Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni - [2019] NNTTA 53

NATIONAL NATIVE TITLE TRIBUNAL

Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (22 July 2019)

Application No:

WO2018/0715

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

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

Tjiwarl (Aboriginal Corporation) RNTBC (WCD2017/001)

(native title party)

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Peter Romeo Gianni

(grantee party)

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State of Western Australia

(Government party)

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

Tribunal:	The Hon John Dowsett AM, QC, President
Place:	Brisbane
Date:	22 July 2019

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 63AA, 66, 67 Native Title Act 1993 (Cth) ss 29, 31, 32, 237
Cases:	Ashwin v Western Australia (No 4) [2019] FCA 308 Hale v Western Australia [2015] FCA 560; (2015) 233 FCR 96 Marputu Aboriginal Corporation RNTBC v Gianni [2019] NNTTA 18 Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Representative of the native title party:	Mr Michael Allbrook, Central Desert Native Title Services Limited

Representative of the grantee party:

Mr Peter Romeo Gianni

Representative of the Government party:

Mr Matthew Smith and Ms Bethany Conway, Department of Mines, Industry Regulation and Safety
Mr Benjamin Tomasi, State Solicitor’s Office

REASONS FOR DETERMINATION

INTRODUCTION

Tjiwarl (Aboriginal Corporation) RNTBC (ICN: 8628) (“Tjiwarl”) holds native title rights and interests in certain land or waters (the “determination area”) on behalf of the Tjiwarl people (the “native title holders”). The determination area lies east‑north east of Geraldton, south‑south east of Wiluna and north‑north west of Leonora. On 25 May 2018 the Department of Mines, Industry Regulation and Safety of the Government of Western Australia (the “State”) gave notice (the “notice”) pursuant to s 29(1) of the Native Title Act 1993 (Cth) (the “Act”) of its intention to grant (the “proposed grant”) exploration licence E36/913 (the “proposed tenement”) to Peter Romeo Gianni (the “proposed grantee”).
The proposed tenement covers an area of 36.348 square kilometres. The notification day for the purposes of s 29(4) was 30 May 2018. The State included in the notice a statement pursuant to s 29(7) of the Act. Hence, subject to any objection, the expedited procedure (described in s 32 of the Act) applies. On 27 September 2018 Tjiwarl lodged an objection pursuant to s 32(3) (the “objection”) in the Tribunal. Pursuant to s 32(4) the Tribunal must now determine that objection.

THE PROPOSED TENEMENT

The proposed tenement falls partly within the boundaries of the determination area, partly within an area over which native title has been extinguished (the “extinguishment area”) and partly over land to which there is no extant claim or determination (the “unclaimed area”). When notice was given pursuant to s 29(2) there was a claim which included the unclaimed area. That claim was Ashwin v State of Western Australia (WAD 6064 of 1998) (the “Wutha claim”). It seems that the State gave notice to the Wutha claim group, but no objection was filed. The claim was dismissed on 8 March 2019. See Ashwin v Western Australia (No 4) [2019] FCA 308. Within the extinguishment area, there is a small parcel of unallocated Crown land. The determination area overlaps 64.6%, or 23.483 square kilometres of the proposed tenement.
Concerning the proposed tenement, at paras 3 to 8.5 of the State’s submissions, it asserts that:
3.   The proposed tenement falls wholly within the external boundaries of the Tjiwarl native title determination area (WCD 2017/0011). No other native title claim or native title determined area overlaps the proposed tenement.
4.   The current tenures within the proposed tenement are shown on the map attached at Annexure 1, with the detail shown under the heading "Land Affected" on the Tengraph Quick Appraisal Form … . The Tengraph Quick Appraisal Form indicates that there is, relevantly:
4.1"C" Class Common Reserve as to 29.7%;
4.2Pastoral Lease (Leinster Downs) as to 64.6%; and
4.3Unallocated Crown land as to 2.7%.
5.   The area of the proposed tenement has previously been the subject of:
5.14 granted exploration licences. Of these, 2 overlapped the proposed tenement area by more than 88%, and 1 of these overlapped the proposed tenement area by 100%.; and
5.26 mining leases. The highest overlap with one of these tenements was as to 8.5%.
6.   There are no Aboriginal communities on the proposed tenement.
…
7.   According to the Department of Planning, Lands and Heritage's (DPLH) Aboriginal Heritage Inquiry System, there are no sites within the proposed tenement which are registered under the Aboriginal Heritage Act 1972 (WA) (AHA) … .
8.   The Aboriginal Heritage Inquiry System also states that the following "other heritage places" are within the area of the proposed tenement:
8.1       4 boundary restricted natural features;
8.2       10 artefact scatter sites;
8.3       2 grinding base sites;
8.4       6 quarry sites; and
8.5       2 water sources.
In the above extract, the reference to the “Tjiwarl native title determination area” refers to the whole area over which native title was claimed, including the “determination area”, as defined above, and the “extinguishment area”, as also defined above. The State seems not to have recognized the fact that the proposed tenement includes the unclaimed area. At para 7 of the above extract there is reference to the Aboriginal Heritage Act 1972 (WA). I shall refer to that Act as the “AH Act”.

STATE LEGISLATION

Sections 63AA and 66 of the Mining Act 1978 (WA) (the “Mining Act”) relevantly provide:
63AA
(1) On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.
(2) A condition imposed under this section may be cancelled or varied by the Minister at any time.
(3) A condition imposed in relation to a licence under this section ‑
(a) may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and
(b) whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.
66
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject ‑
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
Pursuant to s 67, and subject to various qualifications and conditions, the holder of an exploration licence has priority with respect to the grant of mining leases or general purpose leases over any part of the land which is the subject of the licence. The State proposes to grant the proposed tenement, subject to the conditions set out in a document provided by the State and attached to these reasons. Further, at paras 9 and 10 of its submissions, the State asserts that:
9. Breach of a statutory condition or condition imposed by the Minister on an exploration licence leaves the licence liable to be forfeited.
10. The Government Party intends to impose the following condition [the “special condition”] on the grant of the proposed tenement:
In respect of the area covered by the licence the licensee, if so requested in writing by the registered native title body corporate in respect of the Tjiwarl and Tjiwarl#2 determination area, the Tjiwarl (Aboriginal Corporation) RNTBC (the "native title party''), such request being sent by prepaid post to reach the licensee's or agent's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the native title party any Regional Standard Heritage Agreement ("RSHA '') nominated by the native title party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading "Regional Standard Heritage Agreement."
[Footnotes omitted.]
No information has been provided as to the content of the various regional standard heritage agreements (each described herein as a “regional heritage agreement”). However all parties address such agreements in their submissions. For that reason I have given some superficial consideration to the terms of the regional heritage agreements, identified by the State in its original submissions at para 10. The regional heritage agreements may be found on the relevant State website. In any event, in the absence of detailed submissions concerning the terms of such agreements, I have been unable to assess the adequacy of the protection which they might offer in this case.
Tjiwarl’s original case appears from its original statement of contentions dated 30 January 2019, an affidavit by Kado Rentan Eldred Allison Muir (“Mr Muir”) dated 30 January 2019 and a further statement of contentions dated 26 March 2019. The further statement of contentions deals with the submissions of the proposed grantee and the State.

