Wanparta Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd - [2011] NNTTA 158

NATIONAL NATIVE TITLE TRIBUNAL

Wanparta Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2011] NNTTA 158 (5 August 2011)

Application No: WO10/526

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

Wanparta Aboriginal Corporation (WC99/26) (native title party)

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The State of Western Australia (Government party)

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FMG Pilbara Pty Ltd (grantee party)

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

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  5 August 2011

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237

Mining Act 1978 (WA) s 63
Aboriginal Heritage Act 1972 (WA)

Cases:Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1
Dann v Western Australia and Another (1997) 74 FCR 391; (1997) 144 ALR 1; [1997] FCA 332
Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35
Jango and Others v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Neowarra v Western Australia [2003] FCA 1402
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rubibi Community v Western Australia (No 5) [2005] FCA 1025
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24

Representatives of the Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation

native title party: Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

Representatives of the Mr Rod Wahl, State Solicitor’s Office

Government party: Mr Dennis Jacobs, Department of Mines and Petroleum

Representative of the

grantee party: Ms Denice Johns, Fortescue Metals Group Ltd

REASONS FOR DETERMINATION

On 2 December 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E45/3400 (the proposed licence) to FMG Pilbara Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence comprises an area of 109.36 square kilometres located 38 kilometres north-west of Goldsworthy in the Town of Port Hedland. It is 98.71 per cent within the Wanparta Aboriginal Corporation prescribed body corporate (following the determination of WC99/26 – Ngarla on 30 May 2007). Accordingly, the native title party with respect to these proceedings is the Wanparta Aboriginal Corporation prescribed body corporate.
On 6 April 2010, the native title party lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. At the request of parties, compliance dates were extended on a number of occasions to allow time for negotiations to take place and, after an agreement had not been reached, for contentions and evidence to be gathered. Final directions made by the Hon C J Sumner included that the Tribunal be provided with contentions and documents of the: Government party by 11 October 2010; native title party by 7 March 2011; and grantee party by 14 March 2011.
The Department of Mines and Petroleum (DMP) provided documents on 28 September 2010 and the Government party lodged its contentions and evidence on 8 October 2010. On 29 November 2010, the native title party provided a map with 25 sites identified as being in and around the proposed tenement area. Further submissions in the form of ‘statutory declarations’ by anthropologist Nayeli Torres-Montenegro and Charlie Coppin were provided by the native title party on 10 January 2011 and 9 March 2011 respectively. The native title party did not provide formal contentions in this matter. On 1 June 2011, the grantee party provided a brief statement including advice that they would be relying on the contentions and evidence provided by the State. The ‘statutory declarations’ provided by the native title party have been signed on the final page, but have not been signed or witnessed on each other page. I note the Tribunal is not bound by the rules of evidence (as per s 109(3) of the Act) and, as such, I accept these documents as signed statements rather than sworn affidavits. I find that the documents and evidence that have been provided by the native title party, despite being somewhat limited in scope (although not in depth), is sufficient to constitute compliance with the directions and I accept and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act.
All parties agreed that this matter could be determined ‘on the papers’ (that is, without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 26 May 2011, I was appointed by Hon C J Sumner as the Member for the purposes of conducting the inquiry.

Legal principles (as per s 109(3) of the Act)

Section 237 of the Act provides:

Act attracting the expedited procedure

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

In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (paras [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (para [75]). The Hon C J Sumner has made it clear (para [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (paras [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (paras [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 is outlined by the Full Court in Little at 588-589, where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by what could be done rather than what was likely to be done.

