country is now flooded by Lake Argyle. That is also the country for me and my family. I have drawn on a map annexed and marked “A” the rough boundary of my grandfather’s country.
3I have been shown a map of the area where Seaward Holdings Pty Ltd has applied for exploration licences E80/3253 and E80/3359 (“Seaward ELs”). A copy of that map is annexed and marked “B”. The general area of the Seaward ELs is also marked on Annexure A.
4I live at Mandangala Community and also in town in Kununurra. I have marked the approximate location of Mandangala Community on Annexure A with a mark above the letter “Y” in the words “Glen Hills Yard”.
5Mandangala Community was set up in the 1980s, and is now a well-established community with about 80 or 90 people living there. There is also a school which has about 20 or 30 students from kindergarten to years 1 or 2. High school students usually go down to Perth to finish their schooling.
6I am very concerned because one of the Seaward ELs is right over the top of Mandangala Community. The Community was not told about this at all, even though we live there. These are our homes, and having the Seaward ELs over the top of our homes shows no respect for our lives, or our right to live in peace and have some privacy. This is the same as giving someone the right to walk into our backyards. This shows no respect for Mandangala Community, no respect for our privacy or our right to live in peace in our community.
7As well as the residential community, there is a pastoral business run out of Mandangala Community over the Glen Hill Station pastoral lease. There is also a nursery business run by my cousin, Harry Curtin. The nursery business has a contract with the Argyle Diamond Mine to provide plants for revegetation around the mine site. My cousin Harry Curtin has also established a worm farm business as a side line to his nursery business. The worm farm business has been set up so that in the future a fruit and vegetable horticulture business can be developed in the community.
8I am very concerned about the impact that the Seaward ELs will have on these businesses. It is very important that we support the businesses in our community. However, I think that the Seaward ELs will make it more difficult for these businesses because of the impact of the exploration activities, which we have no power to control, on the land and the people around the community. This disruption might be drilling, or having people walking in and out of our community, or heavy vehicles and machinery around the community, none of which we will be able to control or have any say in.
9I have a tourism business which I own and operate out of Mandangala Community. Annexed and marked “C” is a photocopy of the front and back of a promotional pamphlet for this business, which is called Luridgii Aboriginal Eco-cultural Tours (“Luridgii Tours”).
10I first set up Luridgii Tours three years ago. In the first year I developed the infrastructure and facilities required for the business. Facilities have been developed at Second Gorge (which is marked on Annexure A with a cross and the words “2ND GORGE”), including pit toilets, bins, signage and a dinner area, costing in total between $13,000 and $15,000. At Burger Hill (marked on Annexure A with a cross and the words “BURGER HILL”) a walkway was constructed, which involved cutting and clearing a passable track and stairs. In the second and third years of operation of Luridgii Tours we started to conduct the actual tours. Tours are taken to Second Gorge and Burger Hill. There is also a 45 minute walking tour through the gorge at Flying Fox, which I have marked on Annexure A with a straight line showing the approximate location of the gorge and the path the tour takes. This straight line is close to the words “FLYING FOX” and crosses the rough boundaries drawn on the Annexure A for the Seaward ELs and Glen Hill Station pastoral lease.

11I have obtained further financing to expand the infrastructure and facilities of Luridgii Tours after this year’s wet season. This expansion is necessary to meet the growth potential of the business. The new facilities will include a meeting place, bore and kitchen area at Second Gorge, at an estimated cost of about $40,000 in total. Further capital works are also being planned for the Outstation area, which I have marked on Annexure A with a rough square and the words “OUTSTN”. I have obtained permission from the Argyle Diamond Mine, which holds a lease over that land, to expand the Luridgii Tours facilities to this Outstation area. This expansion is likely to include the construction or upgrading of an access track and construction of accommodation facilities. I am currently in the process of developing a proposal to secure the necessary finance for this next stage of development, which is estimated to cost about $200,000.
12At present Luridgii Tours employs four Community Development Employment Program (“CDEP”) workers, as well as myself. I have also applied to employ a further six CDEP workers once the tourism season starts again after the wet season. I intend to split the 10 CDEP workers between tourism duties, such as conducting tours, and development and maintenance duties, to cater for the growth potential of Luridgii Tours.
13I am very concerned about the impact of the granting of the Seaward ELs on the current and future operations of Luridgii Tours. This is a new and growing business which depends on access to and use of the country around Second Gorge, Burger Hill, Flying Fox, and through to the Outstation area. It would be a very hard blow to my new and growing business if exploration, drilling and heavy works started occurring in the area where Luridgii Tours takes tourists. This is because tourists come to Luridgii Tours to see the natural environment and experience some of the traditional culture of the Mandangala Community, not to be exposed to heavy machinery, earth works and exploration activities. There is a risk for me and my business that these types of exploration activities could harm the reputation of Luridgii Tours and harm its future growth.
14I believe that Luridgii Tours has the potential to become a significant Aboriginal-owned and operated business in the Kununurra region. The growth of Luridgii Tours after only three years in operation means that I have had to almost double my work force for next year’s tourist season. This is a significant and hard-won achievement and it should not be jeopardised by the grant of the Seaward ELs. It is wrong that an outside mining company can get rights over my grandfather’s country, which is also my country, and threaten the future of a low-impact and potentially highly successful business which is owned, operated and staffed by the native title holders and traditional owners for that country.
15My grandfather’s country also has many important places that I and my family, who all come from Jangurangan, must look after. This is our responsibility under our traditional Law, and it is my biggest fear that these places could be damaged if the Seaward ELs are granted.
16One of the most important places in my grandfather’s country is the place where my gagayi, my granny, is buried. I have marked the approximate location of this place on Annexure A with a circle and dot and the words “TRAD. AREA”, which is short for traditional area. This place is very important to all of Jangurangan’s family because it is my gagayi’s area, and also because all around is the area where our family used to camp and live in the old days before white people came to this country. This place is also very important because there are a lot of paintings in the caves around there, which we must protect. This area is located on the Doon Doon Station pastoral lease, and Mandangala Community is currently in discussions with the owners of that pastoral lease for an excision or sublease of that area so that we can have our rights and ownership of that area formally recognised.
17My biggest fear is that if the Seaward Holdings ELs are granted, my gagayi’s area and the other traditional and significant places around my gagayi’s area could become damaged because of drilling, digging, construction of tracks or taking of samples. These important and significant places must be protected by the dawawang [traditional land holders] for that country, so that our future generations will be able to enjoy and understand these traditional places. White people do not understand our concept of what is important. For us, a tree or a rock might be very, very significant because it is linked with our traditions and history and culture. If this is not known or understood it is very easy for a white person, including an exploration company, to cause significant damage without even knowing what they have done. This is why our concerns and fears must be listened to and respected.
18Mandangala Community has also been in discussions with Argyle Diamond Mine for a new living area for my mother, Evelyn Hall, at Barlow Springs. Barlow Springs is my mother’s place, and our family is very keen for her to be able to move closer to that place, and also closer to my gagayi’s place so that it will be easier to monitor and protect it. I have marked the approximate location of Barlow Springs on Annexure A with an asterisk and the words “BARLOW SPS.”. It is intended that the houses around the new living area would be well spaced, so that each family would have a comfortable living area. This is very roughly represented by the dots on Annexure A around the location of Barlow Springs.
19I have taken the move out to Barlow Springs into account when developing the proposal for the expansion of Luridgii Tours into the Outstation area. The families at the new living area around Barlow Springs, as well as the infrastructure associated with a move out there, would provide additional support for the proposed tourist operation at the Outstation Area. In return, there would be convenient accommodation for staff around the Outstation Area, and a convenient source of employment for people living around Barlow Springs.
20I am very worried about the impact of the Seaward ELs on our planned move out to Barlow Springs. This is a significant proposal for our community, both in terms of community develop and in terms of the importance of the Barlow Springs area to my mother and my family. The discussions for access to and use of the area are well progressed, and the planned move has also been considered and integrated into my business plans. The impact of exploration activities on the community and business activities around Barlow Springs and the Outstation area could be devastating. As well as the loss of privacy and feelings that we are losing our independence, there is also the practical intrusions which could be significantly distressing for the community members, and possibly completely destructive to my business operations.
21I understand that exploration licences can be granted in lots of places and quite often there is not much that can be done to stop or control them. However, these Seaward ELs have been applied for over our community at Mandangala, over our homes and school and gardens and small businesses. This was done without any notice to Mandangala Community. In addition, the Seaward ELs have also been applied for in the area were we have a well developed plan for our future community and business development. This future planning is also shaped around our concerns for our traditional places, which we have a primary responsibility to protect.
22I am very concerned and very angry at the way in which the Seaward ELs have been applied for without any regard for our community at Mandangala, and without any thought about what our plans are for our future. There is no respect at all for our community in these actions. The Seaward ELs will have a terrible impact on Mandangala, and our plans for our future, which has been developed for our community, residential and business needs, as well as for our traditional responsibilities. The disrespect shown by Seaward Holdings for our lives and our future must not be ignored or allowed to go on. The Seaward ELs should not be granted over the two areas applied for because it will have a terrible impact on our community and could cause great harm to our plans for our future.’