THE OBJECTION

By including the s 29(7) statement in the notice, the State effectively asserted that, pursuant to s 237, the proposed grant:
(a) … 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) … 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) … 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.
Tjiwarl disputes that assertion as it concerns ss 237(a) and 237(b). It has abandoned reliance on s 237(c). In its original submissions, Tjiwarl’s case concerning s 237(a) appears at paras 5.11‑5.13 as follows:
5.11      There is a community of registered native title holders in the area.
Particulars
(a) The Tenement contains a camp site where Tjiwarl native title holders and their predecessors lived.
(i)    Muir Affidavit at paragraphs [5] and [6].
(b) At least one Tjiwarl native title holder, Talbot Muir, continues to reside in the immediate vicinity of the Tenement.
(i) Muir Affidavit at paragraph [11].
5.12The community of native title holders carry on community and social activities in accordance with their traditional laws and customs in the area of the Tenement.
Particulars
(a) The community of native title holders access the area of the Tenement to hunt animals for sustenance.
(i)    Muir Affidavit at paragraphs [9] – [11].
(b) The community of native title holders frequently access the area of the      Tenement to carry on those community and social activities.
(i)    Muir Affidavit at paragraphs [8] – [11].
5.13Activities of the Grantee Party over the Tenement will interfere with the ability of the native title holders to conduct community and social activities within the Tenement.
Particulars
(a) The Grantee Party has planned a several field trips to the area of the Tenement and plans to conduct field mapping, rock chip and soil sampling and may conduct exploration drilling.
(i)    Government Party Initial Compliance at page 24.
(b) The Native Title Party considers that this level of activity will interfere with      the carrying on of community and social activities in the area and within the Tenement.
(i)    Muir Affidavit at paragraphs [12] and [13].
In its original submissions, Tjiwarl’s case concerning s 237(b) appears at paras 6.21 to 6.23 as follows:
6.21The Tenement contains sites and areas of particular significance to the Native Title Party.
Particulars
(a) The Tenement contains a site of particular significance identified as “Vivien Camp” which is an area and/or site of particular significance to the Native Title Party.
(i)    Muir Affidavit at paragraphs [4] – [8].
(b) Vivien Camp is of immense cultural and historical importance to the Native Title Party as part of the “Tjiwarl story” in a way that may not be immediately apparent to those who are not part of the Tjiwarl community.
(i)    Muir Affidavit at paragraphs [4], [7] and [8].
(c) The Tenement contains manifestations of the Mingari and Tjikamata Tjukurrpa [Mountain Devil and Echidna Dreaming] which is a story of significance to the Tjiwarl native title holders and is part of a complex dreaming track which manifests in a limited number of places in the desert.
(i)    Muir Affidavit at paragraphs [14] – [20].
(d) A particular species of tree grows in the area of the Tenement which is related to, and is itself a manifestation of, the Mingari and Tjikamata Tjukurrpa [Mountain Devil and Echidna Dreaming].
(i)    Muir Affidavit at paragraphs [21] and [22].
(e) Physical elements of the site are believed to be formed by the tjukurrpa and the Native Title Party is responsible for looking after the area and/or site in accordance with their traditional laws and customs.
(i) Muir Affidavit at paragraph [18].
(f) The native title holders have an obligation, according to their traditional laws and customs, to maintain and protect sites of particular significance located within the Tenement.
(i) Muir Affidavit at paragraph [28].
(g) The native title holders risk sickness or physical injury in the event that the part of the tjukurrpa story, and/or the sites/areas of particular significance, located within the Tenement is damaged by activities conducted within the Tenement.
(i)    Muir Affidavit at paragraphs [25], [27] and [28].
(h) The native title holders have obligations to other members of the Western Desert Cultural Bloc to protect and maintain the parts of the Tjukurrpa story that manifest within the Tenement.
(i)    Muir Affidavit at paragraphs [23] - [24] and [28].
6.22The nature and number of sites and areas of particular significance within and around the Tenement is such that interference of the kind contemplated by section 237(b) NTA is likely.
Particulars
(a) Sites created by the Tjukurrpa are, by their very nature, “not sites which might be readily identifiable by persons other than those instilled in the mysteries of the [t]jukurrpa. Therefore, notwithstanding the best of intentions, inadvertent interference is distinctly possible if the grantee party enters the area without guidance from the native title party”: … .
(i)    Muir Affidavit at paragraph [25] – [26] and [29].
(b) Interference with parts of the tjukurrpa will cause emotional distress to the native title holders.
(i) Muir Affidavit at paragraph [25].
6.23The nature of the sites and areas of particular significance within the Tenement are such that the AHA offers minimal protection from interference pursuant to section 237(b) NTA.
Particulars
(a) The nature and importance of the sites within the Tenement is such that certain activities permitted to be undertaken upon the grant of the licence (as to which see paragraph 3.3, above) will constitute interference pursuant to section 237(b) of the NTA, but may not be prohibited by the operation of section 17 of the AHA.
(i)    Muir Affidavit at paragraphs [12] and [13].

TJIWARL’S EVIDENCE

Mr Muir is a native title holder and a member of Tjiwarl. He is also a wati or initiated man and has cultural authority to speak for the area of the proposed tenement. He knows the area well and understands where the proposed tenement is located. I summarize his evidence as follows.
There is an area of unallocated Crown land in the middle of the proposed tenement where the “old people” had a camp. Mr Muir usually refers to it as the “Vivien Camp”. The remains of the old camping places, including old building materials, are still present at the site. The camp was set up in the 1980s and 1990s by an Ngoongar man named Arnold Frank. People who lived there, at one time or another, included Scotty Lewis and his wife, Mary, and Willie Hill and his wife, also Mary. It was one of the last camping places where people lived in the traditional way whilst also working on the country. Other old people would visit the camp from time to time, including Mr Muir’s uncle, Paddy Walker and his tjamu, Scotty Tullock.
For the Tjiwarl mob the camp is associated with their old people, a place where they lived and worked. It has immense historical and cultural significance because it is the last camp site used by significant elders. The camp is close to a road which bisects the proposed tenement, running from east to west. The camp is located north of the road. People visit the camp frequently to show their families where the old people camped and lived. This is part of the Tjiwarl story. The people whom Mr Muir sees there are most frequently hunting, camping or just travelling through the area. They include Aunty Gay (Harris) and Mr Muir’s brother, Talbot (“Talbot Muir”) and his wife, Maurveen. They are frequently in the area and often traverse it via the road, travelling in a westerly direction. Mr Muir has visited the proposed tenement on many occasions, and seen or heard about many native title holders passing through that country on their own travels. They can stop there and get bush food such as kangaroo and goanna.

