Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Limited - [2019] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Buxton Resources Limited [2019] NNTTA 51 (12 July 2019)

Application No:

WO2018/1018

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

- and -

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WCD2011/002)

(native title party)

- and -

Buxton Resources Limited

(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:	Mr JR McNamara
Place:	Brisbane
Date:	12 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 cause major disturbance to land or waters – expedited procedure is not attracted
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Mining Act 1978 (WA) ss 61, 66 Native Title Act 1993 (Cth) ss 32, 75, 139, 142, 148, 151, 237
Cases:	Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd [2010] NNTTA 70 (Kurungal Native Title Claimants v Western Australia) Delores Cheinmora v Striker Resources NL; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Isaac Hale & Ors on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia and Mings Mining Resources Pty Ltd [2015] FCA 560 (Hale v Western Australia) Josephine Forrest & Ors on behalf of the Yi-Martuwarra Ngurrrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (Yi-Martuwarra Ngurrara v Western Australia) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People; Robin Boddington and Other on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (Tullock v Western Australia) Marputu Aboriginal Corporation RNTBC v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Maggie John and Ors on behalf of the Malarngowen People/Western Australia/Geological Resources Ltd; and Jack Britten and Ors on behalf of the Purnululu People/Western Australia/Geological Resources Pty Ltd [2013] NNTTA 151 (Malarngowen People v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tjurabalan Native Title Lands Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 6 (Tjurabalan v Inventum Resources) Victor Barunga and Ors on behalf of Wanjina-Wunggurr Dambimangari v State of Western Australia [2001] FCA 518 (Wanjina-Wunggurr Dambimangari v Western Australia) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (Walalakoo v Boadicea Resources) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Investmet Limited and Others and Another [2018] NNTTA 47 (Wanjina-Wungurr v Investmet Limited) Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Metalicity Limited and Another [2019] NNTTA 15 (Wanjina-Wunggurr v Metalicity Limited) Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (Weld Range Metals v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (Western Desert Lands v Teck Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representatives(s) of the native title party:	Mr Samuel Legge, Kimberley Land Council

Representative(s) of the grantee party:

Ms Susan Persichitti, Independence Group NL

Representatives(s) of the Government party:

Ms Aisyah Ishak, State Solicitor’s Office

REASONS FOR DETERMINATION

This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E04/2536 (the licence) to Buxton Resources Limited (Buxton Resources). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant in accordance with section 32(1) of the Native Title Act 1993 (Cth) (the Act), the State asserts the activities permitted under the licence are not likely to have the effects outlined in section 237 of the Act. That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of the native title claimant groups or native title holders (section 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (section 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (section 237(c)).
The President of the National Native Title Tribunal (the Tribunal), the Honourable John Dowsett AM, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence is for 21 graticular blocks, approximately 68.91 square kilometres, and is located near Square Top Hill, approximately 86 kilometres north of Derby in the Shire of Derby-West Kimberley. If granted, the initial term of the licence will be five years, and is capable of being renewed (sections 61(1) and (2) of the Mining Act 1978 (WA) (the Mining Act)).
The licence is located within the area of the Wanjina-Wunggurr Dambimangari determination (WCD2011/002) (see Wanjina-Wunggurr Dambimangari v Western Australia). An overlap analysis generated by the Tribunal’s geospatial services shows 82.96 per cent of the licence area is located within the area of the Wanjina-Wunggurr Dambimangari determination in which native title does not exist. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC (WNTAC) holds exclusive native title rights and interests in 3.41 per cent of the licence area and non-exclusive rights and interests in 13.63 per cent.
According to the National Native Title Register extract, where WNTAC holds exclusive native title rights and interests, the native title holders have the “rights to possession, occupation, use and enjoyment of the land” (see [5] of the extract). Where non-exclusive rights and interests have been determined, the extract indicates these are:
(a)the right to enter, travel over and remain on the land;
(b)the right to live and company on the land;
(c)the right to hunt, fish, gather and use the resources of the land for personal, domestic and communal needs;
(d)the right to light fires for domestic purposes but not for the clearance of vegetation;
(e)the right to take and use water from the land; and
(f)the right to engage in cultural activities on the land including; visiting and protecting places of cultural or spiritual integrity, conducting ceremony, holding meetings, participating in cultural practices relating to birth and death, passing on knowledge of these places, maintaining and protecting such places from physical harm.
WNTAC exercised its right to lodge an objection, in accordance with section 75 of the Act, against the State’s assertion that the expedited procedure applies, and argues the expedited procedure should not apply as interference or disturbance with one or more of the criteria in section 237 of the Act is likely. The State and Buxton Resources argue the expedited procedure should apply.
If I find the expedited procedure applies, the licence can be granted without negotiations between the parties. If I find it does not apply, Buxton Resources and the State must negotiate in good faith with a view to reaching an agreement with WNTAC about the proposed grant of the licence.
I must base my decision on the section 237 criteria. In addressing section 237 of the Act, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
For the reasons outlined below, my determination is that the expedited procedure does not apply to the licence.

