WF (deceased) & Ors on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

WF (deceased) & Ors on behalf of Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2013] NNTTA 83 (5 July 2013)

Application No: WO2011/1213, WO2012/11, WO2012/12

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

WF (deceased) and Others on behalf of the Wiluna Native Title Claimants (WC1999/024) (native title party)

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The State of Western Australia (Government party)

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Kingx Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 5 July 2013

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 162(2), 237

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

Cases:Champion v Western Australia (2005) 190 FLR 362, ('Champion')
Cyril Barnes and Ors on behalf of Central Goldfields People/Western Australia/Anglo Gold Ashanti Australia Ltd; Independence NL [2013] NNTTA 17, ('Cyril Barnes')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576, ('Little')
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, ('Maitland Parker')
Monadee v Western Australia (2003) 174 FLR 381, ('Monadee')
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027, ('Parker 1')
Parker v Western Australia (2008) 167 FCR 340 (‘Parker 2’)
Silver v Northern Territory (2002) 169 FLR, ('Silver')
Smith v Western Australia (2001) 108 FCR 442, ('Smith')
Walley v Western Australia (2002) 169 FLR 437, ('Walley')
WF (deceased) & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd [2011] NNTTA 170, ('Kingx')

Representatives of the Mr Mike Allbrook, Central Desert Native Title Services

native title party: Ms Irene Assumpter, Central Desert Native Title Services

Representatives of the Mr Clyde Lannan, Department of Mines and Petroleum

Government party: Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the Mr Chris Davies, Austwide Mining Title Management Pty Ltd
grantee party:

REASONS FOR DETERMINATION

The State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘NTA’, ‘the Act’) of its intention to grant exploration licences E53/1622, E53/1623 and E53/1624 (‘the proposed licences’) to Kingx Pty Ltd (‘the grantee party’). The proposed licences are in the Shire of Wiluna. Each notice included a statement that the Government party considered the grant attracts the expedited procedure (that is, that each of the proposed licences is an act that can be done without the normal negotiations required by s 31 of the Act).
Each of the proposed licences is situated within the Wiluna native title claim (WC1999/024 – registered from 24 September 1999). No other registered claim or determined area overlaps the proposed licence areas. WF (deceased) and others on behalf of the Wiluna Native Title Claimants (‘the native title party’) lodged expedited procedure objection applications in relation to the proposed licences. The objections, along with the lodgement dates, associated tenement numbers and notification dates are listed in Table 1.

Table 1

Objection	Tenement	Section 29 Notification Date	Date Objection Lodged
WO2011/1213	E53/1622	13 October 2011	25 October 2011
WO2012/11	E53/1623	7 December 2011	3 January 2012
WO2012/12	E53/1624	7 December 2011	3 January 2012