The Tribunal also has before it additional submissions lodged by the native title party and updated submissions lodged by the Government party on 6 April and 1 May 2006 respectively. These submissions were made in response to the Tribunal’s invitation to comment on jurisdictional or other issues that might arise as a consequence of the limited overlap (6.36 per cent) between the boundaries of the Miriuwung Gajerrong determination and E80/3253.
I will now consider this evidence as it relates to each of the proposed licences.

E80/3359 (WO05/48) - community or social activities (s 237(a))

For an objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined at above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence establishes that one Aboriginal community (Glen Hill/Mandangala) is situated within the proposed licence and a further community (Woolah) is situated 9 kilometres southwest of the proposed licence.
Mr Dixon and Ms Hall give evidence of regular fishing, hunting, collecting and camping activities in and around the proposed licence area E80/3359 – including the Doon Doon and Glen Hill pastoral lease. While Mr Dixon’s evidence focuses on the northern parts of E80/3359 (para 8, GD affidavit), Ms Hall’s evidence indicates these and other activities occur more widely than this including on proposed licence E80/3253 (paras 12-15, EH affidavit). The deponents talk of obtaining a variety of foodstuffs from the proposed licences, including jarring (kangaroo), dawarr (goanna) burrabul (echidna), warnmala (yam), darlu (plum), ngarrayu (a wheat-like seed ground into flour), barrdigi (nuts) and marrung/gairring (types of sugarbag). There is also evidence of areas in the vicinity of the proposed licence area which are used for men’s traditional ceremonies (para 11, GD affidavit) but this does not appear to be on the area of proposed licence E80/3359. I find that the native title holders have historically engaged in hunting, fishing, gathering and camping activities on and around the area of proposed licence E80/3359, and those activities continue today.
The native title party argued that the business activities referred to in Mr Hall’s affidavit (paras 7-14, 19-21) are activities of a community or social kind which potentially could be directly interfered with by mining exploration. The business’ activities referred to are:

a pastoral business run out of Mandangala Community over the Glen Hill Station pastoral lease;
a nursery business run by Mr Hall’s cousin Harry Curtain;
a worm farm business established by Harry Curtain as a sideline to the nursery business, so that a fruit and vegetable horticulture business can be developed in the community; and
a tourism business (Luridgii Tours) owned and operated out of Mandangala community.