Conduct of the inquiry

The Tribunal’s inquiry is undertaken pursuant to sections 32(4) and 139 of the Act, as a result of WNTAC’s expedited procedure objection application. The conduct of the inquiry proceeds according to directions made by the Tribunal. Directions were first made in this matter by myself on 19 February 2019.
In accordance with Direction 1, the State submitted the required documents.
In accordance with Direction 2, WNTAC provided its contentions and evidence on 14 March 2019. On 19 March 2019, the Tribunal received a request from the State that the matter be dismissed pursuant to section 148(b) of the Act, as it advised it was not in receipt of any such contentions or evidence. In response, the Tribunal provided WNTAC’s contentions and evidence advising that it had been received in compliance with Direction 2. It appears that WNTAC had incorrectly entered the State’s email address in its initial correspondence. Upon receipt of WNTAC’s materials, the State’s dismissal request was withdrawn on 20 March 2019.
On 21 March 2019, Buxton Resources provided its contentions a day ahead of the date of compliance for Direction 3.
In compliance with Direction 4, the State submitted its contentions, a book of documents and a list of authorities on 29 March 2019.
On 15 April 2019, following WNTAC’s failure to comply with Direction 5 (requiring their contentions in reply by 12 April 2019), the Tribunal requested WNTAC’s advice as to whether they intended to comply. WNTAC’s reply was received later that day and I accepted the delayed compliance.
On 16 April 2019, the State contacted the Tribunal querying whether Buxton Resources had provided contentions in compliance with Direction 3 and requested a copy if it had. A review of Tribunal files showed that when Buxton Resources lodged their contentions, the State had not been included in its correspondence. This occurred despite the fact that the directions in all Tribunal matters require each party to provide materials “to the Tribunal and all other parties”.
After being provided with a copy of Buxton Resources’ contentions, the State sought leave to provide an amended statement of contentions on or before 24 April 2019. In response, WNTAC sought to provide a reply to any amended contentions of the State on or before 1 May 2019.
Noting the requirement for procedural fairness and in consultation with the parties, on 18 April 2019, I amended the directions allowing the State and WNTAC to re-lodge their contentions and reply, respectively, and therefore disregarded the versions referred to in [14] and [15] above. Later on 18 April 2019, the State lodged their amended contentions and on 29 April 2019 WNTAC re-lodged its reply unamended.
The Tribunal was advised the parties were unable to provide an Agreed Statement of Facts and Issues in compliance with Directions 6. Further, the parties requested the listing hearing and hearing be vacated. After having considered the material before me, I was satisfied it was appropriate to determine this matter ‘on the papers’ as permitted by section 151 of the Act. As such, the remaining directions were vacated.

Material before the Tribunal

WNTAC’s material

WNTAC submitted a statement of contentions along with the joint affidavit of Ms Janet Oobagooma and Mr Donny Woolagoodja (the Joint Affidavit) affirmed on 5 February 2018. WNTAC also submitted a statement of contentions in reply, responding to submissions made by Buxton Resources and the State.

Buxton Resources’ material

Buxton Resources submitted a statement of contentions. As discussed below, a redacted copy of the ‘Statement to Accompany Exploration Licence Application’ prepared by Buxton Resources was included in a Book of Documents lodged by the State.

The State’s material

In compliance with Direction 1, the State submitted, amongst other things, results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS) which indicates there are two other heritage places recorded under the Aboriginal Heritage Act 1972 (WA) (the AHA) in the licence area:
·Cone Bay Axe – ID 14201; and
·Cone Bay 1 – ID 14202.
The AHIS results indicate there are no registered sites within the licence area. The underlying tenure of the licence is freehold land (82.96 per cent), unallocated crown land (10.48 per cent), and a Class C Aboriginal Reserve (3.8 per cent).
In its contentions, the State identifies that the area has been subject to three temporary reserves (at [10]) but make no submission regarding their effect or relevance to this inquiry, if any. I conclude that they have no effect or relevance.
The State contends that, in addition to various endorsements and conditions, a condition will be placed on the licence requiring the grantee party to execute a Regional Standard Heritage Agreement (RSHA) within certain timeframes, if requested by WNTAC.