The area and location of the proposed licences are as follows:
·E53/1622 comprises an area of 214.97 square kilometres, 92 kilometres east of Wiluna.
·E53/1623 comprises an area of 215.13 square kilometres, 69 kilometres north east of Wiluna.
·E53/1624 comprises an area of 215.07 square kilometres, 82 kilometres east of Wiluna.
In accordance with what was then standard practice, the Tribunal gave directions for parties to provide contentions and evidence for an inquiry to determine whether or not the proposed licences attract the expedited procedure. These directions allowed a period after the objection lodgement closing date for parties to discuss the possibility of reaching an agreement, which could lead to the disposal of the objection by consent.
The Tribunal convened a preliminary conference in relation to WO2011/1213 on 29 November 2011. At that conference, the grantee party indicated that the tenement formed part of a larger project and it would be seeking an agreement with the native title party. At a status conference subsequently held on 8 February 2012, parties indicated that the negotiations regarding E53/1622 would also deal with E53/1623 and E53/1624, so the conduct of the WO2011/1213 matter was aligned with WO2012/0011 and WO2012/0012.
The Tribunal held a number of status conferences between April and August 2012. As it appeared from each of these conferences that parties were still negotiating an agreement, directions were varied on several occasions to allow those negotiations to continue. However, at a status conference on 29 August 2012, the then representative for the grantee party informed the Tribunal that the grantee party’s interest in the proposed licences had been purchased by a third party. The representative notified the Tribunal that he had been instructed to act for the third party and was in the process of seeking instructions in relation to the proposed agreement. Further status conferences were convened on 19 September, 17 October and 7 November 2012. However, on each occasion, the representative informed the Tribunal that he was still seeking instructions from the third party. Consequently, the Tribunal set directions for inquiry on 12 November 2012.
On 19 December 2012, I was appointed by the then President, Mr Graeme Neate, as the Member for the purpose of conducting the inquiry.
On 21 December 2012, the Tribunal received a letter from Central Desert Native Title Services (‘CDNTS’) on behalf of the native title party. In the letter, CDNTS requested an extension to the current compliance dates as it needed to meet with its clients to obtain affidavit evidence, which they stated could not be done before April 2013 due to law business. I granted the extension on the basis that the dates would be final. The Government party, through the Department of Mines and Petroleum (‘DMP’) provided its initial documentation on 22 March 2013. Though the native title party’s submissions were due on 2 April 2013, they were not received until 5 April as the representative had been in a remote location until that day. The native title party contentions were supported by the Affidavits of Ms Lorna Bond, Ms Lena Long and Mr Frankie Wongawol.
On 8 April 2013 the grantee party acknowledged receipt of the native title party submissions, and requested a consequent extension until 12 April 2013 to file their submissions. Also on file for 8 April 2013 is an email from DMP, acknowledging the grantee party’s receipt of the native title party’s submissions and supporting the request for extension. I accepted the late submissions, and granted the consequential extensions to the other parties. The grantee party’s submissions were received on the due date of 12 April 2013.
With the extension, the Government party’s contentions were due on 19 April 2013. On 12 April, another representative from DMP wrote to the Tribunal enquiring after the native title party’s submissions, which it stated it had not received. The Tribunal informed the Government party on 12 April that the native title party had already provided its submissions and the Government party had been included in the email under which the submissions were sent. The Tribunal also emailed a copy of the native title party’s submissions directly to the DMP representative on 12 April 2013. The Government party’s contentions were not provided by the compliance date, and the Tribunal did not receive any request to vary the directions.
On 24 April 2013, I vacated the listing hearing scheduled for May 2013 and advised parties accordingly, including that the matter would proceed to inquiry on the papers in accordance with s 151(2) of the Act. There was no objection from any party.
The Tribunal provided a map generated by its Geospatial unit to all parties on 23 May 2013 indicating that the Tribunal intends to rely on the map in its deliberations. There were no comments from parties in relation to that.
Subsequent to referring the matter to inquiry, the Tribunal noted that the native title party had also provided it with the original, large (A1 size) map referred to in paragraph 4 of Mr Wongawol’s affidavit, which shows the proposed licences, but the map had not been provided to the other parties. Consequently, a copy of the map was provided to the Government party and the grantee party on 26 June 2013. Neither the grantee party nor the Government party sought to comment on the map.
The native title party’s contentions state that the basis of its objections is that the grant of the proposed licences, and the exercise by the grantee party of rights authorised by the proposed licences, is likely to interfere directly with the carrying on of the community or social activities of, and is likely to interfere with areas or sites of particular significance to, the native title party (as per s 237(a) and s 237(b) of the Act, respectively). The native title party does not seek to pursue its objection in relation to s 237(c) of the Act and has not made any contentions in that regard (at 1.3-1.4). As such, this determination will focus only on evidence and contentions relating to s 237(a) and s 237(b) of the Act.
The grantee party’s contentions note that Austwide Mining Tenement Management Pty Ltd assumed the management of tenements held in the name of the grantee party, including the proposed licences, in December 2012. Although it was understood that a third party was to be assigned the grantee party’s interests in the proposed licences, it is apparent from the grantee party’s contentions that it intends to retain the proposed licences. The contentions have an attachment in the form of a letter from CDNTS to the grantee party dated 20 February 2013, which appears to be a cover letter to an updated Wiluna Exploration and Prospecting Deed of Agreement, sent to the grantee party on that date. The letter states this is the 'standard agreement utilised in the Wiluna claim in relation to the conduct of exploration and prospecting activities...[which]...can be accepted as it stands or it may provide the basis for further negotiation in relation to this matter'. The grantee party states it provided comments on the agreement to the native title party in March 2013 but had not received comments from the native title party, and still remains willing to negotiate and 'enter into a heritage protection agreement'.