Evidence in relation to the proposed act

Government party documents include:
·a statement of contentions;
·a Tengraph plan with topographical detail, tenement boundaries and historical land tenure;
·a report and plan from the Department of Indigenous Affairs (‘DIA’) Sites Register;
·a copy of the tenement application;
·the proposed endorsements and conditions of grant; and
·a Tengraph Quick Appraisal.
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
·Historical Lease 394/415 (73.4 per cent overlap);
·Crown Reserves (25.6 per cent overlap), including CR9701 (De Grey Mullewa Stock Route, 20.5 per cent overlap);
·Pastoral Lease 3114/1142 (DE GREY) (73.1 per cent overlap);
·Water Reserve (23.9 per cent overlap); and
·Private Land CG00021 and CG00022 (0.8 per cent overlap).
DIA documents provided by the Government party show that there are two Registered Aboriginal Sites within the proposed licence, being:
·Site 7180 – Ngarla Burials – Ceremonial, Skeletal material/Burial, permanent register, open access, no restrictions; and
·Site 7181 – Njamal Burials – Ceremonial, Skeletal material/Burial, permanent register, open access, no restrictions.
A map prepared by the Tribunal’s geospatial services on 31 March 2011 shows that there are no Aboriginal communities within the proposed licence area, with the nearest communities being, Marta Marta, located approximately 20 kilometres south west of the proposed licence area and Pananykarra, located approximately 11 kilometres south of the proposed licence.
Government party documentation dated 13 September 2010 indicated that the proposed licence was overlapped by active exploration licences E45/2538 and E45/2539. These exploration licences appeared to encroach on the proposed licence by 58.8 and 41.2 per cent respectively. However, subsequent clarification from the government party confirmed that E45/2538 and E45/2539 were released by compulsory partial surrenders prior to the proposed licence being made available to the public. Therefore, there is no actual overlap between E45/2538, E45/2539 and the proposed licence.
E45/2538 (WO05/381) and E45/2539 (WO05/382) were the subject of objections by the native title party’s pre-determination applicants. In both matters, agreements were reached and the objections withdrawn.
The list of dead tenements indicates that there is evidence of some previous mineral exploration activity between 1996 and 1998, with one surrendered exploration tenement overlapping the proposed licence area by 47.1 per cent.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] - Conditions 1-4). Additional conditions 5-6 require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities. According to documents provided by the Government party, these conditions will regulate the exploration activities on the current proposed licence site.
In addition, the grant of the proposed licence will be subject to the following further 14 conditions:
·No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (condition 7);
·Mining on a strip of land 20 metres wide with any as the centreline being confined to below a depth of 31 metres from the natural surface and no mining materials being deposited upon such strip and the rights of ingress and egress from the facility being at all times preserved to the owners thereof (condition 8);
·Consent to mine on De Grey Mullewa Stock Route Reserve 9701 subject to no mining operations being carried out on the Reserve which restrict the use of the Reserve (condition 9); and
·Consent to mine on De Grey River Water Reserve subject to Department of Water Guidelines; relevant Department of Water approvals; notification to the Department of Water regarding activities and the preservation of ingress and egress to officers of the Department of Water (conditions 10-20).
According to Government party documents, the following four endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) will be imposed:
·The licensee’s attention is drawn to the provisions of the AHA and any Regulations thereunder;
·The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained;
·The licencee’s attention is drawn to the provision of the Water and Rivers Commission Act 1995 and any regulations thereunder; Country Areas Water Supply Act 1947 and any regulations thereunder; and Metropolitan Water Supply Sewerage and Drainage Act 1909 and any regulations thereunder; and
·The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 Metres from the natural surface of the land.
Government party contentions (at 5(d)) also state that a condition will be imposed in the following terms:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Wanparta Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of the Ngarla and Ngarla #2 People recognised in Federal Court application no. WAD6185 of 1999 (WC99/26), such request being sent by pre-paid post to reach the Licensee's address, Level 2, 326 Hay Street, Perth WA 6004 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wanparta Aboriginal Corporation the Regional Standard Heritage Agreement endorsed by peak industry groups and the Pilbara Native Title Service.’