Preliminary evidentiary matters

WNTAC’s Joint Affidavit

The Joint Affidavit lodged by WNTAC appears to have been drafted in relation to Tribunal matter WO2017/0412 for tenement E04/2406. This is not an issue that has been addressed in WNTAC’s submissions, nor has it been noted by the State or Buxton Resources.
The Tribunal is entitled, as an administrative decision-maker, to have regard to evidence that has been given in another proceeding, provided the evidence is relevant (see Weld Range Metals v Western Australia at [149]). Noting that an inquiry of this nature relates to the likely impact or disturbance in relation to ‘the land or waters concerned’ (see section 237 of the Act), in this matter I consider the evidence relevant if it largely corresponds to the area of E04/2536. In the absence of WNTAC providing such information, the Tribunal prepared mapping, which indicates that the area of E04/2406 (the tenement the focus of the Joint Affidavit) is mostly within the area of E04/2536 (the tenement the focus of the current inquiry). A portion of the area of E04/2406, along the southern boundary, is outside the area of E04/2536. Despite this, I am satisfied that the Joint Affidavit is relevant for the purposes of this inquiry as it relates to the area of the licence subject of this inquiry.
At [1] of the Joint Affidavit, Ms Oobagooma and Mr Woolagoodja identify themselves as native title holders and senior Traditional Owners for the licence area of E04/2406. They also state that they are the people responsible for speaking for that licence area. Given my finding above at [27], I also accept their authority to speak on behalf of the native title holders in relation to the area of E04/2536.

Section 142 Documents

As mentioned above at [4] and [27], I found it necessary in the course of this inquiry to request the assistance of the Tribunal’s geospatial services to prepare an overlap analysis and a map. The importance of these documents to the inquiry are outlined later in this decision.
In accordance with section 142 of the Act, these documents were provided to the parties for their inspection and submission. All parties confirmed receipt of these documents and advised of their intention to not provide additional submissions.

Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title party?

To find section 237(a) interference is likely, there must be direct and substantial interference with social or community activities (see Yindjibarndi v FMG at [16]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]).

What community or social activities does the native title party undertake on the licence?

The evidence provides that the licence is in close proximity to the community of Cone Bay. WNTAC indicated that the community is located within 500 metres of the licence area (Reply at [8]). It is mentioned that the native title holders walk from the licence area to Cone Bay “really easily, it is very close” (see Joint Affidavit at [6]).
The Joint Affidavit identifies specific families who are said to live in this community (at [5]), and the evidence indicates that native title holders travel to and live in the community during the dry season every year (see Joint Affidavit at [6] and contentions at [6]).
The State accepts that the proximity of a community may indicate that activities are undertaken more frequently in an area adjacent to it, however, it notes that the evidence must show that community and social activities are actually undertaken on the licence area on a regular basis (State’s contentions at [45]). I accept this analysis and, for the reasons below, I am satisfied that some of these activities are undertaken on the licence area on a regular basis.
Activities
WNTAC contends that, within the licence area, the native title holders undertake activities such as hunting, fishing, gathering resources, camping, and intergenerational teaching. I am satisfied that these activities arise from the registered native title rights and interests outlined above at [5].
Fishing and camping
The Joint Affidavit outlines that the native title holders walk, from the Cone Bay community, to the licence area to camp and fish (at [6]). Further, it is stated that barramundi, salmon, swordfish, stingray and crab are caught and eaten (Joint Affidavit at [6]).
The evidence locates a specific place in the licence area (depicted on the map attached to the Joint Affidavit, identified by elevation identifier ‘207’) where the native title holders “go fish and camp very often” (Joint Affidavit at [7]). It is stated that during the dry season, the native title holders will be out at this crossing every day fishing and camping (Joint Affidavit at [7]).
From its contentions, the State appears to accept the activities above occur in the licence area (at [48]). However it is not satisfied that the evidence outlines whether these activities can be undertaken elsewhere in nearby areas outside the tenement; why these particular areas are required for the activities; and, how much of the licence area is required for these activities (see State’s contentions at [48]).
In response, WNTAC submits that the licence area is important and used more frequently (than other areas further away) for conducting these activities because of its proximity to the community of Cone Bay and, specifically, because it can be accessed by foot. It is stated that this is especially important for those native title holders without access to vehicles (Reply at [9]). Further, WNTAC indicates this is particularly important “in times of the year where much of their country may not be accessible due to weather events” (Reply at [9]).