The first issue raised by the business activities is whether they arise from the determined native title rights and interests. In Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 after analysis of the meaning of the words ‘community or social activities’ Member Sosso concluded that the Tribunal’s inquiry is not directed at ascertaining the likely interference with activities per se, but, rather, those activities which are a manifestation of claimed native title rights and interests (at [58]; adopted in Walley at [13]-[14]). Member Sosso elaborated on his reasons in Ward v NorthernTerritory of Australia [2002] NNTTA 104; (2002) 169 FLR 303 at 321-322 ([59]):
‘[59] I have previously determined that a section 237(a) inquiry is not directed at ascertaining the likely interference with activities per se, but, rather those activities which are a manifestation of claimed native title rights and interests – Moses Silver & Ors/Ashton Exploration Australia Pty Ltd/Northern Territory DO01/13, unreported, 1 February 2002 at [58]. See also Re Nyungah People (1996) 132 FLR 54 at 65 per Deputy President Seaman and Ward v Western Australia (1996) 69 FCR 208 at 224-225 per Carr J. The assertion of the native title party (OCR at paras 14-15) that the reference to community or social activities is to be interpreted as a reference to the particular activities of people who are identified in a particular way, and, as such, the nature of those activities is not conditioned by the identification of the people carrying them on as holders of native title, is, with respect, not tenable. If such an interpretation was correct it would mean that community or social activities of any type could be contended pursuant to section 237(a). This sort of an argument goes against the whole scheme of the Act, which is aimed at identifying traditional ownership and traditional laws and customs. While the courts have rightly recognised that native title is an evolving concept, and that traditional laws and customs inevitably change to meet the needs, aspirations and realities of the environment in which native title holders live and interact, the submission of the native title party would cut the Gordian knot altogether. I do not read section 237(a) as providing an invitation to investigate all community and social activities of native title holders. Not only must the community or social activities be carried on by such holders, they must be activities that identify those persons as native title holders. The suggestion that provided there are community or social activities carried on by native title holders, irrespective of the nature of those community or social activities, section 237(a) comes into play, ignores the whole scheme and purpose of the legislation. The first two main objectives set out in the Act at section 3 are:
“(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.”
Section 237 does not stand by itself in the legislation. It is an integral part of the overall scheme for dealing with future acts. In this instance, determining whether a future act is in reality a low impact future act, such that the normal right to negotiate procedures are not activated. Section 237 is not a charter to traverse into activities that have no relation to native title. In these circumstances, the contention of the native title party while having some superficial attractions, fails to properly consider the overall legislative scheme in which section 237(a) forms a small, but important, part.’
Applying these principles to the business activities referred to in the evidence I find that they do not fall into the category of community or social activities to which s 237(a) is directed. In my view the business activities referred to cannot be said to arise out of native title rights and interests and are only related to them in an incidental way in that the owners of the businesses are also native title holders.
While it is not necessary to decide the point, I also have doubts as to whether business activities can be regarded as community or social activities, irrespective of the issue of whether they must be a manifestation of native title rights and interests. I adopt the views of Member Sosso in Moses Silver at [58]-[60] which involved an analysis of the words community or social activities. The Macquarie Dictionary (revised third edition) (p 396) most relevantly defines ‘community’ as ‘a social group of any size whose members reside in a specific locality, share government; and have a cultural and historical heritage’ and in an ecclesiastical sense ‘a group of men or women leading a common life according to a rule.’ The Tribunal has accepted that there can be a community of native title holders who live in a particular locality or who as a group have certain customs, traditions and spiritual beliefs in common (Smith v CRA Exploration Pty Ltd [1996] NNTTA 32; (1996) 133 FLR 251 at 256). There can be a community of native title holders who live in diverse locations. However, the activities which are interfered with must be those of the community not one or two people within it (Smith at 256).
Similar considerations apply in the case of social activities. The Macquarie Dictionary (revised third edition) (p 1785) most relevantly defines ‘social’ as ‘related to, devoted to, or characterised by friendly companionship or relations’ or as ‘living, or disposed to live, in companionship with others or in a community, rather than in isolation.’ Again, as with the word ‘community’ the emphasis is on group relations. The common theme contained in the use of the word community or social is that they relate to a group and not individuals. Further, the word social in its common understanding does not encompass business or commercial activity. In ordinary usage it is common to hear the distinction made between persons working with each other and seeing them ‘socially’. Because I am satisfied in relation to proposed licence E80/3359 that there are other community or social activities that are likely to be interfered with, the commercial or business activities become less important. Even taking into account that the Tribunal must give a beneficial interpretation to the Native Title Act there are serious questions about whether the business enterprises are activities of a community or social kind. Although not elaborated on to any great extent in the affidavit it appears that the pastoral business was to be run by the community. On the other hand the nursery and worm business and particularly Mr Hall’s tourism operation seem to be individual commercial ventures. While Luridgii Tours employs Community Development Employment Program workers who I assume for the purpose of argument are native title holders, I doubt whether this changes Luridgii Tours from an enterprise run by and owned by Mr Hall to a community or social activity of the native title holders. I can accept that the business enterprise may be of economic benefit to the community but this does not make it a community or social activity.
I must now assess whether the grant of the proposed licence is likely to interference with the carrying on of those social and community activities referred to above, to which I can have regard. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]).
In this case there is historical and current pastoral and mining activity which could have this effect but the native title holders’ evidence establishes that despite restrictions which may have been caused by these activities the native title party still carry on a broad range of social and community activities with a reasonably high level of intensity. The Tribunal must also have regard to the fact that the native title holders’ access to the area would be only limited and temporary while exploration is taking place. Often, given the nature and extent of the native title holders’ community or social activities, the Tribunal has found that because of its relatively limited nature exploration activity would not directly interfere with these activities except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts. In my view, despite the factors just referred to, the nature and intensity of the community and social activities are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken. Importantly in this case there is an established community of some size in a central location on the proposed licence area. The evidence of Mr Dixon and Ms Hall establishes that contemporary activities occur regularly across the proposed licence area (paras 12-15, EH affidavit; para 8, GD affidavit). In addition, both the Doon Doon and the Glen Hill pastoral leases are now under Aboriginal community control and it is therefore unlikely that hunting or gathering activities have been subject to access restrictions since that transfer occurred.

In relation to evidence from Mr Dixon that the grant of the proposed licence is likely to cause spiritual and emotional distress, and thereby interfere directly with the carrying on of social and community activities, the Tribunal accepts his evidence (para 9, GD affidavit;) relating to the responsibility of claimants to look after significant places and that failure to do so properly will lead to fear of misfortune, illness or death. Similarly, Ms Hall’s evidence (para 12, EH affidavit) indicates that the community members suffered hurt when damage was caused by exploration activities undertaken by other proponents in the past. However, the Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at [12]): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’ I adopt Deputy President Franklyn’s findings for the purposes of these inquiries and have not had regard to this aspect of the evidence. The evidence of actual physical activities is sufficient to uphold the objection without taking account of the fears which are provoked by the grant or feelings of sadness which would arise from exploration activities on the land but which do not translate into interference with the community or social activities of the native title party.

E80/3359 (WO05/48) - sites of particular significance (s 237(b))

The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are five sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence 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 Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particularly significance. The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, most recently in WO05/753 – Maitland Parker at [31]-[38], [40]-[41].I adopt those findings for the purpose of this determination. While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each case must be considered on its own facts and particularly whether an area is rich in sites.
Ms Hall deposes that the following sites or areas of particular significance to the Miriuwung Gajerrong native title holders exist within or in the vicinity of the proposed licence. As some of the sites are not specifically located it appears that some of these sites may be on the area of proposed licence E80/3253.