Native title party evidence

The material provided by the native title party relating to the proposed act is comprised solely of evidence and no formal contentions have been led by the native title party. Native title party submissions included the signed statements of Charlie Coppin and Nayeli Torres-Montenegro, an emailed statement from Rainer Mathews, lawyer with YMAC, and a map detailing 11 Ngarla sites in, and 14 sites around, the proposed tenement area (a total of 25 sites).
The statement of Charlie Coppin, affirmed on 9 March 2011, is made in the following terms:
‘I, Charlie Coppin, of 37a Captains Way South Hedland in Western Australia, retired, say as follows:
1.My English name is Charlie Coppin. My marrngu, or Aboriginal, names are Kurtiri and Makanykarra.
2.Makanykarra is from my country. My country is called Makanykarra and my name is Makanykarra. It’s my country name – what people call me when I’m a long way from home, like if I go out to Punmu in the desert. My father was also called Makanykarra, and his father before him, right through.
3.I have looked at a map of the area of tenement application E45/3400. It comes right up to the edge of Makanykarra country. The whole of the tenement application is an important area for Ngarla people where we go fishing, hunting and camping and where many of our old people lived. There’s a big, sacred song that’s only for initiated men that runs right through the middle of that tenement, from top to bottom, along the De Grey River. Kurrunya is the proper Ngarla name for the De Grey River.
4.There are lots of important places in that tenement area. My lawyers have prepared a map of the tenement showing the location of these places. They have used information from when we went on field surveys with our anthropologist out to that area to make the map, so I believe that the map is accurate (though I’m not very good with reading English so can’t read the words myself). They also read through all the places on the map, and I believe they’re all in the right place. The map is annexed to this declaration as “CC1”.
5.There are many important places in and around the tenement area.
6.Pinyjangartangkannya is the birthplace of Nora Cooke’s father, Malpuramarra. Nora Cooke is Ngarla. She’s my cousin. That country round Pinyjangartangkannya is her country.
7.Pinyjangartangkannya is also the site of a massacre of Ngarla people that took place in the early years of European settlement. An employee of De Grey Station had been mistreating an old Ngarla man, burning his arm with a magnifying glass. While the station hand thought the incident was a joke it upset the old man so much that he got his spear and speared the station man. After that many Ngarla people were shot by the Station men.
8.Maluru is a pool and yinta for the Maluru family. Yinta in Ngarla language means site. All of the Ngarla sites talked about in this declaration are yintas. However, each Ngarla family has a connection to a particular yinta, or a group of yintas where their spirit essence is. Maluru is one of those sites. There are no living descendants of the Maluru family so now all Ngarla people look after this yinta together.
9.Ngurlinya is a pool on the Walyparn. The Walyparn is one of the arms of the De Grey River, as it goes passes [sic] around Ripon Island.
10.Kurlijangunya is a pool on Kurrunya (Kurrunya is the proper Ngarla name for the De Grey River).
11.Kutuwanti is a pool on Walyparn. We visit pools like this to go fishing or camping.
12.Karlanyirtukannya is a pool on Kurrunya where the high tide stops. All the pools on the seaward side of Karlanyirtukannya are salty, from the sea water. Up-river from Karlanyirtukannya the water is fresh.
13.Pukapannya is an island in the Walyparn. Nearby Pukapannya is Ngarimpirrkapunya which is the site of a Law Ground that was used in the 1940s.
14.Parrkajangunya is a pool on Kurrunya.
15.Nganyjakapujangunya is a pool on Kurrunya.
16.Miji-Miji is the site of what is now a well. When I was young I walked around all of these places. I still visit them.
17.Kurrkara is a pool on Kurrunya. It is the site of a Law Ground that was used by Ngarla people in the 1950s. I went through Ngarla Law at this Law Ground in the 1950s. It’s just next to where the old Broome road used to cross the Kurrunya. It’s a very important place for me.