I accept that the fishing and camping activities occur in the licence area and that the proximity of the nearby Aboriginal community makes the use of the tenement area a more regular occurrence. The regular use supports a finding that interference is more likely. The interference must be considered in light of the Buxton Resources’ proposed activities, which are discussed below from [43].
Hunting and gathering resources
In relation to the hunting and gathering activities, the State expressed the same position as outlined above at [38]. Contrary to the State’s position, I find that insufficient information has been provided by WNTAC in relation to the stated activities of hunting and gathering resources. Specifically, I note the lack of details relating to: the frequency of the activities; who partakes in the activities; why this particular area is required and how much of the area is required for the activity.
Other than general references in the Joint Affidavit to “hunt” (see [6]) and locating “animals” (see [6] and [8]) in the licence area, no further details are provided in WNTAC’s evidence. In relation to gathering resources, as being a separate activity to hunting or fishing, I am unable to find any references in the evidence of the resources being gathered in the licence area. As such, I am not satisfied that WNTAC has established these activities occur in the licence area.
Intergenerational teaching
The Joint Affidavit indicates that “kids” are often taken to the licence area where they are taught about the area, learn about country and taught about the rock formations on country (at [7]).
The State’s position is that there is insufficient evidence provided in relation to the intergenerational teaching activities. Given that paragraph [7] of the Joint Affidavit contains the only explicit evidence regarding the teaching, I am not satisfied that sufficient evidence has been provided to establish this activity occurs in the licence area.

What activities does Buxton Resources propose to undertake on the licence?

Whilst Buxton Resources has provided contentions in this matter, very limited information has been provided about the intended activities on the licence. As part of its contentions, the State has provided a copy of the statement provided by Buxton Resources which accompanied its application for the licence (see GVP Document 4). As this statement shows, Buxton Resources’ target minerals for the licence are copper, nickel, gold and base metals. The first two years of its exploration program outline the intention;
(a)to gather and review existing geophysical and historical data, satellite images and mapping of the licence;
(b)to undertake geological reconnaissance including field mapping, rock chipping and soil sampling;
(c)after reviewing the above, to identify target areas for further exploration; and
(d)the above processes “may eventually lead to drilling”.
The stated aim for the program is:
… to identify drilling targets and to implement a drilling, assaying and review program capable of providing thorough evaluation of the targets identified.
Given the above, I have accepted that the intended activities of the Grantee Party range from the review of existing data to the implementation of a drilling program.
WNTAC’s Reply notes that the above information relates to only the first two years of the proposed initial five year term of the licence (at [31]). On this basis, it is submitted that it is appropriate for the Tribunal to presume that Buxton Resources will exercise the full suite of rights conferred by the grant under section 66 of the Mining Act (at [31]). Such a presumption is usually engaged in situations where the grantee party has not provided contentions (see Silver v Northern Territory). In addition, the Tribunal has also adopted the presumption where the grantee party’s contentions are so vague as to be of little assistance to the inquiry (see Wanjina-Wunggurr v Metalicity Limited at [9]-[11]). Whilst I agree that the details of Buxton Resources’ intentions leave much to be desired, I do not accept the circumstances in this matter to be synonymous to the above scenarios. I do note however, that the lack of indication of where these activities are intended to be undertaken may be a relevant factor for consideration later in this decision.

Is the grant of the licence likely to interfere directly with the community or social activities of the native title parties?

