WF(deceased) & Others on behalf of Wiluna v Lynsay Norman Masters and Another - [2014] NNTTA 21

NATIONAL NATIVE TITLE TRIBUNAL

WF(deceased) & Others on behalf of Wiluna v Lynsay Norman Masters and Another [2014] NNTTA 21 (27 February 2014)

Application No: WO2013/0879

IN THE MATTER of the Native Title Act1993 (Cth)

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

WF (Deceased) on behalf of Wiluna (WC1999/024; WAD6164/1998) (native title party)

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The State of Western Australia (Government party)

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Lynsay Norman Masters (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Member Helen Shurven

Place: Perth
Date: 27 February 2014

Catchwords: Native title – future act – proposed grant of prospecting 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 of particular significance - expedited procedure attracted

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

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 48

Cases:

Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustus Nominees’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99 (‘Cheinmora v Heron Resources’)
Cheinmora v Striker Resources (1996) 142 ALR 21, ('Cheinmora v Striker Resources')
Harvey Murray and Others/ Western Australia/ Drew Griffin Money [2011] NNTTA 91, (‘Murray v Drew Griffin Money’)
Karajarri Traditional Lands Association (Aboriginal Corporation) /Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri v ASJ Resources’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Karajarri Traditional Lands Association (Aboriginal Corporation)Western Australia/Geotech International Pty Ltd [2013] NNTTA 129 (‘Lungunan v Geotech International’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Parker v Iron Duyfken’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker v Western Australia’)
Ronald Crowe & Others/Charlie Lapthorne & Others/Western Australia/Zhukov Pervan [2008] NNTTA 71, (‘Crowe v Zhukov Pervan’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
WF (deceased) on behalf of Wiluna People v State of Western Australia [2013] FCA 755 (‘Wiluna v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA (‘Yindjibarndi v Western Australia’)

Representatives of the Ms Irene Assumpter Akumu, Central Desert Native Title Services Ltd

native title party:

Representatives of the Mr Luke Villiers, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum

Representatives of the Mr Lynsay Masters
grantee party:

REASONS FOR DETERMINATION

On 10 April 2013, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P53/1604-S (‘the proposed licence’) to Lynsay Masters (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The proposed licence P53/1604-S is 100 per cent overlapped by the Wiluna native title claim (WC1999/024 – registered since 24 September 1999) (‘the native title party’). The proposed licence is in the Shire of Wiluna and is approximately 9.90 square hectares (or 0.099 square kilometres) in size.
The native title party had until 12 August 2013 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 9 August 2013, an objection application was lodged with the Tribunal by WF (Deceased) on behalf of Wiluna. A conditional determination (‘Wiluna v Western Australia’) was made in the Federal Court by McKerracher J on 29 July 2013, which included areas claimed by the native title party. It will become effective once the court makes a determination as to the prescribed body corporate for the determination area. I note that the Wiluna Native Title Claimants are yet to nominate a prescribed body corporate as at the date of this decision, and so the persons whose names appear on the Register of Native Title Claims as the applicant for the native title party is the native title party for the purposes of future acts under the Act, until a prescribed body corporate is registered.
On 24 October 2013, I was appointed as the Member for the purpose of determination of this inquiry. The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted in relation to the proposed licence. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Final directions were made by the Tribunal in October 2013.

In compliance with the Tribunal’s directions:
·Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 7 October 2013;
·the native title party provided a statement of contentions on 21 October 2013 together with an affidavit of Mr Victor Ashwin sworn on 23 September 2013;
·the grantee party provided a statement of contentions on 28 October 2013;
·the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions in response to the contentions of the native title party on 20 November 2013;
·the native title party provided a reply to the grantee party and Government party contentions on 12 December 2013.
I consider this a matter which can be determined ‘on the papers’ as provided for in s 151 of the Act, and I note that no party takes issue with that approach.
The native title party requested non-disclosure directions in relation to paragraphs 6-10 of the affidavit of Mr Victor Ashwin, and final non-disclosure directions were issued on 27 November 2013 restricting the disclosure of that portion of the affidavit. However, nothing in those directions prevents me from disclosing an adequate basis for my decision in this matter.
On 23 January 2013, the Tribunal provided parties with a copy of a map to be used for the purposes of this determination prepared by the Tribunal’s Geospatial Services, and no comments were received in response.
The native title party’s contentions state they do not seek to pursue their objections under s 237(a) or s 237(c) of the Act. Therefore, this determination relates only to s 237(b).