Kirlimburra – located in an area known as Billy Goat yard and associated with the burial site of Ms Hall’s grandmother and a cave containing paintings (para 18, EH affidavit);
Nawan Dawang – located between Dimalarbai (Billy Goat waterhole) and Barlow Spring which contains a cave and camping place (para 22, EH affidavit);
Burnbalabala – the location of which is unspecified, which comprises an important dancing ground (para 24, EH affidavit);
Kultjing – the location of which is unspecified but described as being within one or other of the proposed licence areas, from which white ochre is obtained for ceremonial purposes (para 26, EH affidavit);
Dumbululung – located within the proposed licence area, it comprises a ‘gap’ through which ‘old people’ can pass that leads to Wurimi (Flying Fox waterhole), a gorge with water and good fishing and a camping area in current use (para 27, EH affidavit); and
Kuru Malriatia and Kuru Kara – Hot and Salt Spring respectively, located within the proposed licence area, both of which are in current use for hunting, fishing and camping (para 28, EH affidavit).

Mr Dixon provides information in relation to the following site that appears likely to at least partially lie within the proposed licence area:

Hill and associated Dreaming track – said to run in the vicinity of the Glen Hill Road, Cassidy Bore and toward Doon Doon Hill, which suggests the Dreaming Track intersects the north-west portion of the proposed licence; Mr Dixon deposes that he can say nothing further about this place or the associated Dreaming story as ‘that would be against our traditional law, which we still follow today’ (para 10 - GD affidavit).

Whilst the precise locations of a number of these sites are not given it is apparent that the proposed licence area contains a number of sites considered of significance to the Miriuwung Gajerrong native title holders. The location of sites registered with the DIA may correspond with the sites mentioned above, although this is difficult to confirm on the current evidence. The evidence also establishes a number of sites in addition to those registered. It is important to note that four of the registered sites have been designated Protected Areas under Section 19 of the Aboriginal Heritage Act 1972 (WA) in acknowledgment of their high cultural significance.
The evidence provided by both deponents in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the area, most of which are of particular significance to the native title party.
The affidavits of Mr Dixon and Ms Hall provide evidence of concerns about mining companies entering Miriuwung Gajerrong land without permission and consultation with the traditional owners. Mr Dixon says that ‘if anything happened to those places … my family might also get into trouble, even though we can’t control what mining companies do’ and speaks of the time when miners disturbed the ground at Flying Fox and Billy Goat Yard: ‘They made a big mess and didn’t ask the people for that country if they could go to those places.’ (paras 7 and 9, GD affidavit). Ms Hall deposes that mining companies have ‘hurt us in the past … [w]e have to protect our special places’ (para 31, EH affidavit). The evidence is corroboration of the fact that the sites are of particular significance to the native title party in accordance with their traditions. I am satisfied that the area is relatively rich in Aboriginal sites.
I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any areas or sites of particular significance. The grantee party has not submitted evidence on its own behalf but notes from the various hearings convened by the Tribunal in 2004 and 2005, prior to the referral of these matters to inquiry, reveal that parties had tried to reach an agreement over heritage protection but ultimately failed to do so. I am satisfied that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act and the additional impositions placed on it by the Protected Area status of some registered sites. However, the grantee party has provided no indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
Taking all these factors into account and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the tenement 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 between the parties take place and agreement is reached about the doing of the future act, or in the absence of agreement the issues relating to the effect of the grant on the registered native title rights and interests are fully explored by way of arbitral inquiry (ss 35, 38). The risk of interference can be exemplified by the number of registered mythological sites which are undoubtedly sites of particular significance to the Miriuwung Gajerrong native title holders. The Tribunal is aware that the general location of the registered sites is known but their specific location can be, depending on the nature and significance of the site, contained within an area ranging up to 10 square kilometres. Because of this the Tribunal has found in some cases that where the mining tenement cover areas that are rich in sites including registered sites, that consultation and discussion between the native title party and grantee party is necessary to ensure that the sites are not likely to be interfered with. In this case all but one of the registered sites are also designated Protected Areas under the Aboriginal Heritage Act and will be excluded from the grant (see endorsement referred to above). However, the same issues relating to their precise location still arise making it important for consultation to occur to avoid interference with them. This is particularly the case where there is more than one registered site which is a Protected Area. Unless there is close liaison between the native title party and grantee party through negotiations and agreement there is a real risk of interference with them.
Although the determination of native title has only been made over 63.21 per cent of the area and the balance is the subject of neither a determination or registered claim, I am satisfied that the evidence of community or social activities and number of sites of significance within that 63.21 per cent of the proposed licence area are such that they are likely to be interfered with.
My findings in relation to ss 237(a) and (b) are consistent with those made by myself and two other Tribunal members in objection inquiries in the Kimberley region namely:

Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Mr Daniel O’Dea (the exploration licences were 104 kilometres south west of Halls Creek and involved the Gooniyandi claimants); and
Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn QC (the prospecting licence was 24 kilometres east of Halls Creek).
Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner (the prospecting licence was 13 kilometres north of Fitzroy Crossing).

E80/3359 (WO05/48) - major disturbance (s 237(c))

In view of my findings above, it is not necessary for me to examine the evidence in relation to this section, nor to make a finding as to whether the act is likely to involve major disturbance to land and waters.

E80/3253 (WO04/315)

As noted above in relation to this proposed licence an issue arises as a consequence of the very limited overlap (amounting to 6.36 per cent) between the boundaries of the Miriuwung Gajerrong determination area and the tenement. The question which arises is whether the Tribunal can take into account the interference and disturbance referred to in s 237 where the exploration activities take place over an area which is not the subject of a registered claim or determination of native title. Before turning to an analysis of this issue I examine the state of the evidence in relation to the matters covered in s 237, accepting for the moment that there is no issues relating to the existence of a determination or registered claim for native title over the relevant area, i.e. by assuming there are native title holders over at least a substantial part of the tenement area.