As previously noted, the determination of whether direct interference is likely involves an evaluative judgement that the future act is likely to be the proximate cause of the interference. Further, the interference must be substantial and not trivial in its impact on community or social activities (see Yindjibarndi v FMG). The assessment is also a contextual one, taking into account the parties’ intentions and factors that may already have impacted on those activities (see Smith v Western Australia at [27]).
Proximity of community
The Tribunal has previously found that the proximity of an Aboriginal community could lead to a finding that social and community activities were likely to be undertaken more frequently in the area affected by a tenement compared to areas further away from the community (see Malarngowem People v Western Australia at [42]). Examples of Tribunal cases where the proximity of an Aboriginal community was considered relevant include:
(a)Kurungal Native Title Claimants v Western Australia, where the evidence demonstrated the Aboriginal community was approximately five kilometres from the proposed licence (at [31]);
(b)Malarngowen People v Western Australia, where an Aboriginal community was located less than five kilometres from the proposed licence (at [40]); and
(c)Yi-Martuwarra Ngurrara v Western Australia, where two Aboriginal communities abutted the tenement with another community being within ten kilometres (at [43]).
As previously mentioned, the Aboriginal community of Cone Bay has been estimated to be approximately 500 metres from the licence area. Given this, I accept that the licence area may be the subject of more frequent community and social activities and, as such, the likelihood of Buxton Resources’ activities interfering with such activities is more likely.
Previous mining/exploration activities
The Tribunal has held that the existence of prior mining (including exploration) activities which have in the past or currently affect the native title parties’ community or social activities may be taken into account in assessing whether the grant is likely to further affect such activities (see Smith v Western Australia at [26]-[28]). The AHIS results indicate that no previous tenements have been granted over the licence area. As such, there is no evidence before me to suggest there has been or currently is any appreciable effect on WNTAC’s community or social activities from exploration or mining activity (see Kurungal Native Title Claimants v Western Australia).
WNTAC’s submissions
I note the Joint Affidavit does not contain any evidence addressing how the grant will interfere directly with the activities stated to occur in the licence area.
Despite this, WNTAC’s submissions at [7] outline the following in explaining how Buxton Resources’ activities “may” and “is likely” to interfere with the community and social activities of the native title holders:
In the event that the Grantee party use the area without the knowledge of the NTP (including through the use of machinery or vehicles within the Tenement Area when exploring) it may disrupt the movement habits of the wildlife which access the Tenement Area and is likely to interfere with the willingness of members of the NTP to access the area and undertake the community activities, including intergenerational teaching of natural markers of country, which is outlined in the evidence provided.
The State contends that the possibility of disruption to wildlife is unlikely to have a substantial impact on the native title holders’ activities (State’s contentions at [53]).
I note that a similar argument regarding the impact of exploration activities on wildlife was considered in the matter of Tjurabalan v Inventum Resources. The evidence in that matter appeared to feature the “unique abundance of wildlife” to a greater extent than I have observed in this matter (see Tjurabalan v Inventum Resources at [11]-[12]). Despite this, the Tribunal found there was nothing which clearly indicated that if such wildlife disruption occurred it would amount to substantial interference with the community and social activities of the native title holders. There is nothing in the Joint Affidavit to support such an assertion in this matter. Given this, I have formed a similar view as expressed in Tjurabalan v Inventum Resources.
In relation to WNTAC’s second point regarding the “willingness of native title holders to access the area and undertake the community activities”, there is nothing in the Joint Affidavit to support this contention. Without such evidence I am unable to find that this matter is likely to have a “substantial” impact (see Yindjibarndi v FMG).
In its reply, WNTAC asserts that direct interference is highly likely given that the community and social activities and Buxton Resources’ exploration activities are both likely to occur within the licence area during dry season. Whilst the evidence does not expressly outline the effects wet season and other weather conditions have on the licence area, I am satisfied that the number of references indicate they are relevant factors in this area (for example, [6] to [7], [9] of the Joint Affidavit). As such, I accept it may be likely that the native title holders and Buxton Resources may wish to utilise the licence area at the same time, increasing the chances of interference with the native title holders’ community and social activities.
Buxton Resources’ intentions
Whilst Buxton Resources’ contentions do not provide indications of their intended exploration activities, they provide some general assurances including three specific to the matter of community and social activities (at [8] to [10]). Buxton Resources indicates:
(a)WNTAC will not be excluded from conducting any community or social activities unless they are intended to be conducted in an unsafe area for such activities;
(b)should WNTAC wish to access any area deemed unsafe, Buxton Resources will consult with them to seek a mutually-agreeable arrangement; and
(c)Buxton Resources will notify WNTAC if any of its exploration activity is like to “restrict the gathering of bush tucker, medicines and hunting of game” and will consult with WNTAC about ways to minimise any disturbance.
In response to the above, WNTAC asserts that Buxton Resources’ lack of serious attempts to consult, willingness to participate in cultural heritage or provide information about how potential interference may be mitigated (other than complying with its statutory obligations) is also relevant to this inquiry.
As noted by the State, in the absence of evidence to the contrary, the Tribunal will assume that a grantee party will not act in breach of relevant statute law, regulations or conditions imposed upon them (State’s contentions at 20, citing Silver v Northern Territory at [24]). There appears to be little reason to doubt that Buxton Resources’ assurances outlined above at [59] are made in good faith. I note that whilst such assurances are encouraging, they are not the subject of a binding contract nor would they bind a holder upon transfer of the tenement. Given these possibilities, I am unable to accept the assurances as entirely mitigating of the risk of interference of the kind referred to in s 237.
Size of tenement
In addition to the above matters, I note that the size of the licence is 68.91 square kilometres and the area of the Wanjina-Wunggurr Dambimangari determination area is 27,290.26 square kilometres. In certain cases, the Tribunal has determined that where the size of the licence area is small relative to the totality of the native title area, the likelihood of interference with community and social activities is low (see, for example, Western Deserts Lands v Teck Australia). In this case, however, I am of the view that the proximity to an Aboriginal community (as discussed above at [47] to [48]) makes interference more likely.
Regional Standard Heritage Agreement
The State advises that should the licence be granted, it will place the following condition on the licence:
In respect of the area covered by the licence the licensee, if so requested in writing by Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC, the registered native title body corporate in respect of the Dambimangari determination area (the “native title party”), such request being sent by pre-paid 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 tile 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, 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’.
The State submits that direct interference with WNTAC’s activities is unlikely as, if WNTAC chooses to invoke the RSHA condition, then consultation and heritage survey processes contained within the agreement will “provide some protection for sites” (at [55]).
In response, WNTAC notes that RSHAs do not necessarily require any consultation in relation to “low impact” exploration activities (Reply at [22]). For this argument to be relevant to this point in the inquiry, I would have had to have been satisfied that the evidence sufficiently explained how Buxton Resources’ intended activities, including those of “low impact”, would interfere with the native title holders’ community and social activities. As previously stated, I have not been satisfied of that.
WNTAC also identifies that Buxton Resources has not expressed a willingness to negotiate and potentially enter into the Kimberley Land Council’s Heritage Protection Agreement (HPA) (WNTAC Reply at [34]). It is noted that the HPA contains standard terms for undertaking heritage protection in the Kimberley region and this has been provided to Buxton Resources.
The Tribunal has previously accepted that the RSHA may have some relevance to section 237(a) of the Act, even though it is “designed principally to deal with issues arising under s 237(b)” (Tullock v Western Australia at [48]). In Western Deserts Lands v Teck Australia, I accepted that, because ground disturbing activity is likely to trigger the consultation process under the RSHA, this may provide an opportunity for consultation in relation to any community or social activities occurring in the area. However, I do note WNTAC’s response (summarised above), and the advice that RSHAs from other regions are not endorsed by WNTAC (see Reply at [20]). As such, I am unable to find the proposed RSHA condition is likely to impact the possibility of interference with the native title holders’ community and social activities in this matter.
Conclusion
Taking into account the lack of evidence regarding how exploration activities may impact the native title holders’ activities, as well as the above contextual factors, I find that the act is not likely to interfere directly with the carrying on of community and social activities under section 237(a).