18.Kurrunya is the name of the De Grey River, but it is also the name of a pool in the river. Kurrunya pool is close to the homestead of the De Grey Pastoral Lease. Not far from the pool, on the up-river side of Ripon Island, is a graveyard where many Aboriginal people were buried from the 1920s through to the 1940s. The down-river side of the cemetery is the Ngarla area – where many Ngarla people are buried. Jeffrey Brown’s grandfather, Jurrayingki, is one of the Ngarla people buried there. On the up-river side is the Njamal area, where Njamal people are buried. It’s the part that is closest to Njamal country. Miriny-Mirinymarra, Jirlparurrumarra, and Karalypungu are some of the Njamal people buried there. There is also an area on the Hedland side where Kariyarra people were buried. That is the part of the cemetery closest to Kariyarra country.
19.Nyarnunya is a creek as well as a nearby maniny (claypan) and well. The creek forms the boundary of the Karlya family estate area, which belongs to the Lee family. There is a law ground in this area.
20.Yarnajangunya is a pool on the Kurrunya River.
21.Yaarnnya is a creek and pool. Shown here is a photograph of Nora Cooke taken just near Yaarnnya, by our anthropologist Dr Nicholas Smith in 2001. She’s collecting bush tucker – Wild Orange that we call Kurlanti: (photo included)
22.Purlkurrunya is a named pool on the Kurrunya River.
23.Yartujangunya is another named pool on the Kurrunya River.
24.Yirrkapukara is also a named pool on the Kurrunya River. I visit all of these places. They’re all on the path of the big song that I mentioned before.
25.Makanykarra is the name of my country that goes round the Ridley River through to the Ord Ranges and Tabba Tabba Creek. It’s also the name of a pool which is shown on the map my lawyers prepared. That pool is a yinta for me and my family. It’s a very important place, the home of a dangerous spirit snake, Kata-Katara. The spirit has a mane like a horse and can swallow people up. It has killed people in the past. There is a secret song that belongs to Kata-Katara. If the snake is disturbed it could be disastrous for everyone involved. We Ngarla People are extremely concerned about any activity in the area of Makanykarra, even in the tenement application, because it could disturb Kata-Katara. There is a second spirit snake that is also connected to the Makanykarra pool, Parlkumarra. Parlkumarra is a manguny being – it belongs to the creation time. We sing about Parlkumarra. Both Kata-Katara and Parlkumarra are connected with rain and can make big storms or cyclones. If strangers want to visit this area they have to follow the right cultural protocols, and be introduced in Ngarla language in the right way. Otherwise there might be big trouble.
26.Shown here is a photograph taken by our anthropologist Dr Nicholas Smith in 2001 of me and other Ngarla people at Makanykarra pool. (photo included)
27.Ngarnta-Ngarnta is a named pool on the Kurrunya River.
28.Wirlurrkapunya and Julijangunya are jakungu, or frog holes. Jakungu are places where a kind of edible frog, jungkurtu, is found. On the surface jakungu are sandy areas a few metres wide. They are not easily seen by people who don't know about them. Lots of jungkurtu can be found if you dig down below the surface of the jakungu. There is a spirit snake, Pilankujarra, that guards the jakungu at Wirlurrkapunya and Julijangunya. If you damage a jakungu, maybe by taking too many jungkurtu, the Pilankujarra will tie you up. The snake won’t let you go unless you leave everything there – your clothes, your car, everything. You’ll be stripped of everything, or else you’ll be stuck there with that snake. Ngarla people have to look after jakungu – they can be damaged by people driving over them. Strangers also need to be protected from the Pilankujarra. It’s important that we look after our country and any visitors to it. The tenement application is not far from Wirlurrkapunya and Julijangunya and this is a worry to us Ngarla people.
29.Pirarrpurinya is a named maniny site, or claypan.
30.Pikarli is a pool and yinta for the Jul-Jul family.
31.Jarntarriwantinya is a pool on the Walyparn. It is also a nearby wantarri , [sic] or sandhill.
32.We visit and look after all the places I’ve named in this declaration. There are many spirits in the country of the tenement application and some of them are dangerous. Mining company people often think they can go anywhere on the country and that they won’t get into trouble or cause trouble for other people. But this tenement is in a very important area – there’s lots of special places and lots of spirits that might be disturbed.