Talbot Muir has a camp close to the proposed tenement, on the eastern boundary. He lives there. He travels all through that area including around Vivien, and in the proposed tenement to hunt goanna and kangaroo. At paras 12 and 13, Mr Muir says:
12. It would concern us if we saw any drilling being done there in the Vivien Camp. I would be upset about it and others would be too. Even pegging some holes or digging trenches associated with the drilling would make us upset. Any disturbance without consultation about the impact would be a concern.
13. Mining activities like drilling and building tracks or camps in the Tenement will disturb the animals and frighten them away from that area with all the noise. Also, if there are lots of miners in the area of the Tenement then we might not want to hunt there. Most people these days hunt with cars with rifles and we would stay away if there was a camp nearby-we don't want to hurt anybody!
Mr Muir testifies to a traditional story which he says:
[C]ommences in Coolgardie and comes up through Goongarrie to Menzies and Niagra Dam. Then it heads east into the desert before coming back towards Leonora and into our country at Weebo, Agnew and Leinster and [the proposed tenement].
It is a love story known as the “Mingari and Tjilkamata tjukurrpa”. It tells of a man who ate ants, and as a result, smelt like ants. Nobody liked him and, in particular, no woman would go near him. One day he met a young woman who also ate ants and suffered from the same problem. She was very beautiful, and he immediately fell in love with her. They decided to elope, conduct which the Tjiwarl call “warngitjarra”. However they were the wrong skin group. According to the skin way, the man was the girl’s uncle. Their families and friends became very upset and pursued the couple. The couple knew that if they were caught they would be speared; so they ran away and concealed their tracks. They camped in far‑away places so that nobody could find them. The story ends sadly. Their people found the couple and they were punished by spearing. Upon their deaths they were transformed into the Mingari (the mountain devil) and Tjilkamata (the echidna).
The Mingari is a very beautiful lizard with spines all over it. They represent the spears. The lump on the back of its neck represents the place at which the women hit the young woman with a club or digging stick, and so killed her. The spikes on the echidna are the spears that were left protruding from the man.
This story is represented in the western section of the proposed tenement in a number of places. There is a small hill on the side of the road which is part of the couple’s camping area. The hill represents the echidna. The Tjiwarl would say that this hill is the Tjilkamata. He makes the hill, but also is the hill.
There are other hills in the western part of the proposed tenement, which hills are associated with this same tjukurrpa. There are breakaways on the eastern side of the proposed tenement which are also associated with it. A special tree grows in the proposed tenement where Mingari and Tjilkamata camped as they fled through the desert. These trees are a traditional source of water. The old people survived in the extreme environment by digging up the roots and draining them for water. The old people followed the story in coming to the campsite to get water.
Mr Muir learnt this story from his uncle, Paddy Walker. He has looked after it over many years. Wati have the responsibility to look after country and such sites. Wati from other parts of the desert watch to make sure that they are protecting these places. Mr Muir feels them watching and making sure that he and other wati are looking after the country and these important sites. Discharge of the obligation is particularly important where a tjukurrpa manifests itself close to the roads, as this one does. It makes it easier for people to check up on how the wati are doing their job. The wati need to make sure that they are protecting the country and can account for what they have done.
Mr Muir says that the western part of the proposed tenement was made by the dreamtime and has special significance to the wati. They have ritual authority to look after it and maintain its cultural integrity. Were the hills and the surrounding area to be interfered with, the wati would feel sorry and sick for the country. It would damage the integrity of the site. They do not want companies in the area. Such presence causes them to worry that they will damage the site. If an exploration company wishes to visit the tenement and wants to go to certain parts of the tjukurrpa, then they must know where it is safe for them to go. They must also undertake suitable heritage clearances with the wati who can show them where it is, “okay for them to go”.
If a wati lets something happen to his own country then he might be “sung” by someone else, or somebody might maparn him, making him sick, using spiritual power, taking his soul so that it withers and passes away. The country itself might also hold him responsible. He could get sick that way too.
A wati’s responsibility is to look after important places such as those associated with the Mingari and Tjilkamata tjukurrpa. The wati at the other ends of the story line will hold them responsible if they are negligent concerning their part of the tjukurrpa. They will be held accountable and can be physically punished. They do not want anybody going to the tenement and damaging it without asking first. They might go to the wrong place without knowing it. There might be serious consequences.
At some points in Mr Muir’s affidavit, it is not clear whether he is speaking about the wati, including himself, or about the native title holders generally. The better view is that he is discussing the wati and their duties and opinions. It does not really matter. Mr Muir’s evidence is plainly based upon the proposition that the wati and their responsibilities are part of the native title holders’ laws and customs.

CHANGES IN Tjiwarl’s CASE

This matter has had an unusual history. In the course of preparing these reasons, I realized that Mr Muir’s evidence was, in some respects, vague. It became apparent that some of the sites to which he referred, including Vivien Camp, were outside of the determination area and inside the extinguishment area. The Tribunal raised this matter with the parties. All three parties have provided additional evidence and supplementary submissions. There has been no objection to the receipt of such evidence. I propose to take it into account. Tjiwarl also made submissions in reply to the supplementary submissions provided by the other parties. Tjiwarl’s submissions in reply departed, to some extent, from its earlier contentions.
Tjiwarl now also relies upon an affidavit by Marian Grace Hennessy dated 17 May 2019. Ms Hennessy is a geographical information services officer employed by Central Desert Native Title Services Ltd (“Central Desert”), which company is assisting Tjiwarl in these proceedings. Ms Hennessy is familiar with the Tjiwarl claim area and was shown parts of it by some of the native title holders. She exhibits three maps and offers interpretation of them. In particular Ms Hennessy identifies “breakaway country” in the north‑east of the proposed tenement. Ms Hennessy points to the presence of a watershed in exhibit 2 to her affidavit and identifies it as the breakaway country referred to by Mr Muir. At para 15 of her affidavit, Ms Hennessy said:
In my opinion, the main geographical feature that is present in the Tenement is the breakaway country present in the north-eastern section. Apart from a small area of elevation in the south-western part of the Tenement, which is located entirely within an area marked as "Reserve" there appear to be no other obvious geographical features which I have been able to identify. I have prepared an A3 map that shows the area where I consider that the breakaway country feature is located. This is marked in yellow on the map which is attached to this affidavit and marked "MH-3".
There is no challenge to this evidence.

THE PROPOSED GRANTEE’S FURTHER EVIDENCE

The proposed grantee’s additional evidence identifies previous tenements which have encroached upon the breakaway country identified by Ms Hennessy. Clearly, there are, or have been numerous other tenements overlapping the northern and eastern areas of the proposed tenement, including the breakaway country. The proposed grantee asserts that another explorer has spent $1.128 m on exploration in that area. He similarly asserts that there are two current mining leases which “slightly encroach” on the breakaway country.
In addition to the intentions outlined in his original submissions, the proposed grantee indicates his willingness to:
·conduct a heritage survey immediately before any ground‑breaking activity, particularly in the breakaway country;
·consult with Tjiwarl through Central Desert;
·time and tailor the proposed exploration, “to best avoid and not interfere with” community or social activities, especially camping activities; and
·give notice to Tjiwarl of any exploration to be undertaken.

the state’s further evidence

Without objection, the State has provided further evidence in the form of conditions to be imposed upon the proposed grant. I have previously referred to them at [7]. They are attached.

TJIWARL’S SUBMISSIONS

At para 1.7 of its original submissions, Tjiwarl submits that:
The National Native Title Register records that the Native Title Party have the right of possession, occupation, use and enjoyment over parts of the determination area, to the exclusion of all others. In the balance of the determined area the following non‑exclusive native title rights and interests were recognized:
(a) the right to access, remain in and use that part;
(b) the right to access, take and use the resources of that part for any purpose;
(c) the right to engage in spiritual and cultural activities in that part;
(d) the right to maintain and protect places of significance on that part; and
(e) the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert traditional laws and customs.
The reference to the right to exclude others is incorrect and has been withdrawn. Further, we now know that some of the areas or sites treated in the original submission as being on land over which native title was held, are actually located in the area where native title has been extinguished.
Tjiwarl further submits that:
·the proposed tenement will be granted for a period of five years, with possible extensions; and
·by reference to the rights and conditions prescribed by the legislation, “ … a considerable amount of activity that can reasonably be considered as being likely to cause disturbance to an area of land subject to an exploration licence is permitted under the Mining Act.”
Tjiwarl cites the remarks by French J (as his Honour then was) in Smith v Western Australia (2001) 108 FCR 442 at 450 as follows:
The [Native Title Act] is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed.
His Honour was, of course, concerned with legislative purpose as a consideration in construing the terms of the legislation. Tjiwarl submits that the phrase “not likely” in s 237 requires a predictive assessment as to the likelihood that the grant of the proposed tenement would have the impacts set out in ss 237(a) and/or 237(b), and that the word “likely” is to be interpreted as meaning a “real, or not remote chance or possibility”. It need not be shown that the risk of interference is more probable than not. I accept those submissions. Tjiwarl accepts that the Tribunal must consider the effect of the existing statutory protective regime (under the AH Act) upon the likelihood that any proscribed interference will occur.