E80/3253 (WO04/315) - community or social activities (s 237(a))

The evidence establishes that the Glen Hill and Woolah Aboriginal communities are situated some three kilometres from the boundaries of the E80/3253. However, the evidence also indicates that there is a proposal to establish a new outstation at Barlow Springs (para 18, TH affidavit), which is located within the proposed licence area. In her affidavit, Ms Hall indicates that this community will be named Wirndirrwulawula and that the move to this outstation has already commenced with the construction of a shed (para11, EH affidavit).
The evidence described at para [29] above from Mr Dixon and Ms Hall also establishes that the native title holders have historically engaged in hunting, fishing, gathering and camping activities on and around this proposed licence, and those activities continue today. As noted in para [30]-[34], the evidence of business activities that also occur on parts of E80/3253 provided by Mr Hall cannot be taken into account by the Tribunal. Similarly, I cannot take into account the evidence of the emotional distress that Ms Hall and Mr Dixon depose may occur if the grant of the proposed licence occurs (para [37] above).
Although there is no well established sizable community such as Mandangala on the proposed licence area I am satisfied that there is sufficient evidence of current social or community activities of a frequency and intensity that is likely to be interfered with by exploration activity. Both Mandangala and Woolah communities are in close proximity to the area.

E80/3253 (WO04/315) - sites of particular significance (s 237(b))

Ms Hall deposes that the following sites or areas of particular significance to the Miriuwung Gajerrong native title holders exist within or in the vicinity of the proposed licence:

Jaliwarlu Ngarrangarni – located at Wild Dog Spring, within the proposed licence, which is associated with the Barramundi Dreaming (para 8, EH affidavit);
Banga – located in the north of E80/3253, also associated with the Barramundi Dreaming (para 9, EH affidavit);
Wirndirrwulawula – located at Barlow Spring, within the proposed licence, which contains a battle ground, a camping ground in current use and cave used to cache stone artefacts in the past (paras 19 and 20, EH affidavit);
Urrunulumburulu – located south of the proposed licence areas, which is the birthplace of a number of Ms Hall’s ancestors (para 21, EH affidavit);
Gorrwiyn – located in the Carr Boyd Ranges to the northeast of the proposed licences, which is associated with the Spinifex Dreaming and the increase of echidnas (porcupines). This dreaming extends into the country of neighbouring native title claim groups (para 23, EH affidavit); and
Warlarlibung – a claypan located in the northern part of E80/3253, which is the place that Miriuwung Gajerrong, Woolah and Kija peoples meet when ceremonies are being conducted (para 25, EH affidavit).

Mr Dixon provides information in relation to the following site:

Men’s Law Ground – this is a place located near Doon Doon and the law ground is reportedly used by men from the throughout the region. Mr Dixon deposes that he can say nothing further about this place ‘as it is against our Law to talk about things like that to women or strangers’ (para 11, GD affidavit). It is not clear whether this site is on the area of the tenement but it appears not to be covered by the native title determination

Whilst the precise locations of each of these sites are again not given it is apparent that E80/3253 contains a number of sites considered of significance to the Miriuwung Gajerrong native title holders. While on the current evidence correspondence between sites registered with the DIA and those mentioned above remains difficult to confirm the evidence establishes a number of sites in addition to those registered. It is important to note that three of the registered sites have been designated Protected Areas under s 19of the Aboriginal Heritage Act 1972 (WA) in acknowledgment of their high cultural significance.
A combination of the uncontested evidence of Mr Dixon and Ms Hall and the evidence from the DIA sites register establishes that this area is relatively site rich and that many of these sites are of particular significance to the native title party.
Taking the factors outlined in paras [45] and [46] into account, I again find that there is a real risk of interference with sites, even if inadvertent, unless there is close liaison between the native title party and grantee party through negotiations conducted with a view to reaching agreement.

Findings in relation to the area of overlap between E80/3253 and the Miriuwung Gajerrong native title determination area

Although the above finding can be made when considering the whole of the proposed licence area the situation is different with respect to the area of overlap only. From the map prepared by the Tribunal’s Geospatial Unit, which was made available to parties for comment, there is only one registered site on the south eastern corner of the proposed licence area (Site No 13973 – Mulungkol - a named place and water source). There is no specific evidence from the native title party’s affidavits which identifies this site as one of particular significance to them. The fact that access to it is Open makes its particular significance less obvious than in other categories of sites. There is a small area where the native title determination overlaps the area of proposed licence E80/3253 in the south west corner adjacent to the boundary of E80/3359 but no direct evidence of any site on this area. Mr Hall’s affidavit refers to a gorge at ‘Flying Fox’ which runs in a east-west direction across part of both tenement areas. This evidence relates to Mr Hall’s proposed tourism activities and particularly a 45 minute walk along the gorge. There is no specific evidence of the particular significance of this area to the native title party in accordance with their traditions. Mr Hall also refers (para 11, TH affidavit) to an Outstation which is also located on E80/3253 near the boundary with E80/3359 which is possibly on the determined area. However, the Outstation is mentioned in the context of Mr Hall’s proposed tourism business which might include the construction or upgrading of an access track and construction of accommodation facilities. Again there is no evidence that the Outstation is a site of particular significance and the proposed tourism activities do not arise out of the native title party’s determined native title rights or interests. Other activities or potential activities deposed to such as the construction of an Outstation at Barlow Springs for Ms Evelyn Hall take place on the area of E80/3253 but are some distance from the area covered by the Miriuwung Gajerrong native title determination

Relevance of exploration activities on E80/3253 which cause ss 237(a) and 237(b) interference outside the area of determined native title

In summary my findings of fact on this issue are that:

there is likely to be direct interference with the community or social activities of the Miriuwung Gajerrong native title party and interference with sites of particular significance to them from exploration activity which takes place over the whole of E80/3253; and
there is not likely to be direct interference with the community or social activities of the Miriuwung Gajerrong native title party or interference with sites of particular significance to them from exploration activities which occur only on the 6.36 per cent of the proposed licence area which is covered by the Miriuwung Gajerrong native title determination.

In other words, if the Tribunal is not entitled to have regard to the type of interference referred to in s 237 which occurs outside the determination area then the expedited procedure will be attracted for E80/3253.