The evidence of Charlie Coppin is uncontested and I accept that he has the authority to speak on behalf of the native title party.
The statement of Nayeli Torres-Montenegro, affirmed on 10 January 2011, is made in the following terms:
‘I, Nayeli Torres-Montenegro, of 5 Delamere Place, South Hedland in the State of Western Australia, anthropologist, say as follows:
1.   I was employed by Yamtji [sic] Marlpa Aboriginal Corporation (YMAC) from April 2009 to January 2011. Throughout 2010 I was designated anthropologist within YMAC with responsibility for dealing with matters in relation to the Ngarla People.
2.   I have seen a map of proposed tenement E45/2400. The Ngarla person who is recognised within the Ngarla community as having the cultural authority to speak for that area is Mr Charlie Coppin.
3.   On 18 June 2010 I visited the area of proposed tenement E45/2400 with Mr Coppin.
4.   On the basis of that visit I am aware that the area of the proposed tenement is of high significance to the Ngarla People. There are more than 20 twenty [sic] named sites of various types, in the immediate vicinity. It is my opinion that a number of these sites are of high anthropological significance.
5.   YMAC has been preparing a statement with Mr Coppin, detailing some of the sites in and around the proposed tenement. However, it has been difficult to meet with Mr Coppin because he is a senior Law man and his attendance has been required at various Law ceremonies around the Pilbara. As of 7 January 2011 (my last day of work at YMAC) it had not been possible to finalise Mr Coppin’s statement.
I note the statement of Nayeli Torres-Montenegro refers to tenement E45/2400 rather than E45/3400. As there is no tenement E45/2400, I assume this is a typographical error and the statement actually refers to E45/3400. The profession declared in the statement is as an anthropologist employed at Yamatji Marlpa Aboriginal Corporation since April 2009. Whilst the Tribunal is not a Court and is not bound by the rules of evidence, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and supports the Tribunal’s acceptance of it. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claim group’s evidence, is probative: Neowarra v Western Australia [2003] FCA 1402 at [388]; Rubibi Community v Western Australia (No 5) [2005] FCA 1025 at [263]; Jango and Others v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318 at [291] to [292].
As the Full Court of the Federal Court has noted, an anthropologist, such as Nayeli Torres-Montenegro, may observe and record matters relevant to both the social organisation of a native title claim group and the nature and content of their traditional laws and traditional customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135 at [89].