Section 237(b): is the grant of the licences likely to interfere with areas or sites of particular significance to the native title holders?

The considerations for section 237(b) are outlined in Yindjibarndi v FMG (at [17]-[18]). An area or site of “particular significance” is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34-35). The evidence must identify an area or site exists on the licence; explain its significance; distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions for an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (see Yindjibarndi v FMG at [17], [125]).

What area or sites have the native title parties identified in relation to the licence areas?

The licence area is described in the Joint Affidavit as being “part of the sacred Wungurr area” (at [5]), and as containing “important sites” (at [9]) and “a lot of very special places” (at [20]).
Specifically, WNTAC has identified the following as sites or areas within the licence area:
(a)ceremonial stone arrangements;
(b)burial sites; and
(c)cave systems with Wanjina rock art.
I also note that the Joint Affidavit makes mention of men’s and women’s sites (at [12]). Given there is limited further detail about these sites, and they are not mentioned in WNTAC’s submissions, I have not addressed these sites further. Suffice to say, should those sites be considered to be of “particular significance” to the native title holders, the evidence provided is insufficient to demonstrate this.

Are any of the identified areas or sites of particular significance to the native title party?

Ceremonial stone arrangements

WNTAC identifies there are ceremonial stone arrangements located all along a road in the southern part of the Tenement Area near the coast (Joint Affidavit at [9]). Along with these stone arrangements, the Joint Affidavit also makes reference to rock formations (at [8]). For the sake of clarity and consistency, I adopt the approach taken by the State that infers that the reference to “rock formations” is a reference to the stone arrangements (see State’s Contentions at [65]).
The Joint Affidavit outlines that the stone arrangements were put there by the old people, by Larrinyuwarr (at [9]). Larrinyuwarr is described as the old man caretaker spirit of the land and that this is his country (Joint Affidavit at [16]). The stone arrangements are said to tell the native title holders important information about the cyclone season, shelter, creation and ceremony (Joint Affidavit at [9]). Further, the stone arrangements are the subject of teachings to the younger generation and show people where to find water, animals and important sites (Joint Affidavit at [8]). It is said that the stone arrangements must not be disturbed as they are considered to be sign posts for the country (see [9]).
Based upon the above evidence, the State has accepted the stone arrangements to be of significance, but seemingly not of “particular significance”, to the native title holders (State’s contentions at [66]). As outlined above, for an area or site to be considered of “particular significance” it must be established that it is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34-35).
Given that the stone arrangements provide information about creation, details relevant for survival (such as weather patterns, shelter, water and food), act as a marker for country, and are specifically the subject of transmission of knowledge to the next generation, I am satisfied the evidence has established these to be of particular significance.
As noted above at [72], the stone arrangements are said to be located in the southern part of the Tenement Area “near the coast” (see [9] of the Joint Affidavit). As I noted earlier, the Joint Affidavit appears to be drafted for the purposes of a previous tenement and objection matter tenement and objection matter. Tribunal mapping indicates that the southern boundary of the licence subject of this inquiry differs from that of the previous tenement. However, the southern boundary of the licence appears to still contain the entirety of the coast line, which was also contained within the previous tenement. As such, I am satisfied that the stone arrangements are within the area of the licence subject to this inquiry.