The Tribunal sought submissions from the parties on whether any jurisdictional or other issues arise as a consequence of the limited overlap (6.36 per cent) between the boundaries of the Miriuwung Gajerrong determination and E80/3253 and the absence of any determination or registered claim over the balance of the area. The native title party specifically addressed the issue in submissions made on 6 April 2006 but the Government party’s amended statement of contentions of 28 April 2006 did not.
The native title party’s contentions are as follows:
‘4.Procedural rights under the future act provisions of the NTA arise when the following criteria have been met.
5.Under section 29(2), Subdivision P, Division 3 of the Act, the Government Party must give notice about a future act to a registered native title body corporate or a registered native title claimant or representative Aboriginal/Torres Strait Islander body ‘in relation to any of the land or waters that will be affected by the act’. Section 24AA(1) states that the definition of ‘future acts’ is set out in section 233and that section 227 states that ‘an act that affects native title’ means that the act ‘extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise’.
6.The Native Title Party is a registered native title body corporate under section 29(2)(a), and therefore a native title party for the purposes of sections 30A and, 31 and 32 of the Act. The granting of exploration licenses under the Mining Act 1908 (WA), for exploration purposes, is an ‘act’ that can affect native title rights and interests in accordance with s.233(1). The affidavits that have been filed by the Native Title Party depose that its rights and interests would be affected by any exploration within the Tenement Area, where the grounds set out in section 237 would be likely to occur as a result. Consequently, the affidavits depose evidence of the Native Title Party’s rights and interests being affected within the Tenement Area, pursuant to the definition of an act that ‘affects’ native title, as contained in section 227.
7.It is submitted therefore that in accordance with the NTA the Native Title Party has future act rights in relation to the Tenement Area which is subject to the Miriuwung and Gajerrong #1 native title determination respectively.
The Future Act
8.These future act rights are not diminished or abrogated because the determined area is only a small percentage of the Tenement Area. The Native Title Party submits that this is clear from the definition of a future act in section 233, that future act rights exist where the future act affects the Native Title Party’s native title to land or waters. The Native Title Party has filed affidavit evidence deposing that its native title rights and interests will be affected by the future act within the Tenement Area. This evidence relates to its native title to land or waters, being affected in areas where it has Determined Native Title as well as areas where it has neither Determined Native Title nor a registered Claim for such. However, it is submitted that where it has Determined Native Title within the Tenement Area, the Native Title Party has procedural rights.
9.It is further submitted that the extent or scope of the procedural rights that the Native Title Party has is sourced in section 233 of the Act. The relevant part in this regard 233(1)(c)(i) - a future act is any act that ‘apart from this Act…validly affects any native title in relation to land or waters to any extent’. The use of the words ‘to any extent’ ensures that the Act would therefore allow procedural rights, and the NNTT’s powers to determine those procedural rights applies to situations where the native title to be affected by the future act may only be a small percentage of the Area.
Conclusion
10.As a consequence of the foregoing submissions and an interpretation of the relevant sections of the Act referred to above, it is submitted that the NNTT has jurisdiction to make a determination of the Native Title Party’s native title rights and interests as affected by this future act to any extent in an inquiry into an objection to the expedited procedure being used.’
The right to negotiate provisions of the Act (Part 2, Division 3, Subdivision P ss 25-44) are summarised in s 25. They apply to certain future acts done by governments (which include the grant of mining exploration tenements). Before the future act is done the parties must negotiate with a view to reaching agreement. If no agreement is reached the Tribunal (or Minister) may make a determination whether the act can be done. Unless the right to negotiate procedures are complied with the future act will be invalid to the extent that it affects native title.
Within the scheme an expedited procedure (or fast tracking of the grant) is available which avoids the need for the normal negotiations under s 31. Provision is made for notice of the future act given pursuant to s 29 to include a statement that the act attracts the expedited procedure (s 29(4)). There is provision for a native title party to object to the expedited procedure (s 32(3)) and if objection is made the Tribunal must conduct an inquiry (s 139(b)) and make a determination (ss 32(4), (5)) whether the expedite procedure is attracted or not based on whether the act is likely to interfere directly with the carrying on of the community or social activities of the native title holders, or interfere with sites of particular significance to them or cause major disturbance to land (s 237).
A future act is defined as one which affects native title (s 233) and an act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise (s 227).
A ‘native title party’ (s 253) is defined as having the meanings given by paragraphs 29(2)(a) and (b) and s 30. Section 29(2) says:
‘Persons to be given notice
(2)The Government party must give notice to:
(a)    any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b)    unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i)any registered native title claimant (also a native title party); and
Note:Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii)any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c)    if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and
(d)    the registrar or other proper officer of the arbitral body in relation to the act.’

Section 30 says:

‘Other native title parties etc.
(1)Each of the following is also a native title party:
(a) any person who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:
(i)the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and
(ii)the claim related to any of the land or waters that will be affected by the act;
Note:The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.

(b) any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;
(c) any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:
(i)after the end of that period of 3 months; and
(ii)as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.

Ceasing to be a native title party
(2)A person ceases to be a native title party if the person ceases to be a registered native title claimant.
Note:If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.

Registered native title rights and interests
(3)For the purposes of this Subdivision, the registered native title rights and interests of a native title party are:
(a)    if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or
(b)    if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.
Replacing a native title party
(4)If:
(a)    a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a claimant application; and
(b)    the other person is a native title party;
the first‑mentioned person also replaces the other person as the native title party.’