Legal principles

Section 237 of the Act relevantly provides:
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; ...
In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]). 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 Tarlpa at [10]-[16].
In relation to s 237(a), I adopt the Tribunal’s findings in Tarlpa on the following matters:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). Deputy President Sumner has made it clear (at [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) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2). I also adopt the findings of Deputy President Sosso in Silver.

Evidence in relation to tenure, endorsements and conditions

The Government party has provided for each of the proposed licences:
·Tengraph plans with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licences.
·Reports and plans from the Aboriginal Sites Database maintained by the then named Department of Indigenous Affairs (‘DIA Database) (now the Department of Aboriginal Affairs).
·Copies of the tenement applications and proposed endorsements and conditions of grant.
·The instruments of licence and first schedules listing the land included and excluded from the grants.
·Tengraph Quick Appraisals detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licences.
I will deal with each of the proposed licences in turn.

E53/1622

Government party documentation establishes the underlying land tenure of E53/1622 to be as follows:
·Pastoral Lease 3114/1067 (Yelma) overlapping at 59.3 per cent.
·Historical Lease 395/430 overlapping at 41.9 per cent.
·Pastoral Lease 3114/1068 (Wongawol) overlapping at 23.6 per cent.
·Vacant Crown Land overlapping at 16.8 per cent.
·Road reserve (Wongawol Road) overlapping at less than 0.1 per cent.
The area of Vacant Crown Land within E53/1622 is designated as a ‘CALM purchased former pastoral lease’ (CPL/9), being the area formerly covered by the Lorna Glen Pastoral Lease (3114/955), and is currently managed by the Department of Environment and Conservation (formerly the Department of Conservation and Land Management).
The Tengraph Quick Appraisal indicates that the area within E53/1622 has previously been subject to five exploration licences granted between 1992 and 2008 and either surrendered or forfeited between 1995 and 2009, each with an overlap with the proposed licence of between 0.1 and 100 per cent. The area has also been subject to a temporary reserve granted in 1959 and cancelled in 1965, which covered the entire area.
The Quick Appraisal also establishes the existence of various services and other features within E53/1622, including: a minor road (Wongawol Road); two tracks; five fence lines; one yard; two windmills (South and Jasper); one well/bore (Little Banjo); two cliffs/breakaways/rockridges; four non-perennial, non-permanent lakes; and 56 non-perennial minor watercourses (including Coles Creek).
The report from the DIA Database shows that there are no sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) or ‘other heritage places’ within E53/1622.
The draft Tenement Endorsement and Conditions Extract for E53/1622 included with the Government party documentation indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions are to be imposed as follows:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting requirement or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of
·      the grant of the licence; or
·      registration of a transfer introducing a new licensee
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
In respect to the area designated as CPL 9 in TENGRAPH the following conditions apply:
7.Prior to any ground-disturbing activity, as defined by the Director, Environment, DMP [Department of Mines and Petroleum] the licensee preparing a detailed program for each phase of proposed exploration for approval of the Director, Environment, DMP. The program to include:
·      maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
·      the purpose, specifications and life of all proposed disturbances;
·      proposals which may disturb any declared rare or geographically restricted flora and fauna; and
·      techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances.
8.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DMP. Such rehabilitation as is appropriate and may include:
·      Stockpiling and return of topsoil
·      Backfilling all holes, trenches and costeans;
·      ripping;
·      contouring to the original landform;
·      revegetation with seed; and
·      capping and backfilling of all drill holes.
9.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 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.

E53/1623

Government party documentation establishes the underlying land tenure of E53/1623 to be as follows:
·Two parcels of Vacant Crown Land overlapping at 1.4 and 93.5 percent respectively.
·Historical Lease 395/406 overlapping at 8.1 per cent.
·Pastoral Lease 3114/1067 (Yelma) overlapping at 5.1 per cent.
The parcel of Vacant Crown Land comprising 93.5 per cent of the tenement is also part of the area designated as a ‘CALM purchased former pastoral lease’ (CPL/9).
The Quick Appraisal establishes that the area within E53/1623 has previously been subject to eight exploration licences granted between 1993 and 2008 and either surrendered or forfeited between 1996 and 2009, each with an overlap with the proposed licence of between 0.1 and 100 per cent. The area has also been subject to a temporary reserve granted in 1959 and cancelled in 1965, which covered the entire area.