Section 237(a)

Section 237(a) deals with the community and social activities of the native title holders. The protection is against “direct” interference with such activities. Tjiwarl submits that interference is, “action which has the affect [sic] of hampering or affecting adversely any community activities of the native title holders”. Such interference must be “substantial”, meaning “not trivial”. The exercise involves an evaluative judgment of the possible effects of the proposed grant upon such community or social activities.
Tjiwarl submits that the term “community” should be construed broadly, referring to the reasons of Merkel J in Shaw v Wolf (1998) 83 FCR 113. At 122, his Honour said, in a slightly different context:
Community, like identity, is a social construct. A community may be a human settlement within a particular locality, a local social system - comprising a set of relationships that take place wholly or mostly within a locality, or it may embrace a type of relationship between geographically dispersed individuals having some common sense of identity. (The MacMillan Student Encyclopedia of Sociology, Ed M Mann (1983), p 56.)
The New Shorter Oxford English Dictionary relevantly defines the term as, “[a]n organised political, municipal or social body of people living in the same locality; a body of people having religion, profession, etc in common.” There is no definition of the word “community” used as an adjective.
The word “social” means, “living or disposed to live in companies … or communities of or pertaining to society with its organisation as a natural or ordinary condition of human life”. The word “society” relevantly means, “[t]he system of customs and organization adopted by a body of (esp. human) individuals for harmonious and interactive co‑existence or for mutual benefit, defence, etc … . The aggregate of people living together in a more or less ordered community.” Clearly enough, the relevant activities must be those of a recognizable group. However it is not necessary that all members of the group, always or ever, participate in such activities. Whether particular activities are activities of the relevant group is a question of fact. The activities of one person or a sub‑group may not be those of the group. Again, it is a question of fact.
Tjiwarl submits that:
·s 237(a) protects “activities”, not “mere assertions about spiritual connection”;
·s 237(a) may protect activities carried out beyond the boundaries of the proposed tenement; and
·activities by the proposed grantee outside of these boundaries may interfere directly with such community or social activities.
As far as the evidence goes, there is no suggestion that the proposed grantee will perform any relevant conduct, pursuant to the proposed grant, outside of the proposed tenement. Further, with one possible exception, there is no suggestion of any relevant community or social activities outside of the proposed tenement. The possible exception is Talbot Muir’s camp “close by the Tenement on the eastern boundary”. It seems probable that the camp is outside of the proposed tenement. In any event, one man’s camp (or a husband and wife’s camp) cannot, by itself, be accurately described as a community or social activity. I note that this camp is in the east, and so not near to Vivien Camp.
Concerning Vivien Camp, Tjiwarl submits that the native title holders carry on community and social activities there, including hunting, camping and visiting, such visits relating to its status as a place where previous traditional owners dwelt. I accept that evidence.
Above, I have set out para 5.13 of Tjiwarl’s submissions, in which it identifies the activities which may be undertaken by the proposed grantee on the proposed tenement. At para 5.14 it submits:
Meaningful consultation and negotiation between the Native Title Party and the Grantee Party is required to ensure that community and social activities are not likely to be interfered with.
Particulars
(a) The Native Title Party requires negotiations to take place to ensure that the hunting activities undertaken pursuant to their native title rights and interests do not risk the safety of all employees of the Grantee Party.
…

Section 237(b)

Section 237(b) protects areas or sites of particular significance to the native title holders. Tjiwarl submits that areas or sites of particular significance, not located within the proposed tenement, may be adversely affected by the grant of the proposed tenement for the purposes of s 237(b). Again, I do not understand there to be any such area or site. It also submits that the register of sites maintained under the AH Act is not a record of all aboriginal sites in Western Australia. Further, the statutory criteria for protection under the AH Act do not mirror the concept of areas or sites of particular significance prescribed in s 237(b). Finally, pursuant to the AH Act, in some circumstances the Minister might permit the destruction of tradition sites, without any input from the native title holders. In effect Tjiwarl does not accept that the AH Act offers effective protection of areas or sites of particular significance. These criticisms have merit. See my discussion of the matter in Marputu Aboriginal Corporation RNTBC v Gianni [2019] NNTTA 18 (2 April 2019) at [27] and [43] to [46].

further submissions by tjiwarl

As I have said, following the receipt of the original submissions by the proposed grantee and the State, and before the events leading to the round of supplementary submissions, Tjiwarl provided further contentions in response to those submissions. Because of the content of such response, it will be convenient if I deal with it before dealing with the submissions by the proposed grantee and the State. In that document Tjiwarl casts doubt on the efficacy of the proposed grantee’s offer of a buffer zone around Vivien Camp. Whilst acknowledging that there have been previous tenements in the area of the proposed tenement, Tjiwarl points to the lack of evidence that drilling has previously been undertaken. However the proposed grantee provided further evidence to that effect in his supplementary submissions and supporting affidavit.
As to the assertion that there are no registered Aboriginal sites in the proposed tenement, Tjiwarl submits that there are “compelling reasons” for not disclosing information concerning such sites. That may be so, but it is of little assistance for present purposes.
Tjiwarl notes that the proposed grantee’s outline of its intended exploration does not disclose matters set out in its original application, in particular its intention to engage in rock chipping which, Tjiwarl asserts, would interfere with sites of particular significance. Further, the proposed grantee intends to commission any heritage survey after such rock chipping has occurred. Tjiwarl casts doubt upon the efficacy of the proposed grantee’s offer to consult, absent any agreement between them. It points out that the regional heritage agreements deal only with heritage matters and not with community activities.
Tjiwarl also takes issue with the State’s original submissions. In particular, it dismisses the State’s willingness to insist upon the proposed grantee entering into a regional heritage agreement on the ground that the proposed agreements are not appropriate to the circumstances of the native title holders and this determination area.
The State makes the generally uncontroversial assertion that the Tribunal should assume, in the absence of evidence to the contrary, that a grantee party will not act in a way which is contrary to law or its legal obligations. Tjiwarl asserts that the State should provide evidence as to the proposed grantee’s prior conduct, including an affidavit deposing to the fact that there has been no previous failure to comply. This submission is misconceived in that it strikes at the very basis of the assumption to which the State refers and places upon it an obligation to prove that there has been no previous non‑compliance. Tjiwarl also asserts that application of the AH Act to any site might facilitate its destruction, having regard to the Minister’s powers under that Act.

Tjiwarl then deals with the State’s submissions concerning s 237. In addressing the State’s willingness to compel the proposed grantee to enter into a regional heritage agreement with Tjiwarl, Tjiwarl submits that it would never enter into such an agreement because it would fail to safeguard sites in accordance with the native title holders’ laws and customs. Further, as previously submitted, any such agreement would not protect community and society activities.
Tjiwarl submits that its willingness to negotiate is not relevant to the question of likely interference as that question goes to its right to negotiate pursuant to s 31. There is merit in this argument. There is a clear tension in the submission that Tjiwarl’s willingness to negotiate should deprive it of any right to negotiate in good faith pursuant to s 31.
Tjiwarl also challenges the assertion that there is no evidence of hunting, camping and travelling in the proposed tenement. Tjiwarl refers to Talbot Muir as living near the proposed tenement and, by inference, undertaking such activities. I have indicated that I do not accept that Talbot Muir’s camping near the proposed tenement is, of itself, a community or social activity. There is no evidence that others camp with him except, perhaps, for his wife. However in my view, Mr Muir’s affidavit sufficiently demonstrates that native title holders visit Vivien Camp and camp and hunt in that area, and more widely throughout the proposed tenement. That conduct constitutes community or social activities of the native title holders.
As to the State’s submissions concerning s 237(b), Tjiwarl rejects the assertion that Vivien Camp cannot be a site of particular significance because of its relatively recent establishment. Tjiwarl submits that provided the camp was established in accordance with traditional laws and customs, there is no requirement that the site be established in the distant past in order that it be an area or site of particular significance. I deal with that matter later in these reasons. Concerning the tjukurrpa, the State submits that there is a lack of specific evidence as to particular manifestations of it. I also deal with this matter later in these reasons. Concerning regional heritage agreements and the proposed buffer zone, Tjiwarl repeats its submissions made in response to the proposed grantee’s submissions. With respect to the State’s submissions regarding Tjiwarl’s concerns about the effect of drilling on the amenity of the area, it refers to the affidavit evidence as to the responsibilities of the wati and the consequences of any failure in that regard.