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 at 449-450 [23] (‘Smith’)). 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 (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The evidence establishes that some exploration activity has occurred in the area of the proposed licence between 1996 and 1998 and that pastoral activities are conducted on a significant portion of the area. I accept that these activities will already have interfered to some extent with any traditional community or social activities of the native title party.
In relation to community and social activities over the proposed licence area, Charlie Coppin deposes that: there is a Law Ground within the proposed licence area that was used in the 1940s (at 13); there is another Law Ground within the proposed licence area that ‘was used by Ngarla people in the 1950s’ and was where Charlie Coppin went through Ngarla Law in the 1950s (at 17); and that in and around the proposed licence area is used for fishing, camping (at 11) and collecting bush tucker such as Kurlanti, or wild orange (at 21) and jungkurtu – an edible frog (at 28). Charlie Coppin also affirms that ‘[w]e visit and look after all the places I’ve named in this declaration’ (at 32).
Although Charlie Coppin deposes to Law Grounds located within the proposed licence area being used in the 1940s and 1950s, there is no further evidence to support a finding that these activities continue to occur today or, if they do, it is not described in any specificity as to who is involved in these activities, and when. Charlie Coppin’s statement presents a lack of detailed evidence regarding community or social activities on the proposed licence area. In particular, there is little evidence addressing when, where or how the community or social activities occur or who is involved.
The size of the proposed licence is 109.36 square kilometres and the area of the Wanparta Determination is 10655.82 square kilometres. Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108, I find that the size of the proposed licence area in the context of the much larger native title determination area makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place, as significant ground disturbing exploration will only occur at any one time over a small area. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. I believe this is such a case.
Taking all of these factors into account I find that exploration activity in relation to the proposed licence E45/3400 is not likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated, DIA documentation shows two registered sites within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on relevant aspects of its regulatory regime under the Mining Act and the AHA, including s 63, the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, to contend that there is not likely to be interference with sites of significance. The grantee party relies on the Government party materials.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The statement of Charlie Coppin and annexed map detail at least 25 sites of significance to the native title party located within, or in close proximity to the proposed licence area. Eleven of these sites of significance appear to be directly within the proposed licence area, with the remainder within one to 10 kilometres away from the proposed licence area to the east, west and south. Charlie Coppin states that ‘[t]here are many spirits in the country of the tenement application and some of them are dangerous’ (at 32) and that ‘[t]here’s a big, sacred song that’s only for initiated men that runs right through the middle of that tenement’ (at 3).
Charlie Coppin makes reference to burial sites where Aboriginal people were buried from the 1920s to the 1940s (at 18). He says there are Ngarla, Njamal and Kariyarra People buried there. His description of these sites corresponds to the description and location of the two DIA registered sites within the tenement area and I can infer that they are likely to be one and the same. Charlie Coppin refers to the Karlanyirtukannya, a pool on the De Grey River (Kurrunya), where the high tide stops, ‘all the pools on the seaward side of Karlanyirtukannya are salty, from the sea water. Up-river from Karlanyirtukannya the water is fresh’. From the annexure to Charlie Coppin’s statement it appears that the sites of particular significance follow predominantly the course of the De Grey River (Kurrunya).
Charlie Coppin also makes reference to a pool named Makanykarra which is shown on the annexed map. Charlie Coppin says ‘[i]t’s a very important place, the home of a dangerous spirit snake, Kata-Katara ... It has killed people in the past ... If the snake is disturbed it could be disastrous for everyone involved. We Ngarla People are extremely concerned about any activity in the area of Makanykarra, even in the tenement application, because it could disturb Kata-Katara’ (at 25). According to the map which annexes Charlie Coppin’s statement, the pool is located some two kilometres from the proposed licence area.
Charlie Coppin’s statement outlines that ‘[m]ining company people often think they can go anywhere on the country and that they won’t get into trouble or cause trouble for other people. But this tenement is in a very important area – there’s lots of special places and lots of spirits that might be disturbed’ (at 32).
The statement of the anthropologist Nayeli Torres-Montenegro indicates (at 4) that ‘there are more than 20 twenty [sic] named sites of various types, in the immediate vicinity. It is my opinion that a number of these sites are of high anthropological significance [italics added]’. This suggests that it is recognised that while all of the sites on Charlie Coppin’s annexed map are of some significance to the native title party, there are some which are also of particular, or high, significance to the native title party. Similar to the Tribunal’s finding in Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35, the existence of registered sites in the vicinity, along with areas outlined in Charlie Coppin’s statement and the statement of the anthropologist corroborates the importance of the area to the native title party, which contains sites of particular significance. It appears the proposed licence falls into the territory of site rich areas such that the presumption of regularity is insufficient to preclude a real risk of interference with these sites of particular significance without the negotiation process available in s 31 of the NTA.
I must now consider whether the intentions of the grantee party, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (RSHA) (Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1 (‘Champion’) at 386-388 [30]-[34]). The grantee party indicated they would rely on the Government party materials, and did provide a statement to the Tribunal advising their intention to ‘abide all relevant tenement conditions imposed by the Department of Mines and Petroleum and in accordance with the Mining Act 1978, the Native Title Act1993 and the Aboriginal Heritage Act1972 ... as required by law’.
However, the uncontested evidence of the native title party is compelling in that the proposed licence and its close surrounds is a site rich area, and while I am confident that the grantee party has lawful and positive intentions, I am not confident in this matter that the regulatory regime will operate to eliminate the likelihood that sites of particular significance may be interfered with, particularly those around the De Grey River (Kurrunya) area. I am of the opinion that this is a case where the negotiation process available under s 31 of the Act should take place to avoid the likelihood of interference with sites of particular significance on this proposed licence. The sites of particular significance which have been stated to exist on the proposed licence area, which may or may not be on the public record, means there is a real risk of interference with them despite the protective provisions of the AHA.
I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area, and as such the act is not an act which attracts the expedited procedure.

Major disturbance to land and waters (s237(c))

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little at [41]-[57]; Dann v Western Australia and Another (1997) 74 FCR 391; (1997) 144 ALR 1; [1997] FCA 332).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion at 386-388 [74]-[79] and the cases cited therein).
In this matter, no contention is made by the native title party in relation to s 237(c) and there is no evidence to suggest there are any exceptional factors leading to a finding that major disturbance of this nature is likely. The proposed licence area has been the subject of previous, albeit limited, exploration, and ongoing pastoral activity. In this case, I find that there is not likely to be major disturbance to land or waters or the creation of rights which would do so.

Determination

The determination of the Tribunal is that the grant of exploration licence E45/3400 to FMG Pilbara Pty Ltd is not an act attracting the expedited procedure.

Helen Shurven
Member
5 August 2011