The Quick Appraisal indicates that various services and other features are located within E53/1623, including: five minor roads; 13 fence lines; four wells/bores with windmills (Fyfe, No.9, No.1, Johnson); 6 non-perennial, non-permanent lakes (including Lindsay Gordon Lagoon); 72 non-perennial minor watercourses; and one spring/ soak/ rockhole/ waterhole (Lorna Glen Spring).
The report from the DIA Database shows that there are no sites registered under the Aboriginal Heritage Act 1972 (WA) or ‘other heritage places’ within E53/1623.
The draft Tenement Endorsement and Conditions Extract for E53/1623 indicates that the grant will be subject to the same conditions and endorsements as E53/1622 (see above at [23]-[24]).

E53/1624

Government party documentation establishes the underlying land tenure of E53/1624 to be as follows:
·Historical Lease 395/430 overlapping at 46.3 per cent.
·Pastoral Lease 3114/1067 (Yelma) overlapping at 45.9 per cent.
·Pastoral Lease 3114/1068 (Wongawol) overlapping at 32.4 per cent.
·Vacant Crown Land overlapping at 21.7 per cent.
The Vacant Crown Land is also part of the area designated as a ‘CALM purchased former pastoral lease’ (CPL/9).
The Quick Appraisal establishes that the area within E53/1624 has previously been subject to four exploration licences granted between 1992 and 2008 and surrendered between 1995 and 2009, each with an overlap of between 1.3 and 100 per cent. The area has also been subject to a temporary reserve granted in 1959 and cancelled in 1965, which covered the entire area.
The Quick Appraisal indicates that various services and other features are located within E53/1624, including two tracks, nine fence lines, one feature identification dot (Mt Wellesley), two windmills, 65 cliffs/breakaways/rockridges, two non-permanent, non-perennial lakes, and 85 non-perennial minor watercourses.
The report from the DIA Database shows that there are no sites registered under the Aboriginal Heritage Act 1972 (WA) or ‘other heritage places’ within E53/1623.
The draft Tenement Endorsement and Conditions Extract for E53/1624 indicates that the grant will be subject to the same conditions and endorsements as E53/1622 (see above at [25]-[26]).

The Affidavit Evidence

The native title party relies on the following documentary evidence in support of its contentions:
·The affidavit of Lorna Bond dated 20 November 2012.
·The affidavit of Lena Long dated 26 February 2013.
·The affidavit of Frankie Wongawol dated 27 February 2013.
I accept that the deponents have the necessary authority to give evidence on behalf of the native title party in relation to this inquiry.
The native title party requested the Tribunal make directions under s 155 of the Act to limit the disclosure of the affidavits on the basis that the affidavits contain information of a gender sensitive nature. After reviewing the affidavits, I made directions in similar terms to those sought by the native title party. Though the directions impose limits on the disclosure of the affidavits, they provide that the Tribunal is not restrained from appropriately explaining the reasons for its decision. As such, though the affidavits will not be reproduced in these reasons, I refer to the contents of the affidavits to the extent necessary to identify findings of fact on which my decision is based (see s 162(2) of the Act).