supplementary submissions by tjiwarl

In its supplementary submissions Tjiwarl accepts that the proposed tenement includes part of the determination area, part of the extinguishment area and the unclaimed area. Vivien Camp lies in the extinguishment area. Nonetheless, Tjiwarl submits that it is a site of particular significance for the native title holders, both by virtue of its occupation by the old people, and by virtue of the Mingari and Tjilkamata tjukurrpa, a story of great cultural importance to the native title holders and part of a wider desert tradition. However, although Mr Muir asserts that Vivien Camp is a place of “immense historical significance and culture significance”, he attributes such significance to its association with the old people and their residence there. He does not assert any link between Vivien Camp and the tjukurrpa.
Tjiwarl asserts that the breakaway country, a feature of the tjukurrpa, clearly lies largely within the determination area, and that such country is, “a prominent feature of the landscape which is associated with the tjukurrpa”. Tjiwarl submits that the breakaway country is of particular significance and that, as it occupies a large part of the tenement area, interference would be unavoidable. At para 11, Tjiwarl submits:
To the extent that there is a question about whether the Tribunal has jurisdiction to make a determination in relation to this matter, the Native Title Party submits that there is now sufficient evidence to establish that:
(a) an area of particular significance exists within the Tenement;
(b) this area of particular significance is the breakaway country, which is a manifestation of the Mingari and Tjilkamata Tjukurrpa; and
(c) the tjukurrpa is linked to the native title rights and interests that were recognised by the Federal Court of Australia on 27 April 2017.
At para 25 of his affidavit, Mr Muir identifies the western part of the proposed tenement as having been made by the dreamtime. He makes specific assertions concerning the significance of this area to the wati and the adverse consequences of interference. Mr Muir makes no such specific assertions concerning the breakaway country. Although Vivien Camp is in the west, he seems not to be speaking about it in para 25 and the following paragraphs of his affidavit. It is dealt with only in paras 4 to 13.
On 10 June 2019, Tjiwarl made submissions in reply to the supplementary submissions made by the proposed grantee and the State, as follows:
In our view, the evidence of Mr Muir demonstrates that the area of the Tenement contains a number of interrelated physical features (being the small hill, trees, Vivien Camp and the breakaway country) which are described as being connected to, and formed by, the tjukurrpa. The location of the Vivien Camp in an area of [unallocated Crown Land] which is excluded from the determination does not diminish its importance in the total evidence relating to the manifestation of that tjukurrpa site.
The Native Title Party submits that a plain reading of the evidence of Mr Muir does not seek to place particular emphasis on any particular manifestation of the tjukurrpa story being more or less significant than the other parts, each physical feature is simply one of a few manifestations of the site within the Tenement. The attempts by the Grantee Party and the Government Party to put more emphasis on one part of the tjukurrpa is of no assistance in determining whether the Tenement actually contains physical manifestations of sites of particular significance, which it clearly does.
As I have said, the evidence does not demonstrate any connection between Vivien Camp and the tjukurrpa. The primary difference between Tjiwarl’s supplementary submissions and its submissions in reply is the reliance in the latter submissions upon features other than the breakaway country and Vivien Camp, namely the small hill and the trees. The hill is almost certainly not within the determination area. Ms Hennessy found only one small area of elevation within the proposed tenement, other than the breakaway country. It is located in the south west, in an area marked as “Reserve”. It is fairly clear, from one of the maps sent with the Tribunal’s email dated 10 May 2019, that the reserve is in the extinguishment area.

THE PROPOSED GRANTEE’S SUBMISSIONS AND SUPPLEMENTARY SUBMISSIONS

The proposed grantee is a “small individual proprietor, covered by APLA indemnity insurance”. I infer that this assertion means that the proposed grantee may be indemnified against any claim against him by native title holders, arising out of his utilization of the proposed tenement. There would otherwise be no point in mentioning the matter. The proposed grantee indicates his intention, “where required”, to undertake heritage surveys for ground‑disturbing activities. He is also willing to enter into a “suitable Alternative Access Agreement on terms and conditions that are considered acceptable, fair and reasonable”.
The proposed grantee says that he is fully aware of the operation of the AH Act and the obligation not to disturb sites. I infer that he is expressing an intention to comply with that Act. He is willing to create a 300 metre “buffer zone” around the Vivien Camp site, “to completely protect any concerns from the Tjiwarl People”.
He submits that the proposed tenement has been the subject of previous mining tenures, including drilling, and that the expedited procedure was adopted in connection with those activities.
The proposed grantee’s intended operations are presently in their “infancy/early stages”. Setting aside the collection of information from previous exploration, there will be three phases:
·the collection of additional geophysical data, possibly by an electro‑magnetic survey of the surface of the area;
·identification of drill sites for “first pass drill holes”, at which stage heritage surveys would be conducted; and
·depending upon the success of the drill hole programme, diamond drilling.
The proposed grantee says that he is willing to consult with the native title holders and to “time and tailor” his exploration to, “best avoid and not interfere with any community or social activities of the Tjiwarl People and especially any camping activities”.
In his supplementary submissions the proposed grantee submits that there are “too many inconsistencies” in Tjiwarl’s argument, particularly as it concerns specific sites. He submits that whereas Vivien Camp was the main consideration in the objection, emphasis is now placed upon the breakaway country. He further submits that there are no registered aboriginal sites in the breakaway country. As previously mentioned, he submits that the breakaway country is one of the most explored areas of the proposed tenement. Exploration started in the 1970s. There have been mineral claims, prospecting licences, exploration licences and mining lease applications. At paras 9 and 11 the proposed grantee submits:
9. With all the past exploration on this [breakaway country], and this past activity has not interfered with the carrying on of Community/Social activities and furthermore has not interfered with sites of significance, then [the proposed grantee] is also submitting it will not change with his application and strongly believes this should attract the expedited process.
11. [The proposed grantee] believes the grant of the subject Tenement as per all the past mining tenements over this area (especially in the [breakaway country]) is highly unlikely to interfere with the carrying on of Community or Social activities of [Tjiwarl] or any other party or person claiming Native Title Rights.
I have already demonstrated the changes in Tjiwarl’s case as outlined in its various submissions. As to the proposed grantee’s statements of intention, particularly as they concern Vivien Camp and dealings with Tjiwarl concerning his operations, I see no reason to doubt that they are made in good faith. This view offers some re‑assurance concerning the likelihood of the interference contemplated in ss 237(a) and 237(b). However statements of intention may, in changed commercial circumstances, become burdensome. Further, there is the risk that, subject to any discretion vested in the State, the proposed tenement may pass to another holder who is not even morally bound by the proposed grantee’s statements of intention. There is also the problem identified by Tjiwarl that statements of intention should not affect the application of s 237 as a gateway to negotiations pursuant to s 31. I shall return to this matter.