A native title party is therefore either a registered native title claimant or a registered native title body corporate ‘in relation to any of the land or waters that will be affected by the act’. A native title party is one of the negotiation parties along with the Government and grantee parties (s 30A). It is a native title party who may object to the expedited procedure (ss 32(4), 75) or make an application for a future act determination (ss 35, 75). It is apparent that if there is no native title party in relation to any of the land or waters affected by the act then the right to negotiate provisions do not apply to the tenement (see s 30(4)).
On the other hand, a registered native title claimant or registered native title body corporate becomes a native title party as long as the area of the registered claim or determined native title rights and interests overlap the proposed tenement to ‘any’ extent. That is the present case as there is a registered native title body corporate in relation to 6.36 per cent of the proposed tenement area. The existence of this overlap means that a native title party exists with a right to object to the expedited procedure and the Tribunal has jurisdiction to conduct an inquiry into the objection. However, in my view the right to object does not mean that on the balance of the tenement area the Tribunal is required to assume that registered native title rights and interests exist or to in effect make a decision that they exist. To require the Tribunal to make an assumption or a decision of this kind in the absence of a registered claim or determination over the area is in my view contrary to the right to negotiate scheme. The right to negotiate is based on the existence of a registered native title claimant or registered native title body corporate. The key concept present throughout the provisions is the existence of registered native title rights and interests which involves entries on either the National Native Title Register (determined rights) or the Register of Native Title Claims (claimed rights) (s 30(3)). Unless there is a specific challenge to the Tribunal’s jurisdiction based on the fact that the act concerned is not a future act because it does not affect native title the Tribunal will proceed under the right to negotiate on the basis that a particular act will affect native title where it is to be done over an area subject to a registered claim or determination of native title rights (Andrews and Others v Northern Territory of Australia and Another [2002] NNTTA 170; (2002) 170 FLR 138; Anaconda Nickel Ltd v Western Australia [2000] NNTTA 366; (2000) 165 FLR 116; Mineralogy Pty Ltd v National Native Title Tribunal and Ors, [1997] FCA 1404; (1997) 150 ALR 467). Unless there is such a registered claim or determination, the right to negotiate provisions do not come into play. The fact that the s 29 notice is given to any registered native title body corporate or registered native title claimant which exists in relation to land or waters emphasises the central importance of the existence of a registered claim or determination in the scheme.
Turning to s 237, the first point to be made is that ss 237(a) and (b) refers to community or social activities of or sites of particular significance to the holders of native title. Native title holder is defined by s 224 a prescribed body corporate which is registered on the National Native Title Register as holding native title rights and interests or in any other case the person or persons who hold native title. In ss 237(a) and (b) native title holder is defined by disregarding any trust created under Division 6 of Part 2 (esp. s 56). That is, by disregarding the fact that the native title holder may be a prescribed body corporate which holds the native title on trust for the determined common law holders. However whether held on trust or not, the holders of native title are required to be entered on the National Native Title Register following a determination of native title (s 193). Section 193(2) inter alia says the Native Title Registrar is to include in the Register who the common law holders of native title are and a description of the nature and extent of the native title rights and interests (s 193(2)(b)(ii)). Again, this emphasises the central importance to the scheme of persons who have registered native title rights and interests. While s 237 only refers to native title holders and not registered native title claimants, it has been commonly accepted by the Tribunal and Federal Court that native title holders in this section must be taken to also refer to registered native title claimants. To do otherwise would make no sense of the section in the right to negotiate scheme. In Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152 Lee J said:
‘Part 2 Div 3 Subdiv B of the Act seeks to balance protection of the nascent interests of persons claiming native title with facilitation of the doing of permissible future acts by Governments. The Act preserves the status quo until an accepted application claiming native title in land has been determined under the procedures provided by the Act. (See: North Ganalanja (supra) per Brennan CJ, Dawson, Toohey, Gaudron, Gummow JJ at 616 - 617.) To this end a registered native title claimant is taken to be the holder of native title entitled to negotiate an agreement with Government for the doing of an act by Government in respect of the land under claim.’

More specifically with respect to the expedited procedure and s 237 the Federal Court has accepted this position (Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (per Nicholson J at 405)).

The other issue in s 237 is that the community or social activities of native title holders or sites of particular significance which could be interfered with are those ‘in relation to the land or waters concerned’ and in the case of major disturbance to land ‘any land or waters concerned’. In my view the land or waters concerned is the area of the proposed tenement but only that part of the area for which there are also holders of native title. The primary focus of the Tribunal under this section is to examine the community or social activities or sites of particular significance to the native title holders in relation to the area of the tenement which is also the subject of a registered claim or determination of native title. In other words, there is no mandate to assume the existence of native title or native title holders over the whole of the tenement area. The fact that the Act establishes a procedure to determine who has the right to negotiate (i.e. who are or are assumed to be native title holders for the purpose of the right to negotiate) suggests that the Tribunal should not embark on the exercise of deciding that issue. In some cases it may be simple, in others extremely complex. It is not in my view a desirable or necessary exercise for the Tribunal to engage in. The Act establishes a clear and specific procedure for the right to negotiate to be acquired by the lodging and registration of a claim if no determination has been made and allows time to do this once public notice of a future act has been given.
The Tribunal has on a number of occasions considered the relevance of community or social activities, or sites of particular significance which exist outside the tenement area. In Moses Silver Member Sosso summarised the position:
‘[33] The native title party submitted that in considering whether the criteria in section 237 apply, it is appropriate to consider grantee party activities outside the licence area, and effects of grantee party activities which have an effect outside of the licence area (OSC at para 20). It was said that there is nothing in section 237 which limits the consideration of matters to activities either on the licence area or effects of activities within the licence area. The following contention was made:
“22. Exploration activities can have an impact on community or social activities, areas or sites of particular significance, or land or waters outside the licence area. The Mining Act itself contemplates Grantee Party activities outside a licence area, and, indeed, duties owed to third parties in respect of those activities:
a. A mining tenement holder has no right to impound, disturb or molest any stock or other animals belonging to….the owner or occupier of the licence area or any land adjoining the licence area [s174G]. The provision amounts to a recognition that mining activities can have an impact outside the licence area. Similarly exploration activities can have an impact outside the licence area.
b. The grantee party can construct a right of way from the nearest road to the licence area [s.179].”
[34] In response the government party contended that it is not relevant to consider activities outside the licence area as section 237(a) is limited to “in relation to the land or waters concerned”. Any activities not permitted by the grant would be prima facie unlawful. Moreover the government party pointed out that the native title party’s submissions were in abstract without any factual basis. It was contended: “the examples given are of little assistance to the Tribunal; for example one provision merely gives expression to the restriction on the explorer of assuming the usual landholder right of impounding stock which stray onto the licence area. It does not speak to any off-licence activities, upon which it would be prima facie unlawful for the grantee to engage” (GPCR at para 4).
The government party subsequently submitted with respect to section 237(b) that any sites claimed to be of particular significance need be “in relation to the land or waters concerned”, and this meant that it must be within the proposed tenement, or so close as to be directly and physically affected by exploration activities.
The government party conceded that the Tribunal had determined in Re Smith (1995) 128 FLR 300 that sites not actually on the area of the proposed tenement could be relevant in determining the issue of interference in section 237(b). However it then suggested that this was most probably incorrect and the Tribunal was referred to the wording of the section 29 notice, the boundary of both the proposed tenement and the native title determination application (which correspond) and extracts from the judgment of R D Nicholson J in Dann v Western Australia (1997) 74 FCR 391 (GPFC at para 36).
[35] The government party has itself conceded that the Tribunal can consider (in the context of section 237(b)) areas or sites outside the proposed tenement which are close and will be directly and physically affected (GPFC at para 36). Certainly the words “in relation to” do not have a limiting effect (see eg Queensland Mines Ltd v Northern Land Council (1990) 68 NTR 1). Moreover, the fact that native title holders bring forward evidence in relation to land or waters that is either not part of the proposed tenement or the claim area, does not render that material irrelevant. In this matter, for example, the fact that community or social activities in the nearby community of Kewulyi may be directly interfered with by the future act can be considered, even though the community of Kewulyi falls immediately outside the area of the proposed tenement and the native title claim.
In reaching its determination the Tribunal is not restricted to considering the activities of a grantee party within the area of the proposed tenement. However, if it is suggested that off-site activities be taken into account, then there must be a clear nexus between those activities and issues being considered under section 237. The Tribunal’s inquiry is limited and precise; it is not the role of an expedited procedure inquiry to traverse issues that have no direct relevance to the task at hand. The government party correctly highlights the artificial nature of a debate such as this, when what is being put forward is a statement in the abstract, unconnected to factual examples. Certainly the statutory provisions highlighted by the native title party provide next to no assistance to the Tribunal in this regard. While it would be artificial to prevent the Tribunal from considering all material relevant to making an expedited procedure inquiry determination, the Tribunal would need to be satisfied of the relevance of those off-site activities or rights to the grant of the proposed tenement.’