Considering the evidence

Section 237(a) – Community or Social Activities

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken in relation to the licences 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 at [23]). Direct interference involves an evaluative judgment 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 at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The grantee party states that, in relation to s 237(a), the evidence of the native title party does not indicate the area is frequently visited, and the grantee party would not impact on those community or social activities. They note that the native title party camp outside the tenements and walk in, and the grantee party states that offsite activities should not be taken into account in relation to the assessment of this matter (at 3.2-3.4).
As the grantee party has not provided any evidence in relation to its proposed exploration programme or how it intends to exercise the rights granted under the proposed licence, it is open for the Tribunal to infer that the grantee party will exercise those rights to their full extent: see Silver at [25]-[32]; Monadee at [17].
The native title party contends that E53/1623 contains a location the registered native title claimants refer to as ‘Matuwa’, which is considered to be the ngurra (or home) country of the registered native title claimants. On this basis, the native title party submits that the registered native title claimants have a particular connection to the proposed licence areas (at 3.11).
With respect to community or social activities, the native title party provides the following particulars (at 3.12):
·The registered native title claimants frequently travel to the proposed licence areas to conduct community and social activities.
·The registered native title claimants regularly camp in the proposed licence areas to meet and discuss issues that are important to the community.
·The proposed licences contain endangered species that the registered native title claimants are trying to rehabilitate.
·The proposed licences contain important hunting grounds where the registered native title claimants hunt animals and collect traditional foods.
·The proposed licences contain a traditional road known to the registered native title claimants that allows them to identify and access Matuwa.
The native title party contends that the activities carried on by the grantee party in the proposed licence areas will interfere with the ability of the registered native title claimants to conduct community and social activities within the proposed licences for the following reasons (at 3.13):
·The presence of exploration and drilling activities within the proposed licences will interfere with the ability of the registered native title claimants to hunt in the area.
·Because of the cultural significance of Matuwa, the proposed licence areas are a focus of caring for country activities and land management by the registered native title claimants in accordance with traditional law and custom.
·The proposed licences are an important location for inter-generational knowledge transfer.
·The right to negotiate is required so that meaningful consultation and negotiation between the native title party and the grantee party occurs to ensure that community and social activities are not likely to be interfered with.
The contentions are supported by information in the women's affidavits, which establish there is a variety of bush tucker in the proposed licences, particularly in E53/1623, and that camping takes place off the proposed licences but native title party members then walk in to care for country and look after Jukurrpa. The women's affidavits outline that, apart from its use for gathering bush tucker and caring for country, the area is also important for men and women of the native title party (and for different reasons which are outlined in detail), and that the area is visited 'frequently'. Ms Bond's affidavit focuses on the importance and detail of E53/1623 and Ms Long's affidavit outlines particular evidence about E53/1622 and E53/1623.
Mr Wongawol states that Matuwa is in the north east portion of E53/1623 and is also known as Lorna Glen Spring. Mr Wongawol says that Matuwa is considered to be a ‘good place’ to camp and hunt, and members of the native title party visit the site ‘all the time’. He also states that there is another place in E53/1623 where Martu people ‘come from all over’ to carry on law business, and which is an important men's site. I do note Ms Bond states that Matuwa is also known as Lorna Glen Station, but encompasses a wider area than the Station, which is close to the north east border of E53/1623. It appears then that this area is consistently stated to be of significance to the native title party for social and community activities.
In Silver, DP Sosso held (at [35]) that there may be community or social activities carried out which are not in the area of the proposed licence but which could still be interfered with in the sense contemplated by s 237(a) provided there is a 'clear nexus between those activities and issues being considered under s 237'. Given the character and scope of the activities carried on by the native title party in those areas, I accept that such a nexus exists in particular between the activities carried on at and around Matuwa and the issues being considered under s 237(a), particularly in relation to E53/1623.
Mr Wongawol describes an area within E53/1622 and E53/1624 that is good for hunting hill kangaroo, which he says is important to the native title holders when they cannot eat plain kangaroo for cultural reasons. Mr Wongawol also refers to a traditional road used by native title holders to travel from Windidda to Matuwa through E53/1623 and E53/1624.
In relation to Mr Wongawol’s evidence regarding the road, I do not consider it likely that the grantee party’s activities will substantially interfere with the native title holder’s use of the road, as it is unlikely those activities will intersect to a significant degree with the native title holder’s use of the road. If the grantee party’s activities involve excavation of any part of the road, it is only likely to interrupt the use of the road for a limited period of time, and the conditions of grant require the grantee party to backfill and rehabilitate the area once the exploration has been completed. Similarly, while I acknowledge that there may be cultural reasons for hunting hill kangaroos at particular times, the evidence does not establish that the grantee party’s activities will interfere with native title holder’s ability to access and hunt in the area. Moreover, there is no evidence to suggest that the native title holders are unable to hunt hill kangaroo in other parts of the claim area.
As for activities carried on at Matuwa, it is necessary to have regard to the fact that E53/1623 is 215.13 square kilometres, whereas the claim area is approximately 47,595 square kilometres. However, as I found in Kingx at [39], Matuwa has unique qualities as compared with the claim area in general. In that matter, evidence was also led as to the gender sensitive nature of the area on and around Matuwa. In that matter, I concluded that it would be difficult for such activities to continue without significant interference unless ongoing negotiations took place between the parties. As with that matter, the grantee party has not provided any evidence as to the activities it proposes to undertake on the proposed licence. Accordingly, I am not prepared to depart from that finding, and adopt it for the purpose of determining the present inquiry. Matuwa is located on or very near to E53/1623 and there is evidence sufficiently particularised in this matter to make out that specific activities occur on and very near to this proposed licence, as compared with the other two proposed licences, or the claim as a whole. In the present case, I consider there is a significant likelihood of interference with the community or social activities of the native title party from the grant of E53/1623.
A further issue is raised by Mr Wongawol’s evidence regarding the objects left by one of the Jukurrpa said to travel through the proposed licences. Mr Wongawol states that those objects are used for male initiation rituals, and goes on to say that the removal of those objects will interfere with the conduct of law business. While I address this point in more detail in relation to areas of particular significance under s 237(b), I accept, for the purposes of s 237(a), that interference with the objects could directly interfere with the conduct of law business, which is a community and social activity of the native title party. Though Mr Wongawol has not specifically identified the location of the objects, he does indicate that they follow the path of the Jukurrpa, and are therefore capable of being identified by those with the relevant cultural knowledge.
In the circumstances, I am satisfied that there is a real risk that the grantee party will interfere with these objects in carrying out an exploration programme on the proposed licences unless there is adequate consultation with the native title party. I accept that this will have a consequential effect on the ability of the native title holders to conduct ceremonial activities.. While this interference may be inadvertent, in the absence of any particulars from the grantee party about the nature and extent of their activities, in the context of the native title party evidence, I must assume the grantee party would exercise the full suite of their rights on grant.
Based on the evidence provided, I find that the grant of the proposed licences is likely to interfere directly with the community or social activities of the native title party for the purposes of s 237(a).