THE STATE’S SUBMISSIONS and supplementary submissions

The State considers that the proposed conditions, including the special condition will assist in reducing the risk of adverse impact pursuant to ss 237(a) and (b). It also considers that the proposed grantee’s willingness to enter into a regional heritage agreement will ameliorate any such risk. The State invites the inference that the proposed grantee is willing to work with the native title holders to avoid disturbance to areas or sites of particular significance, that he is aware of his statutory obligations and that he intends to comply with them. It submits that I should assume that the proposed grantee will act in accordance with law. I have already said something about these matters.
The State then deals with Tjiwarl’s evidence and submissions. In addressing these matters, the State identifies the Tribunal’s task as determining, “on the basis of a predicative assessment”, whether there is a real risk that the proposed future act will have an adverse impact of the kind contemplated in ss 237(a) or 237(b). It may be more accurate to say that, in order to uphold the State’s assertion pursuant to s 29(7), the Tribunal must be satisfied that the proposed future act is not likely to have either of those adverse impacts.
Concerning Tjiwarl’s reliance on s 237(a), the State seems to accept that some community and social activities are disclosed by Mr Muir’s evidence. These include:
·Talbot Muir’s residence on the eastern boundary of the proposed tenement;
·hunting and camping by, amongst others, Aunty Gay Harris, Talbot Muir and his wife, Maurveen;
·visits to the area by native title holders and families and persons travelling through to other destinations; and
·concern to protect the country, including the proposed tenement because of its spiritual association with the Mingari and Tjilkamata tjukurrpa.
As I have said, I do not consider that Talbot Muir’s camping near to the eastern boundary of the proposed tenement constitutes community or social activities.
The State submits that there is unlikely to be direct interference with community or social activities. It relies upon assertions by the proposed grantee that his activities will be “low impact and non‑intrusive”, and that any ground‑disturbing activities will be conducted in a way which will not adversely impact on heritage sites, and will respect local Aboriginal cultural concerns.
As to concerns about protecting country and its spiritual association with Tjiwarl sites, there is no doubt that such activities would be community or social activities. However I see no reason to expect any interference with such activities. That question is different from that concerning areas and sites of particular significance, which matters are considered below.
Concerning s 237(b), the State accepts that Tjiwarl has identified two sites of significance to it, the Vivien Camp and sites which are manifestations of the Mingari and Tjilkamata tjukurrpa, a significant story for the native title holders. As to Vivien Camp, the State submits that there is no evidence to demonstrate that it is of particular significance to the native title holders, given that it is of relatively recent origin. As to the tjukurrpa sites, the State submits that they are only “generally placed” within the proposed tenement. It is also said that apart from such “general placement”, the only other significance is the location of a “particular tree”. As I understand it, the reference to a “tree” should be understood as a reference to a “type” of tree, not to a single tree. It is also said that there is no indication as to where, in the proposed tenement, such interference may occur. As to the likelihood of interference, the State refers, at para 32 of its original submissions, to paras 33.1 and 33.3 of those submissions. However there are no such paragraphs in the original submissions. It is likely that the reference is to some parts of paras 25.1 to 25.5 of those submissions, with which I have already dealt.
In its supplementary submissions, the State submits that the Tribunal may infer that Vivien Camp is located close to, but not within the determination area. It submits that Tjiwarl has not addressed the way in which any adverse impact upon Vivien Camp would impact upon the native title holders’ community or social activities, or upon any site of particular significance. The State submits at paras 6 to 8:
6.   The Native Title Party’s Supplementary Contentions do not address the core of the question: namely, whether an effect on the Vivien Camp will constitute either direct interference with community or social activities or interference with a site of particular significance. That is, there are no submissions as to the extent to which interference with the Vivien Camp, notwithstanding that it might not be on an area in which the Tjiwarl people actually hold native title, will affect an area over which they do, or activities they engage in on those areas.
7.   Halev Western Australia [(2015) 233 FCR 96] makes clear that sites within the tenement but outside native title holdings are relevant to the future act process, but only insofar as it can be demonstrated that there will be some effect in the area over which native title is held. So the Native Title Party must demonstrate that the Vivien Camp is, for example, an indelible part of community or social activities which take place on the tenement in order to displace s 237(a). There is nothing in the Native Title Party's Supplementary Contentions which makes good such a submission. Neither is there anything in the Native Title Party's First Contentions which supports an inference to this effect being drawn. The Vivien Camp is clearly relied upon as a site of particular significance, rather than as part of community or social activities. That being the case, the Government Party contends that the Vivien Camp has not been shown to be relevant to the evaluative process required by s 237.
8.   It is incumbent upon the Native Title Party to demonstrate with some precision how and why it is said interference is likely as it relates to the Vivien Camp. The Government Party submits that the Native Title Party has not done this, that there is insufficient evidence to demonstrate these matters, and otherwise reiterates its First Contentions at [27]-[36].
[Footnotes omitted.]
The word “displace” is problematic, but that may not matter for present purposes. Later in these reasons I shall discuss the State’s reliance upon the decision in Hale.
Concerning the breakaway country, the State accepts that such area is within the determination area. However it submits that Mr Muir’s affidavit provides no evidence as to its significance. The State further submits that in its supplementary submissions, Tjiwarl puts greater significance upon that area than it did in its earlier submissions, and that Mr Muir’s evidence establishes only that there is such an area, and that it is associated with the tjukurrpa. It further submits that there is no evidence as to the likelihood of adverse impact.

THE ambit of section 237

This case has been complicated by the fact that the proposed tenement overlaps part of the determination area and part of the extinguishment area. The inclusion in the proposed tenement of the unclaimed area poses no problem as it contains no areas which might be relevant to the operation of ss 237(a) and 237(b).
A number of issues arise as to whether conduct pursuant to the proposed grant and the impacts of such conduct must or may occur within the geographical boundaries of the proposed tenement, the determination area and/or the extinguishment area in order that such conduct or impact be relevant for the purposes of s 237.
In Hale, Barker J said at [111]‑[114]
111The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned - that is to say the land or waters to which the act in question - the grant of the tenement - relates. The same is to be said of the criteria to be regarded in paras (b) and (c).
112It is always going to be an evidentiary question as to whether or not an objector, even one who only has a registered native title claim over a portion of the land or waters the subject of the proposed act, will be affected in relevant ways by the act.
113Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
114It is not the function of this Court, particularly in a special case proceeding of this nature, to inquire into such questions of fact.

In Smith v Western Australia (2001) 108 FCR 442 at [15] French J (as his Honour then was) considered a decision of the Tribunal in which it had held that:
In relation to par 237(b), the Tribunal held there was no evidence to justify a finding that there was, within the proposed tenement, any area or site of particular significance, in accordance with their traditions, to the holders of native title on the land or in such close proximity as to be the subject of relevant interference.
This passage contemplates an area or site of particular significance in, or in “close proximity” to the proposed tenement. His Honour generally approved the approach taken by the Tribunal. See also Silver v Northern Territory at [35] (2002) 169 FLR 1 per Member Sosso.
The proposed grantee makes no submissions concerning this aspect. Concerning s 237(b) the State submits at para 26.4 of its original submissions that:
The area or site must generally be located within the proposed licence. An area or site outside the licence area may be taken into account if it can be shown that the relevant activities would directly and physically affect the area or site, and that activities off-site are an integral part of activities on-site; …
In order that a registered native title body corporate be a native title party, it need only hold native title over some part of the proposed tenement. Hence conduct within the proposed tenement may occur within or outside of the area over which native title is held. A claim may fail with respect to part of a claimed area either because the court is not satisfied that the claimant holds native title over that area, or because the court is satisfied that native title has been extinguished. The decision in Hale at [113] suggests that for the purposes of s 237, a future act might relevantly interfere with the conduct of community or social activities outside of the determination area. Similarly, there may be interference with areas or sites of particular significance outside of the determination area. It seems, however, that Barker J concluded that any interference must be in relation to the land or waters concerned, namely the land or waters to which the proposed future act relates. Barker J did not say that the relevant community or social activities had to be conducted within either the determination area or the proposed tenement. His Honour said only that the impact must be in relation to “the land or waters concerned.” His Honour effectively defined the term “land or waters concerned” as meaning the land or waters to which the proposed future act relates.
It is important to keep in mind that the references in ss 237(a) and 237(b) to the “land or waters concerned” is part of the description of persons who are holders of native title. The identification of those persons is for the purpose of identifying relevant community or social activities, and areas and sites of particular significance. Section 237 is concerned with conduct authorized by the proposed grant, regardless of geographical location. If the relevant community or social activities may be interfered with by an action pursuant to the proposed grant, then s 237 must be applied according to its terms, as is also the case with areas or sites of particular significance.
I reject the State’s submission that interference outside of the determination area will only be relevant for the purposes of ss 237(a) and 237(b) if it can be demonstrated that there will be some effect in the determination area. I see no justification for that proposition in the decision in Smith, or that in Hale. Nothing in those decisions supports the proposition that an impact upon community or social activity outside of the determination area will only be relevant if it has an effect inside the determination area. Similarly, there is no justification for the proposition that interference with an area or site of particular significance outside of the determination area will only be relevant if there is an effect inside the determination area.

temporal limitation

The State also submits that the fact that Vivien Camp was established in the 1980s and 1990s militates against a finding that it is a site of particular significance according to relevant traditions. In some circumstances, an area or site might acquire such status by virtue of a long history of use, occupation or veneration. In non‑indigenous cultures, many of the ancient sites associated with Judaism, Christianity and Islam are examples of this. Other areas or sites might immediately acquire such status as the result of a significant event. The attack on the World Trade Center in New York is an example, although not all such sites have such a dramatic claim to recognition. Sometimes, the significance of an event may not be realized immediately. Vivien Camp is in that category. It is associated with respect due to “significant elders” and memorializes a change in the native title holders’ way of life. That the relevant events occurred 20 or 30 years ago does not necessarily detract from their significance.