Legal principles

Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
...
(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
...
In relation to the legal principles to be applied in this matter, I adopt the principles outlined by President Webb in Yindjibarndi v FMG at [15] and [17]-[18].

Evidence and information provided about the proposed act

Government party

The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; a report and plan from the Register of Aboriginal Sites maintained by the Department of Aboriginal Affairs (DAA) (formerly known as the Department of Indigenous Affairs (DIA)); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
Pastoral Lease (Yelma (PL 3114/1067) covers 100% of the proposed licence. The DMP Quick Appraisal indicates that one live tenement (Exploration Licence E53/1300) overlaps the proposed licence by 100 per cent. Two dead exploration licences entirely overlapped the proposed licence – E53/370 & E53/818 – and were live between 1992-1998 and 2002-2009 respectively. One dead mineral claim which overlapped the proposed tenement by 67 per cent - MC53/1507 – was live from 1972 until1974. One dead temporary reserve entirely overlapped the proposed licence – TR70/1643 – and was live from 1959 until1964.
The following endorsements will be imposed on the grant of P53/1604-S:
The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The grant of this licence does not authorise mining to be carried out on any portion of the land below 50 metres from the surface and the licensee is only authorised to prospect for gold.
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.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

The Licensee [sic] attention is drawn to the provisions of the:
·     Waterways Conservation Act, 1976
·     Rights in Water and Irrigation Act, 1914
·     Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·     Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licences for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

Advice shall be sought from the DoW if proposing any prospecting within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:

The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The following conditions will be imposed on the grant of the proposed licence:
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
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 equipment or other mechanised equipment.
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.
The State Solicitor’s Office (‘SSO’) outline in the Government party contentions that there are no DAA registered sites within the proposed licence, or any ‘other heritage places’. They reiterate the grantee party has confirmed his activities will be limited to recreational prospecting and there is no basis for a conclusion he will not act in accordance with stated intentions.
The SSO state there will be a condition prohibiting the grantee party use of scrapers without prior written approval from the relevant officer in the Department of Environment. They also intend to impose a Regional Standard Heritage Agreement (‘RSHA’) condition on the proposed licence, which means, among other things, the grantee party must notify the native title party about proposed on ground works, whether ground disturbing or not. They must consult with native title party about surveys of the land before commencing ground disturbing activities.
The SSO state the native title party’s concerns are speculative and a misapprehension of what is proposed by the grantee party. They also state there is no suggestion that the grantee party has ever acted in breach of conditions or law.
The SSO states the native title party’s submissions do not specify the locations of the sites or areas within the proposed licence that are of particular significance. They contend the native title party evidence is general and not sufficient. The SSO do not accept the proposed licence area is ‘site rich’. They argue existence of sites or places of importance on or near the proposed licence do not make it site rich.
The SSO state there is no evidence that the men only sites referred to by the native title party are within the proposed licence area and evidence about the jukurrpa reflects a spiritual concern to which s 237(b) does not apply. They outline that the grantee party is aware of the existence of jukurrpa sites and his legal obligations. He has agreed to work and consult with the native title party to avoid those sites.
The SSO state the area of the proposed licence has been, and is currently subject to, mineral exploration, exploration licences and a pastoral lease. They contend activities by the grantee party would be the same as, or no more significant, than this current activity.