The approach I have taken is consistent with Member Sosso’s views. I accept that the words ‘in relation to’ have a wide meaning but the authorities emphasise that the meaning to be given to them is dependent on the statutory context in which they are used and the nature and purpose of the legislation (PMT Partners Pty Limited(In Liquidation) v Australia National Parks and Wildlife Service (1995) 184 CLR 301 (per Brennan CJ, Gaudron and McHugh JJ at 313; per Toohey and Gummow JJ at 327-331). As Member Sosso says there must be some connection, relationship or nexus between the two subject matters. In s 237(a) the subject matters are the community or social activities of native title holders and the land concerned being the area of the tenement which is also covered by a registered claim or determination of native title. Provided there are native title holders it is possible to contemplate some community or social activities or sites of particular significance which are outside the tenement area which have a sufficiently close nexus with it to be considered relevant. In Re Smith, the site which was considered potentially relevant was outside the tenement but within the registered claim area of the native title party, so there was no question of who the native title holders were. One could envisage a site of particular significance to the native title holder close to the boundary of a tenement which could potentially be interfered with by the construction of an access track. If there is a registered claim or determination of native title over that area then it can be part of the s 237(b) consideration.
The connection or relationship is likely to be less clear where the community or social activities take place or sites of particular significance exist outside the area of a registered claim or determination of native title. It is not fruitful to speculate on what circumstances might give rise to an appropriate nexus. What I am satisfied about is that the Tribunal does not have a broad mandate to assume or decide that there are native title holders in relation to a proposed tenement area when there is no registered claim or determination made over it. In The State of Western Australia v RC Bropho for and on behalf of the Swan River and Swan Valley Nyungah Community and ors [1996] 992 FCA 1; (1997) 2 AILR 262 the Federal Court (Lee J) said:
‘The common thread in ss 237(a), (b), (c) is a claim to the holding of native title in relation to the land or waters to which the future act is sought to be directed.’

While the issue being considered by the Federal Court in that matter was different to the one faced here, this statement is consistent with the approach which I have taken.

I have also considered the relevance of the High Court case of Yanner v Eaton (2000) 201 CLR 351. In that matter a Magistrate found that native title rights and interests as defined in the Native Title Act existed and dismissed a charge brought under the Fauna Conservation Act 1974(Qld) of taking fauna (crocodiles) without a licence. In so doing the Magistrate relied on s 211 of the Native Title Act which permits native title holders to hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs in the exercise or enjoyment of their native title rights and interests. As far as I am aware there was no registered claim or determination of native title in relation to the area from which the fauna was taken. Despite this the Magistrate made a finding that the relevant native title rights existed on the evidence frequented. The Magistrate’s decision was confirmed by the High Court. The question is whether this authority can lead the Tribunal to assess evidence and make findings in relation to the existence of native title rights and interests where there is no registered claim or determination of native title in relation to the relevant areas. In my view this course of action is not open to the Tribunal in proceedings involving the right to negotiate where Parliament has provided for a specific procedure for the issue of who are native title holders to be determined. It is possible that making a decision of this kind would offend the principles in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 although the contrary argument is that the decision would only be made for the purposes of the right to negotiate (Murray v The Registrar of the National Native Title Tribunal [2002] FCA 1598 at [89] to [101]). However, in my view it is not necessary to enter that debate. The right to negotiate provisions of the Act are a discrete part of the Act which gives claimants and determined holders of native title certain rights if specific procedures are followed. If for some reason they are not followed, it is not for the Tribunal to consider evidence (however complex or simple that might be) and decide that persons are native title holders for the purposes of the right to negotiate and s 237.

E80/3253 (WO04/315) - major disturbance (s 237(c))

It follows from what I have said that the land or waters concerned in s 237(c) is also the area of the tenement over which there is a registered claim or determination of native title.
The Tribunal is required to make an evaluative judgement on whether major disturbance to land 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [87] and the cases cited therein).
I am satisfied in relation to the overlap area of E80/3253 with the Miriuwung Gajerrong determination there is not likely to be major disturbance to land. The evidence specifically relating to this is limited and there are no special aspects to it that would take it out of the ordinary. The area may have been the subject of pastoral activities (certainly they were carried out nearby) and some mining exploration activities. While the general evidence suggests some environmentally sensitive areas (the water catchment area and proposed conservation park), no details of these have been provided and it is not clear if they impact on the overlap area. In any event there are special conditions to be imposed in relation to these areas as well as the standard conditions which will limit the likelihood that the land will be disturbed in a major way.

Determination – E80/3253 (WO04/315)

The determination of the Tribunal is that the grant of exploration licence E80/3253 to Seaward Holdings Pty Ltd, is an act attracting the expedited procedure.

Determination – E80/3359 (WO05/48)

The determination of the Tribunal is that the grant of exploration licence E80/3359 to Seaward Holdings Pty Ltd, is not an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
13 June 2006