THE AH ACT, CONDITiONAL GRANT AND REGIONAL HERITAGE AGREEMENT

As is common in proceedings of this kind, the proposed grantee and the State urge the benefits of the AH Act, conditional grants and regional heritage agreements in protecting against the interference addressed in s 237. The native title holders generally do not accept that these mechanisms are likely to be helpful. Unfortunately, the parties rarely provide detailed consideration of their advantages and disadvantages for the case in question.
Whilst it is true that these proceedings are by way of inquiry, and not adversarial, it would be unreasonable for the parties to expect that the Tribunal should identify ways in which such mechanisms might be used in the case under consideration, how effective they may be in that context and the reasons why one or other of the parties might accept or reject those mechanisms. In proceedings of this kind, each party should consider the ways in which these mechanisms might be used to limit or avoid interference and any reasons for believing that they might be effective or ineffective, and submit accordingly. In the present case I have considered these matters in a general way, but I find little assistance in the submissions.

FEARED INTERFERENCE

Apart from general statements concerning the presence of the tjukurrpa throughout the tenement and beyond its boundaries, Tjiwarl points to five distinct areas in which the proposed grant may interfere. They are:
·the breakaway country;
·the water‑bearing trees;
·Vivien Camp;
·the small hill in the western part of the proposed tenement; and
·other hills in that area.

The breakaway country

The breakaway country is substantially within both the proposed tenement and the determination area. There is no suggestion that it is involved in community or social activities. However it is said to be linked to the tjukurrpa. I accept that the tjukurrpa is, itself, a significant aspect of Tjiwarl law and custom. There may well be some areas or sites associated with it within the proposed tenement. Some may be of particular significance to the native title holders. Although the significance of other areas and sites is described, Mr Muir says, concerning the breakaway country, only that it is, “associated with” the tjukurrpa. He does not identify areas or sites within the breakaway country which are of particular significance in accordance with the traditions of the native title holders. Nor does Mr Muir offer any basis for inferring that the breakaway country, as a whole, is of such significance. These are matters peculiarly within the knowledge of persons such as Mr Muir. The absence of any evidence concerning particular significance suggests that it has no such characteristics.
There is also no reason to believe that the proposed grant is likely to interfere with the breakaway country or areas or sites within it. As the proposed grantee has demonstrated, there have been numerous tenements of various kinds in that country. Had any significant interference occurred as the result of such activity, the native title holders would surely know about it. If so, they would have given evidence to that effect.
I find that the breakaway country is not an area or site of particular significance in accordance with the traditions of the native title holders. I also find that there is no area or site of such particular significance within the breakaway country. In those circumstances, I am satisfied that the proposed grant is not likely to interfere with any area or site of particular significance according to the traditions of the native title holders, whether the breakaway country is considered as a whole, or by reference to particular areas or sites within that country. There is no suggestion that community or social activities are conducted in that area.

Water-bearing trees

I proceed on the basis that at least some of the trees are within the proposed tenement, the determination area and/or the extinguishment area. I accept that traditionally, the trees have been used as a water source, and that they are part of the tjukurrpa. For present purposes, I am prepared to infer that they are of particular significance in accordance with the traditions of the native title holders. However, as I have previously observed, paras 20 to 22 of Mr Muir’s affidavit are ambiguous, so that it is impossible to know where the trees are located. They may be in the west or the east, or they may be throughout the proposed tenement, as suggested by the reference to Mingari and Tjilkamata fleeing through the desert. There is no suggestion that the grant of previous tenements has led to harm, such that the trees are at risk of extinction. There is no suggestion that any individual tree or group of trees is of particular significance. No doubt such trees die and are replaced. Again, one would have expected that had the grant of previous tenements or other activities led to significant interference, there would have been evidence to that effect.
It is unlikely that there will be any interference with such trees as contemplated in s 237(b). There is no evidence that the taking of water from trees is currently a community or social activity of the native title holders for the purposes of s 237(a). I do not understand Tjiwarl to submit otherwise.