Given the description of the location of the stone arrangements, Tribunal mapping indicates these stone arrangements would be located within the Yampi Defence Area (as the Yampi Defence Area includes the area to the coast line and amounts to 91.02 per cent of the tenement area). In the native title determination proceedings, the Federal Court determined that native title does not exist in the Yampi Defence Area (see Schedule 3, cl 1(a)) of Wanjina-Wunggurr Dambimangari v Western Australia). Whilst none of the parties noted this, it is an issue worth examining further.
In relation to this issue, I adopt the analysis outlined in Wanjina-Wunggurr v Investmet Limited at [10]:
What Hale v Western Australia has confirmed is that the scope of the Tribunal’s inquiry is the area specified in the s 29 notice… It is not the case that the native title party only has standing to lodge an objection, and the Tribunal only has jurisdiction to make a determination, merely in relation to the percentage of the area specified in the s 29 notice where native title has been determined to exist. Section 32(4) of the Act relevantly state the ‘Tribunal must determine whether the act is an act attracting the expedited procedure, by reference to the definition in s 237.
It follows and was outlined in Hale v Western Australia at [113]:
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of the 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 area 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 a factual question for inquiry and determination by the arbitral body.
Given the scope of the Tribunal’s inquiry is the area specified in the s 29 notice, I accept the evidence of the stone arrangements in this inquiry. In doing so, I note that neither Buxton Resources nor the State provided submissions on this issue and, as such, a different approach has not been suggested.
Burial sites
WNTAC states there are two burial sites in the licence area (see [10] of the Joint Affidavit). One is stated to be at the crossing at Cone Bay and the other is at the area marked as an “other heritage place” with the identification number of 14202 in the north east of the licence (Joint Affidavit at [10]). It is stated that these are important sites because the old people are buried there – this is later supplemented by the additional information that the sites are of ancestors of two senior members of the native title holders (Reply at [15]). Finally, the Joint Affidavit provides that there would be “trouble” if the site is disrupted or anything is taken from it (at [10]).
The State’s assessment of this evidence is that it is too general and, whilst it may be a significant site, the evidence has not satisfied the requirement to be of ‘particular significance’ (State’s contentions at [70]-[71]). In response, WNTAC asserts that the particular importance of burial sites “should be self-evident” (Reply at [14]). WNTAC then refers to a number of previous decisions, where it is said that the Tribunal has determined that burial sites may be of particular significance (Reply at [15]). It appears that all of the decisions listed relate to a common area known as Napier Range and, in two of those matters, the burial sites appear to have been considered as forming only a part of the reason why that area or site was determined to be of particular significance.
Whilst I accept that the burial sites are likely to be of cultural significance to the native title holders, I am not satisfied that sufficient evidence has been provided indicating their “particular significance” as required. As per Yindjibarni v FMG, given that this requirement is a precondition for the purposes of a section 237(b) inquiry, assessing whether the grant of the licence is likely to cause interference with these sites is unnecessary.
Cave systems with Wanjina rock art
The Joint Affidavit states that the river system is very important to WNTAC and that it runs through the licence area (at [13]). There are said to be caves in the river system where rare bats live and in which Wanjina rock art is contained (Joint Affidavit at [14]). The bat is identified as one of the totems for the area. Finally, it is stated that there would be significant consequences if someone went “digging into this water” (Joint Affidavit at [13]).
The State argues that WNTAC’s evidence is not sufficient to establish the cave systems are of particular significance to WNTAC (at [72]). In response, WNTAC refers to the “cultural protocols and spiritual and physical repercussions” of interfering with the sites (Reply at [17]). In referencing these cultural protocols and repercussions, WNTAC points to specific paragraphs of the Joint Affidavit.
From my reading of those paragraphs, they do not appear to directly relate to the cave systems and instead appear to relate to WNTAC country more generally. Further, I accept the State’s view that insufficient details have been provided by WNTAC. Specifically, I am not satisfied that the nature of the cave systems’ significance has been sufficiently explained (as per Silver v Northern Territory). Further, I note that satisfying this requirement is considered a precondition of a section 237(b) inquiry and, given that it has not been meet, it is not necessary to assess whether the grant of the licence is likely to cause interference with the cave systems (see Yindjibarndi v FMG).

Is the grant of the licence likely to interfere directly with the areas or sites of particular significance to the native title party?