Native title party

Mr Ashwin states he is a traditional owner for the Wiluna claim and can speak for the area covered by the proposed licence. I accept Mr Ashwin has authority to speak for this area on behalf of the native title party. I cite portions of Mr Ashwin’s affidavit only to the extent of needing to explain the reasons for my decision, due to the s 155 orders over part of that material.
The native title party state in their contentions (at 3.2–3.23) that sites or areas of particular significance not located within the proposed licence are able to be impacted upon by the grant and they cannot rely on protection from the Aboriginal Heritage Act (AHA). They state the nature of the sites, places and areas of particular significance within the proposed licence, the location of the proposed licence in a site rich area, and the RSHA is not effective to prevent interference under s 237(b).
The native title party state (at 3.24–3.25) that the men’s restricted jukurrpa traverses the proposed licence. It is present within the proposed licence and impacts on the land, creating landmarks and includes a hill associated with the jukurrpa. Its leaves a physical mark in the surrounding area located within the proposed licence. The native title party state they have an obligation to maintain and protect these sites of significance. However, there is very little detail in relation to the particular significance of such sites or areas, either within or near the proposed licence. There is nothing to say where the site within the proposed licence is located.
The native title party state (at 3.26–3.31) that the proposed licence contains ngurlu (dangerous, secret) sites that cannot be accessed by women and uninitiated men, and which will cause sickness or injury. These sites must be controlled and managed by a properly constituted group of people. The jukurrpa tracks themselves are not sites that are readily identifiable, and inadvertent interference is a possibility. They state physical interference with rocks and stones within the proposed licence will damage and interfere with the jukurrpa.
The native title party also state (at 3.30(b)–3.31) that low level interference will require monitoring by the native title party, and unauthorised access and protection of sites will require negotiation.
Mr Victor Ashwin’s affidavit outlines two areas and explains how they were made. He outlines an important dreamtime story for men and how that story relates to the two areas. He outlines that if interfered with, it can stop the native title party from doing men’s business and affect law time. He states it is dangerous if rocks are taken away (at 9), or even if people walk near these important sites. He states (at 11) the native title party already have an agreement with a mining company. However, there is no detail provided in the affidavit or contentions in relation to this agreement or its relationship with the current grantee party. The agreement may relate to the current live exploration licence which overlaps the area, but without further information, little more can be said on this point.
The native title party notes concerns about the State’s regulatory regime, citing, for example, the WA Auditor General’s report entitled Ensuring Compliance with Conditions on Mining dated September 2011 (at 2.16-2.17). The native title party states I should adopt my decision in Karajarri v ASJ Resources. I do note my comments in that case as extracted by the native title party (at 2.18), including in relation to various reports which had been written in relation to weaknesses of the states regulatory regime. However, I also concluded in Karajarri v ASJ Resources (at [48]-[53]) that each matter must be dealt with on its individual facts to determine whether the protective regime is sufficient to make it unlikely that there will be interference with any sites of particular significance found to exist.
The native title party submission also includes issues such as:
·the proposed licences contains sites and areas of particular significance, including a men’s restricted jukurrpa (at 3.24; Mr Ashwin’s affidavit at 4, 8 and 10);
·the jukurrpa has created landmarks in the area including a hill (at 3.24 and Mr Ashwin’s affidavit at 6-10);
·they have an obligation to maintain and protect sites of particular significance located within the proposed licence (at 3.25; Mr Ashwin’s affidavit at 3, 7 and 10);
·the nature of the country on, and surrounding, the proposed licences is such that entry onto parts of the proposed licences and surrounds which have not been agreed with the native title party would be likely to result in interference within the meaning of s 237(b) of the Act; jukurrpa tracks are not readily identifiable ‘by persons other than those instilled in the mysteries of the jukurrpa’, and interference with one part may cause interference to sites and/ or country located at other points along the jukurrpa (at 3.27; affidavit of Mr Ashwin at 3, 4 and 10);
·the removal or interference with objects found in the natural environment in the proposed licence would constitute interference for the purposes of s 237(b) of the Act, including interference with rocks and stones (at 3.28; affidavit of Mr Ashwin at 9);
·the nature and importance of the sites within the proposed licence is such that certain activities permitted by the licence will constitute interference pursuant to s 237(b) of the Act, but may not necessarily be prohibited under s 17 of the AHA (at 3.29 and the affidavit of Mr Ashwin at 9);
·the proposed condition requiring the grantee party to offer the RSHA does not mean it is unlikely that the future act will interfere with sites or areas of particular significance, including due to the gender restricted nature of the sites and areas of particular significance (at 3.30 and the affidavit of Mr Ashwin at 8); and
·meaningful consultation and negotiation between the native title party and the grantee party are necessary to ensure that sites of particular significance are not likely to be interfered with, including due to the nature of the sites or areas of particular significance and issues such as access and gender restricted areas (at 3.31; Mr Ashwin’s affidavit at 8 - 10 and 12).