Vivien Camp

Vivien Camp is located in the proposed tenement and in the extinguishment area. In its submissions in reply, Tjiwarl suggests that Vivien Camp is, in some way, related to the “manifestation of the tjukurrpa site”. As I have said, although Mr Muir links Vivien Camp to the “Tjiwarl story”, he does not link it to the tjukurrpa. However he asserts that it is a place of immense historical and social significance to the native title holders because it was the last campsite of significant elders, and one of the last camping places where people lived in the traditional way whilst also working on country. Nothing is said about the features of the “traditional way”, save that it seems to have involved the building of structures. Mr Muir asserts that Vivien Camp is also a place where the native title holders’ community or social activities are conducted. Those activities involve family visits, hunting and camping.
As to family visits and camping, I am satisfied that the proposed grant would likely not interfere with such activities. The proposed grantee has indicated that he is willing to surround Vivien Camp with a substantial buffer area. Such approach suggests that the proposed grantee does not presently expect that the area will be worth exploring. That view would be consistent with the fact that previous exploration has focussed on the breakaway country in the north‑east. Further, the native title holders’ visits and camping seem to be relatively informal. There is no suggestion that particular parts of the site are critical to such community or social activities. Hence I infer that it would be practicable for visits and camping to continue, even if exploration were being conducted within Vivien Camp. It seems unlikely that the whole site would ever be completely taken up with exploration activities, given their relatively limited scope.
The native title holders do not hold native title over the land on which Vivien Camp is located. It is unallocated Crown land, and any native title has been extinguished. If the native title holders have any right of access to the site, other members of the public have similar rights. Whatever the position in that regard, the native title holders must accept that they cannot exclude others, including the Crown, from entering the site and engaging in lawful conduct. Thus, even now, they have no real control over Vivien Camp. There will always be a risk of usage by others, which usage may be inconsistent with their community or social activities. Such conduct by other than the proposed grantee would not be interference as a result of the proposed grant. Mr Muir’s assertions in para 12, concerning drilling, pegging holes and digging trenches do not explain how such conduct might interfere with community or social activities. As I have said, there is little reason to believe that visiting and camping cannot co‑exist with mining exploration.
As to hunting, Tjiwarl is concerned that game may be frightened away from Vivien Camp, and that the native title holders’ hunting in the area will be inhibited by concerns for the safety of the proposed grantee and his employees. It seems that the hunting in question involves motor vehicles and firearms. As to game, it is likely that community or social visits would also tend to discourage game from remaining in the area. In any event hunting, as a community or social activity, is not limited to the area of Vivien Camp or, for that matter, the area of the proposed tenement. No doubt, game is always moving from place to place, and hunters follow the game.
As to any risk to the proposed grantee and his employees, there will also be some risk to other hunters, including native title holders. Tjiwarl cannot exclude other people from Vivien Camp, and so the native title holders must adjust their hunting activities accordingly. Hence I am satisfied that the proposed grant will not interfere with their community or social activities.
Mr Muir also asserts that Vivien Camp is an area or site of particular significance in accordance with the traditions of the native title holders. The evidence in this respect is quite limited. The relevant material is located in paras 5, 7 and 12 of Mr Muir’s affidavit. It is summarized at [13] to [26] above.
The proposed grantee makes no submissions concerning this aspect. In its original submissions, the State submits that evidence concerning its significance as an elders’ camping ground is insufficient to establish that it is an area or site of particular significance. In its supplementary submissions, the State asserts that Tjiwarl must show that any interference with Vivien Camp will “affect an area over which” the native title holders have native title. I have rejected this proposition.
Vivien Camp is one of several former camp sites. If that were all, it probably could not be described as an area or site of particular significance in accordance with traditions. However Mr Muir says that it was the last of the camps associated with the old people, and that it is of “immense historical significance to us and cultural significance as well because it is the last campsite used by significant elders”. Thus it is distinguished from other campsites.
One might, however, compare Mr Muir’s evidence concerning Vivien Camp with his evidence concerning the sites associated with the tjukurrpa. In the latter case, much more detail is supplied. The universal mystery of creation is addressed. I infer that those sites are more significant to the native title holders than is Vivien Camp, at least if Mr Muir’s evidence concerning the tjukurrpa is taken at its highest. As I shall explain, I do not fully accept that evidence.
Mr Muir’s use of the word “immense” is certainly appropriate to the description of an area or site of particular significance. On the other hand such a description not infrequently involves an element of hyperbole. In the end, however, I consider that I should accept Mr Muir’s evidence in this respect at face value. The other parties could have challenged his evidence and cross‑examined him on such matters. They did not do so. There is nothing inherently unlikely about the attachment of particular significance to places where significant forebears dwelt. I accept that on this basis, Vivien Camp is an area or site of particular significance in accordance with the traditions of the native title holders.
As to the likelihood of interference, the State points to the proposed grantee’s offer of the buffer area around Vivien Camp and his willingness to consult with the native title holders. It is, of course, encouraging to see the offer of such co‑operation. However, as I have said, good intentions may change when circumstances change. It is not always possible to foresee such change. From another point of view the offer may actually reflect a tacit recognition that the native title holders have genuine concerns which should be accommodated. If that be the case, there is really no reason why they should be deprived of their right to negotiate in good faith pursuant to s 31, simply by virtue of an unenforceable offer by the proposed grantee. The proposed grantee’s conduct may be evidence of good faith and co‑operation but, from the native title holders’ point of view, it may be no substitute for an enforceable agreement or the imposition of conditions upon the grant. In the present case, I am not inclined to accept the proposed grantee’s conduct as being an absolute answer to any apparent risk of interference, although it is a factor to be taken into account.
Mr Muir has the concerns outlined in para 12 of his affidavit, set out above. The meaning of the word “interference” has not received much attention in the cases. Relevantly, the Macquarie Dictionary (online) suggests that the word means:
3. to come into opposition, as one thing with another, especially with the effect of hampering action or procedure: these interruptions interfere with the work.
4. (of things) to strike against each other, or one against another, so as to hamper or hinder action; come into physical collision.
Similar definitions are offered in the New Shorter Oxford English Dictionary.
It seems that ss 237(a) and 237(b) contemplate the proposed future act leading to circumstances which will impinge upon the carrying on of the relevant community or social activities, or upon the characteristics or circumstances which have led to an area or site being of particular significance according to relevant traditions. For present purposes, it seems that the native title holders consider that drilling, pegging holes or digging trenches would be inconsistent with Vivien Camp’s status as an area or site of particular significance. Mr Muir does not explain why the native title holders should be concerned about such activity. However it is probable that the site’s importance reflects historical considerations. In our non‑indigenous society, when a site has been identified as being of historical significance, there is commonly a view that it should be maintained as it was when it acquired such significance. Hence I accept Mr Muir’s assertions in para 12 of his affidavit and infer that the native title holders would perceive such conduct to be inconsistent with the site’s historical significance.
Again, although I accept that the proposed grantee has offered in good faith to protect Vivien Camp by use of the buffer zone, the proposed grantee’s statements of intention do not provide a proper basis for concluding that the proposed grant is not likely to interfere with Vivien Camp. Again, my concern is about possible changes in circumstance, such as a changed view concerning the perceived worth of exploration, or a change in ownership of the proposed tenement. Again, it seems inappropriate that such statements should be seen as a basis for depriving the native title holders of the opportunity to negotiate in good faith pursuant to s 31. If the parties cannot agree in the course of the objection proceedings, then, if the prospect of interference is not found to be unlikely, the consequence is negotiation pursuant to s 31.

Having taken all relevant matters into account, I am not satisfied that the proposed grant is unlikely to interfere with an area or site of particular significance in accordance with the traditions of the native title holders, namely the area or site described in these proceedings as “Vivien Camp”.

The small hill in the west and other hills

In paras 19 to 29, Mr Muir makes specific assertions of significance concerning the western part of the tenement, particularly, the small hill referred to in para 19 and the hills identified in para 20. However the difficulty with this evidence is that Ms Hennessy identifies only one area of elevated ground in the proposed tenement, other than the breakaway country. Hence it seems that Mr Muir’s identification of multiple elevated features is inconsistent with Ms Hennessy’s expert opinion concerning the topography of the proposed tenement. Clearly, Tjiwarl intends that both Mr Muir and Ms Hennessy’s evidence be accepted. However the inconsistency cannot be ignored. If there is only one identifiable hill in the western area, then Mr Muir’s evidence of one small hill, which is the echidna feature, and other hills in the same area must be inaccurate, or at least confusing. The one hill identified by Ms Hennessy may be either the small hill or part of the group of hills, having regard to the evidence of Mr Muir. He suggests that the small hill is of particular significance as part of the tjukurrpa (as I infer) whilst the other hills are only “associated” with the tjukurrpa. As I have observed with regard to the breakaway country, a mere assertion of association is not sufficient to establish particular significance, at least in the context of this case in which the significance of some features has been more clearly articulated than that of others.
The inconsistency between Mr Muir’s evidence in paras 19 and 20 of his affidavit, on the one hand, and Ms Hennessy’s evidence, on the other, leave me unpersuaded that there is an identifiable hill or hills in the west of the proposed tenement which has or have the significance identified to it by Mr Muir. It is therefore not possible for me to identify an area or site of particular significance. I am satisfied that the proposed grant is not likely to interfere with any area or site located in the west of the proposed tenement, which area or site is of particular significance in accordance with the traditions of the native title holders.
I should say something about Mr Muir’s use of the word “interfered” in para 25, concerning the western part of the proposed tenement. Such use really begs the question. Mr Muir does not explain his meaning in using the word, or identify the way in which the integrity of the site would be damaged. There is no explanation of the term “cultural integrity”. Whatever reservations Mr Muir might have about disclosing culturally sensitive information, it is difficult to avoid the conclusion that had there been any particular sites of significance other than the small hill and the other hills, he would have said so. He was more forthcoming in relation to Vivien Camp.
Finally, at least in Tjiwarl’s original submissions, it made a more general submission concerning the tjukurrpa’s link to the proposed tenement. However, in its supplementary submissions and submissions in reply, it focussed on the specific features to which I have referred. It may be possible to assert a more general association between the tjukurrpa and the proposed tenement, without reliance on identified features with identified relevance. However such an argument must overcome the problems associated with identifying the relevant risk and its likelihood, where there are only generalizations concerning the identity of relevant locations and risks. This difficulty is accentuated when, as here, the native title holders have no rights over a large part of the proposed tenement. The difficulty is not that they cannot establish some risk. It is rather the possibility that interference caused other than pursuant to the proposed grant will cause similar interference. Such possibility must be taken into account in assessing the likelihood of interference by the proposed grantee, although it is, in no sense, definitive of the questions posed by s 237.

OUTCOME

I conclude that it is not unlikely that the proposed future act will interfere with an area or site of particular significance in accordance with the traditions of the native title holders, namely the area or site known as Vivien Camp. I therefore determine that the proposed future act does not attract the expedited procedure.

The Hon John Dowsett AM, QC
President
22 July 2019