As outlined above, I have determined that WNTAC has established the stone arrangements to be of particular significance to the native title holders. As per Silver v Northern Territory, when evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders.
WNTAC submits the stone arrangements must not be disturbed (Joint Affidavit at [9]). I note that no further detail is provided. Nor is there a definition of what “disturbance” means to the native title holders in terms of the stone arrangements. Despite this, I note the Joint Affidavit was provided in the context of an inquiry contemplating proposed exploration activities and their potential interference with native title holders’ sites of particular significance. Given this, and noting other descriptions of the native title holders’ laws and traditions in this regard, I infer that the native title holders perceive the grant of the licence to be inconsistent with protecting and respecting the site’s significance (see Joint Affidavit at [9], [11], [16] and [18]). For example, the Joint Affidavit outlines that the taking of rocks is prohibited and accessing the country without calling out to the spirits can lead to trouble (at [16] and [18]). Buxton Resources’ activities outlined above at [45] and [46] appear likely to be at odds with those laws and traditions.
Despite the abovementioned evidence, Buxton Resources’ contentions are largely focussed on the type of interference contemplated by section 237(a). There is no acknowledgement of the stone arrangements nor are any assurances, like those mentioned above at [59], made in relation to minimising the risk of interference to the site.
Even if this was not the case, the State asserts the imposition of endorsements and conditions upon the grant (including the RSHA) and the AHA provides sufficient protection to prevent interference with any area or site of significance (State’s contentions at [81]-[82], [85]-[87]).
Endorsements and Conditions (including RSHA)
In asserting that section 237(b) interference is unlikely, the State points to its proposed endorsements and conditions as being able to mitigate any disturbance (see [81]). Specifically, the State asserts these endorsements and conditions include the following requirements:
(a)the rehabilitation of land following completion of exploration;
(b)the removal of all waste materials from the land prior to or at the termination of exploration;
(c)the protection of native vegetation; and
(d)the management of water resources (State’s contentions at [81]).
It does not appear that WNTAC has addressed these endorsements and conditions in its reply, other than the proposed RSHA condition (discussed below). Nonetheless, my reading of the endorsements and conditions are that they are largely rehabilitative in nature. Specifically, I am not satisfied that they will materially impact my assessment in relation to the stone arrangements as those that may be classed as “preventative” are actually focussed on native vegetation or water resources. The exception is perhaps Condition 3 relating to the need for approval from an Environmental Officer prior to the use of any surface disturbing mechanised equipment. However, I have not been provided with any details of how this approval process would ultimately impact the risk of interference to WNTAC’s sites of significance. As such, I find the conditions are of little assistance to my assessment.
The State again states that if WNTAC chooses to invoke the proposed RSHA condition, the consultation and heritage survey process will provide further protection for sites. As the Tribunal has noted in previous cases, it is generally understood that an RSHA requires the conduct of surveys only where ground disturbing activity occurs (see, for example, Wanjina-Wunggurr v Investmet Limited at [34]). Given that WNTAC has outlined that the stone arrangements must not be disturbed and even the taking of items located on the ground leads to ramifications for the native title holders and visitors (see [9], [16], [18]-[19] of the Joint Affidavit), I am not satisfied that the RSHA will adequately address the risk of interference in this matter.
Aboriginal Heritage Act
The State notes section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site without Ministerial consent under section 18 of the AHA (see [86]). Further, it is noted that should Buxton Resources apply for consent under section 18 of the AHA, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (see [87]).
The State indicates the protection of the AHA is not limited to recorded sites on the register but extends to sites falling within the definition of section 5 of the AHA (see [86]). This is relevant in this matter as it does not appear the stone arrangements are located on the register but the State’s above assessment appears to skim over some important threshold matters contained in the AHA. For example and most critically, I note there has been no attempt by the State to demonstrate how the identified sites may engage the AHA under section 5 of the AHA. As President Dowsett recently observed:
As to the AH Act, its operation is no doubt relevant to the extent of any risk [of interference]. When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal may well infer that the Act may offer a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts. (Marputu v Gianni at [62])
In the absence of the above, I am unable to conclude that the AHA is adequate in mitigating the risk of interference to the stone arrangements.
Conclusion
Of the areas or sites within the licence area identified by WNTAC, I determined the stone arrangements to be of particular significance to the native title holders. I noted the evidence from the native title party concerning the need to protect and respect country. Accordingly, I was satisfied that the proposed activities would constitute interference as contemplated by section 237(b). Finally, after outlining my doubts about the effectiveness of the endorsements and conditions and the AHA, I conclude it is not unlikely that the proposed future act will interfere with an area or site of significance, namely the stone arrangements.

Section 237(c): is the grant of the licences likely to involve, or create rights whose exercise is likely to involve major disturbance to the land or waters concerned?

Section 237(c) was one of the grounds raised in WNTAC’s initial objection however, paragraph [2] of its contentions advise that WNTAC does not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of major disturbance.
Given the above, I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve major disturbance to land or waters concerned.

Determination

My determination is that the grant of E04/2536 to Buxton Resources is not an act attracting the expedited procedure.

Mr JR McNamara
Member
12 July 2019