Section 237(b) – Sites or areas of particular significance

The issue the Tribunal is required to determine in relation to s 237(b) of the Act 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.
The grantee party states that the Tribunal can have regard to the grantee’s attitude to entering into a Regional Standard Heritage Agreement and other evidence of the grantee party directed toward Aboriginal heritage (as per Champion). The grantee party states that all reasonable attempts will be made to ensure meaningful consultation and negotiation take place with the native title party so that sites of particular significance are not likely to be interfered with (at 4.6). The grantee party states that it remains willing to negotiate in respect of the native title party’s proposed agreement, which it says will afford ‘above adequate protection’ to heritage (at 1.10 and 4.2). The grantee party states they will act in accordance with the proposed endorsements and conditions and they are aware that the Act provides a wide definition of Aboriginal site (at 4.4). They also note the presence of certain features on E52/1623 (as outlined by Ms Bond in her affidavit), and contend that it is unlikely that the grantee party’s activities will interfere with the existence of those features, citing Cyril Barnes at [45]. I note, however, that they do not refer to Mr Wongawol's comments in relation to the north east portion of E52/1623.
The grantee party undertakes to comply with all relevant legislation, and notes that its standard operating practice is to engage with the native title party’s representative and commission heritage assessments and surveys in cooperation with them (at 1.11). The grantee party says it understands that the definition of ‘Aboriginal site’ under the AHA is not limited to registered sites, and acknowledges that the area covered by the proposed licences is culturally important to the native title party, and that other sites or areas of importance may be located in the area (at 1.13 and 4.4).
With respect to sites or areas of particular significance, the native title party contentions provide the following particulars (at 4.24 and 4.25):
·The proposed licences contain ancestral burial grounds, the care and maintenance of which are attended to by the registered native title claimants.
·A Jukurrpa of particular significance to women traverses, and makes a number of features within, E53/1623.
·A Jukurrpa of particular significance to men traverses all of the proposed licences, and makes a number of features related to men’s traditional initiation practices.
The native title party contends that it has an obligation to other Martu people to maintain and protect sites of particular significance within the proposed licences (at 4.26).
In relation to sites that are said to be of particular significance to men, the native title party asserts that the sites are considered ngulu (meaning dangerous or secret) and, therefore, cannot be accessed by women or uninitiated men. The native title party contends that inappropriate access to the ngulu areas could cause sickness or injury, and that information about the areas is strictly controlled and managed. Accordingly, a properly constituted group of people is required before the sites can be accessed or spoken about (at 4.27).
The native title party argues that the nature of the country on, and surrounding, the proposed licences is such that any entry onto parts of the proposed licences or the surrounding country that has not been agreed with the native title party would be likely to result in interference within the meaning of s 237(b) (at 4.28). The native title party also contends that the removal or interference with objects found in the natural environment, such as rocks and stones, will interfere with the Jukurrpa, and would constitute interference for the purposes of s 237(b) (at 4.29).
Furthermore, the native title party submits that the nature and number of sites and areas of particular significance within and around the proposed licences reduces the utility of an endorsement on the grant of the proposed licences drawing the grantee party’s attention to the AHA. In particular, the native title party states that certain activities permitted by the proposed licences may constitute interference for the purposes of s 237(b) but may not contravene s 17 of the AHA (as detailed at 4.4-4.13 of the contentions), particularly in relation to gender-restricted sites and areas (at 4.30). The native title party also submits that the condition requiring the grantee party to offer to enter into a regional standard heritage agreement (‘RSHA’) will not affect the likelihood of interference (at 4.31). As the Government party has not provided any submissions in this matter, I cannot rely on the assumption that the Government party will impose the usual condition requiring the grantee party to offer to enter into an RSHA at the request of the native title party. However, I do note that the grantee party has indicated its willingness to enter into an RSHA with the native title party.
In respect of the RSHA, the native title party argues that:
·the RSHA’s protection is limited to the conduct of heritage surveys for ‘ground disturbing activity’;
·the nature of the sites within the proposed licences is such that even so-called ‘non-ground disturbing activity’ (such as examining and chipping rocks) would require monitoring by the native title party;
·the RSHA does not accommodate the need for access to and information about certain places and sites within the proposed licences to be restricted to a particular gender or class of people;
·the RSHA does not address the fact that mere unauthorised access to sites or areas of particular significance is likely to cause interference; and
·the RSHA potentially facilitates interference by permitting the grantee party to conduct certain activities, including access, without the native title party’s consent.