The native title party contentions argue that 'in areas where a proposed future act has been demonstrated to be site rich, it is incumbent upon the Grantee Party to lead some evidence...to provide a basis upon which the NNTT might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas' (at 2.13).
The term site rich is to be deciphered carefully. In Lungunan vGeotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance, and it is not a necessary requirement to combine various sites into a general assertion that an area is ‘site rich’. I adopt the following reasoning from Member O’Dea in Lungunan vGeotech International at [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance[s], in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
Consequently, I conclude that the term 'site rich' is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party.
The native title party submitted a reply to the grantee and Government party’s contentions. They state that the grantee party will ‘scrape and detect’ with a 7 tonne dozer which has a high risk of interfering with areas of significance. They state the intentions of the grantee party to rehabilitate the land will not prevent interference with sites of particular significance, and that the rehabilitation will occur only after the damage is done. However, sites of particular significance must be found to exist to enliven s 237(b), and I deal with this further later in this decision.
The native title party also submits it is incorrect to assume that particular sites of significance have been protected by an existing agreement with another entity. The grantee party are not bound to that agreement, and it does not prevent them from destroying areas of significance. I agree with the native title party in that there is insufficient evidence in relation to the ‘existing agreement’ for me to draw any conclusions about how it may protect or affect sites on the proposed licence.

Grantee party

The grantee party has provided a statement of contentions which indicates (at 5) their willingness to enter into a Regional Standard Heritage Agreement (RSHA). He is also willing to consider an Alternative Heritage Agreement subject to reasonable terms.
In his contentions, the grantee party states (at 2) he is a recreational prospector, and will use a hand held metal detector to prospect for alluvial gold. He also has a D3c caterpillar dozer (7 ton) which will be used to scrape and detect. The grantee party states he has previously been granted 2 special prospecting licence tenements on which he has scraped and detected for gold under a DMP Programme of works and states that the areas were rehabilitated to the highest degree.
The grantee party states (at 3–4) the land in application P53/1604-S is less than 10 hectares, and will be accessed from the Wiluna Road through granted tenements E53/1299 and E53/1300 on existing tracks. The rehabilitation will be done in accordance with guidelines and conditions set out by the DMP.
The grantee party states he is aware (at 5) of the importance of the AHA and will comply with the agreement fully. There are no registered sites or other heritage places within the proposed licence.
The grantee party states (at 6) he is fully supportive of Mr Victor Ashwin’s views in his belief in the Jukurrpa as set out in his affidavit and suggests that Mr Ashwin states he has an agreement with the holders of E53/1300 which, the grantee party states, is the ‘primary tenement within which the grantee party has the special prospecting licence application’. The grantee party presumes that the Jukurrpa have been protected within that tenement and, therefore, already protected within the proposed application for P53/1604-S. Once again, as outlined above, there is insufficient detail about this existing agreement for me to draw any conclusions about its protective effects or otherwise. For example, E53/1300 appears to be held by an entity other than the grantee party in this matter.

Considering the Evidence in the context of s 237

Sites of particular significance (s 237(b))

As Deputy President Sosso explained in Silver v Northern Territory (at [88]), s 237(b) focuses the inquiry towards areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders of native title. The applicable principles are discussed in Silver v Northern Territory (at [88]-[92], [101]-[102]). In summary:
·the area or site must be of special or more than ordinary significance to the native title holders;
it must be known and must able to be located and the nature of its significance explained to the Tribunal (see Western Australia v McHenry);·
·even slight interference to a relevant area or site may be unacceptable in the context of s 237(b) but the interference must involve actual physical intervention;
·the relevant area or site will generally be located within the proposed licence, in order for it to be directly affected by grant, but an area or site of particular significance located outside the proposed licence may be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site; and
·there must be a real chance or risk of interference with the area or site (referring to Smith v Western Australia and Little v Western Australia, adopting the ‘real risk’ approach).
The grantee party’s intended activities and intentions are outlined at [36]–[40] above, and the Government party contentions and information in relation to s 237(b) is outlined at [14]-[22] above.
The native title party contentions and evidence in relation to s 237(b) are outlined at [24]-[35] above, and as detailed below. The native title party contentions in relation to s 237(b) of the Act state that the proposed licence contains sites of particular significance, including a jukurrpa and hills. The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker vIron Duyfken at [39]; Cheinmora v Heron at [43]). I also note the grantee party has made it clear in their contentions that they seek to consult with the native title party in relation to their activities by offering entry into an RSHA agreement.
I do note the native title party contention argues the Government party has not provided evidence as to which provisions of the RSHA it consider have a 'sufficiently protective effect' (at 3.16), and outlined (at 3.18) the defects it saw the proposed RSHA had in relation to other regional standard heritage agreements. Had the native title party made out with greater detail the existence of sites of particular significance in the proposed license, then I would have looked further into these arguments to see the level of protective effect they may have had.
However, given the general nature of the native title party evidence in relation to this limb of s 237, I do not intend to address these points in any great detail. I accept the jukurrpa and associated hills are important to the native title party, but there is insufficient evidence for me to conclude they are sites of particular significance for the purposes of s 237(b). In relation to the hills themselves, it is difficult to say whether they are on the proposed licence as these are two hills on the Tribunal’s geospatial mapping which are approximately 500 metres (Prominent Hill) and 2km (Bare Granite Hill) from the proposed licence, and it is not clear if any other hills exist on or near to the 9.9 square hectare area of the proposed licence.
In his affidavit, Mr Ashwin clearly refers to the native title party map attached to his affidavit, and refers to ‘two hills there on the map’. There appear to be only two hills on the map, (Prominent Hill and Bare Granite Hill) which are also reflected on Tribunal mapping. As such, I conclude these hill features, which are important to the native title party, are not likely to be on the proposed licence. The native title party do not appear to have mounted an argument that supports a finding that any activities away from the proposed licence but near to these hill areas would directly and permanently affect the proposed licence. In addition, the grantee party have indicated they will access the area using Wiluna Road and existing tracks. For example, the native title party has argued 'the nature of the country on, and surrounding, the tenements is such that any entry on to parts of the tenements or the surrounding country which has not been agreed with the Native title part[y], would be likely to result in interference within the meaning of s 237(b)’ (at 4.26).
The native title party cites Crowe v Pervan (at [99]) in support of this. However, in that decision, a site of particular significance was shown to exist on the relevant area, was identified in the evidence, and its 'particular sacredness' was explained by the native title party (at [90]). In addition, a vast array of sites were said to exist in the relevant area, including gender restricted sites, and none of this evidence was contested by other parties. In the present matter, the evidence provided by the native title party does not appear to be as extensive or detailed as that provided in Crowe v Pervan, and it is not clear whether the hills referred to are on the proposed licence. The Jukurrpa is said to exist on the proposed licence, but little information is provided about its particular significance to the native title party, the direction it extends across the proposed licence, or any other details that may have assisted the Tribunal, especially considering non disclosure orders had been made.
As mentioned, the native title party express concerns in their contentions about the adequacy of the State’s regulatory regime (at 2.14-2.21). I refer to the Tribunal’s previous findings in this regard, that both the existence of the AHA and the availability of the RSHA give rise to a presumption that sites will be protected, and the Auditor General’s Report does not necessarily affect this presumption unless evidence indicates that it should (see for example, Murray v Drew GriffinMoney).
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Cherelv Faustus Nominees (at [81]-[91])). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with those sites.
The native title party contentions in this matter argue there are circumstances where the AHA and the associated regime will not be sufficient to ensure that s 237(b) interference is unlikely, taking into account the nature of any site or area, whether there is an area or site of particular significance, the nature and size of such an area or site, and the intentions of the grantee party (at 3.12). In this respect I agree with the native title party and have taken into account each of these factors in relation to this limb of s 237. I do not believe that the native title party has, in their contentions or evidence, convinced me there is a site or area on or near the proposed license which is of particular significance and so I can draw no conclusions about the nature or the size of such an area or site.
I do not need, therefore, need to go to the next stage of making a judgement about whether interference with such sites is likely to occur. However, even if a site of particular significance was found to exist on the proposed license, I take into account the current and previous mining and exploration tenements, the stated intentions of the grantee party, and the fact that even exercising their full rights available under s 48 of the Mining Act they are still only entitled to undertake prospecting activities which are likely to be less intrusive on any such sites than previous mining or current exploration activities.
In drawing my conclusions in this matter I also have regard to the following:

Proposed prospecting activities are, by their nature, generally low-impact and non-intrusive; and
The AHA and its associated processes are likely to prevent interference with any area or site of particular significance to the native title holders.

In the circumstances, taking into account the evidence available, I conclude there is unlikely to be interference of the kind contemplated by s 237(b) of the Act in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of prospecting licence P53/1604-S to Lynsay Masters, is an act attracting the expedited procedure.

Helen Shurven
Member
27 February 2014