The native title party submits that meaningful consultation and negotiation between the native title party and the grantee party is necessary to ensure that sites or areas of particular significance are not likely to be interfered with. They state this is also important so that members of the native title party can fulfil their cultural obligations to other Aboriginal people in the Western Desert, and ensure that the impact on the area is considered and managed in accordance with law and custom (at 4.32).
The contentions are supported by information in the women's affidavits, which establish that E53/1623 has areas of particular significance to the east, as well as important areas near Well 9, and deep holes, all of which are within that proposed licence, and which appear to be of particular significance, and of a gender restricted nature. These include 'secret women's places'. Other areas are touched on in relation to the two other proposed licences, but not in the detail which is provided in relation to E53/1623.
The evidence of Mr Wongawol does establish that several Jukurrpa traverse all of the proposed licences. The evidence in relation to two of the Jukurrpa is detailed and supports the existence of sites and areas of particular significance on all of the proposed licences related to the path of the Jukurrpa.
According to Mr Wongawol, there are two sites within E53/1623 where particular Jukurrpa intersect. One of these sites is specifically identified as a men’s site, whereas the other is said to be an important place for law business for the both native title holders and other Martu people. He also outlines special areas (including hills, named bores and special drainage areas) within E53/1622 and E53/1624, where he says a specific Jukurrpa exists which also relates to a particular type of bush tucker, which is not found 'just anywhere'. Evidence suggests that these are sites and areas of particular significance to the native title party, particularly for certain cultural reasons.
Furthermore, Mr Wongawol states that there are certain objects that were left by a Jukurrpa which traverses each of the proposed licences that are important for men’s initiation law. According to Mr Wongawol, the native title holders will not be able to conduct law business if the objects are taken.
Based on the evidence and information available, I accept that these proposed licences have sites of particular significance, and there is evidence that they are of a gender restricted nature both to males and females, particularly in various parts of E53/1623. I also accept that the nature and cultural complexity of the sites will make it difficult for the grantee party to avoid interfering with them, albeit inadvertently. As such, I am not satisfied that the regulatory regime, or the grantee party’s intentions as outlined in its contentions, will significantly reduce the risk of interference with areas or sites of particular significance within the meaning of s 237(b).
In conclusion, having considered the evidence before me, I find that the grant of the proposed licences is likely to interfere with areas or sites of particular significance to the native title holders.

Determination

The determination of the Tribunal is that the grant of exploration licences E53/1622, E53/1623 and E53/1624 to Kingx Pty Ltd are not acts attracting the expedited procedure.

Helen Shurven
Member
5 July 2013

[2013] NNTTA 83

5 July 2013

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law

Legal Concepts

Native Title

Adverse Possession

Equitable Estoppel