Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson - [2009] NNTTA 72

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson, [2009] NNTTA 72 (10 July 2009)

Application No: WO08/1196

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

Wilfred Goonack and Others on behalf of Uunguu – (WC99/35) (native title party)

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The State of Western Australia (Government party)

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Geotech International Pty Ltd and Timothy Vincent Tatterson (grantee party)

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

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  10 July 2009

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, 35, 38, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (referred to below as Deputy President Sumner)
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner (as noted above, referred to below as Deputy President Sumner)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (referred to below as both Member and Deputy President Sosso)
Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Representatives of the Ms Ania Maszkowski, Kimberley Land Council
native title party: Mr Robert Houston, Kimberley Land Council

Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources

Representative of the
grantee party: Mr Paul Askins, Geotech International Pty Ltd

REASONS FOR DETERMINATION

On 27 August 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4117 (‘the proposed licence’) to Geotech International Pty Ltd and Timothy Vincent Tatterson (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 189.07 square kilometres located 244 kilometres northwest of Wyndham, in the Shire of Wyndham and East Kimberley. It is 100 per cent overlapped by the Uunguu native title claim (WC99/35– registered from 30 June 2000). No other native title claims overlap the proposed licence.
On 27 December 2008, Wilfred Goonack and Others on behalf of Uunguu (‘the native title party’) made an expedited procedure objection application to the Tribunal.
On 13 January 2009, Deputy President (DP) Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month 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 an adjourned status conference on 15 April 2009, parties requested further time for compliance with directions in an attempt to negotiate a heritage protection agreement. Parties agreed the additional time would either resolve the matter by way of agreement or enable compliance with directions for an inquiry to determine whether or not the expedited procedure is attracted.
The Government party lodged its contentions and evidence on 6 and 17 April 2009.
At a listing hearing on 4 June 2009, the native title party requested a further extension of time to allow collection of affidavit evidence. Contentions and evidence of the native title party were lodged on 11 June 2009.
At the listing hearing, the grantee party indicated it would rely on the evidence submitted by the Government party. Parties requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
On 29 June 2009, I was appointed by the President of the Tribunal as the Member for the purposes of the conduct of the inquiry.

Legal principles

Section 237 of the Act provides:

‘237 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 v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as, noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
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, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), DP Sumner (‘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 State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in relation to the proposed act

Government party documentation establishes the underlying land tenure on the proposed licence as predominately Vacant Crown Land (total overlap approximately 99 per cent). The remaining percentage is comprised of “Rainforest Areas” (it is noted that “Rainforest Areas” is also described in the relevant documentation as “Rain Forest Areas”, but, for convenience, the reference hereafter will be to “Rainforest areas”).
The entire area of the proposed licence is nationally heritage listed (NHL0106063) under the jurisdiction of the Department of Environment, Water, Heritage and the Arts.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licences.
Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and native title party reveals five sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licence as follows:

Site ID 14805 – Dalaiju/Lawley R. 7 (mythological, painting – permanent register, closed access, no restrictions), almost wholly overlapping the proposed licence;
Site ID 14806 – Yundu’Ndalu/Lawley R. 6 (mythological, painting – permanent register, closed access, no restrictions), wholly overlapping the proposed licence;
Site ID 14812 – Lun’Galungi/Lawley R. 8 (mythological, painting – permanent register, closed access, no restrictions), slightly overlapping the proposed licence;
Site ID 14969 – Lunbe (Lawley River 9) (mythological, man-made structure, painting – permanent register, closed access, no restrictions), significantly overlapping the proposed licence; and
Site ID 14970 – Yariyu (Lawley R. 10) (mythological, painting – permanent register, closed access, no restrictions), partially overlapping the proposed licence.

There is no current mineral exploration or mining activity in the area of the proposed licence; however, six surrendered exploration licences have been active variously between 1994 and 2005. Two temporary reserves were active variously from 1965 and 1969.
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).
In addition, the grant of the proposed licence will be subject to the following conditions:

No interference with Geodetic Survey Station R675 and mining within 15 metres thereof being confined to below a depth of 15 metres from the nature surface (condition 5); and
Prior written consent of the Minister responsible for the Mining Act 1978 to be obtained before any exploration activities are commenced on the foreshore, seabed and navigable waters (condition 6).

The following 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 Aboriginal Heritage Act 1972 (WA) 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; and
The land the subject of this licence affects Rainforest areas. The licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for Rainforest areas and Rainforest monitoring site or sites present within the tenement area.

Evidence provided by the native title party

The submissions of the native title party include the affidavit of Mr Albert Peurmora (‘AP Affidavit’) made in the following terms:
‘AFFIDAVIT OF ALBERT PEURMORA
I, Albert Peurmora, of 9 Forster Court, Broome, in the State of Western Australia affirm:
1.My name is Albert Peurmora. I live at 9 Forster Court, Broome but I am moving back to Kalumburu soon. I was born in 1968 in Derby.
2.My father and mother were both born in Kalumburu and are both Wunambal people. My father is from Lawley River which includes the country around the exploration area. My mother is from the crossing of the King Edward River, as you come in from the Mitchell Plateau.
3.I know this country very well. I am a senior traditional owner for the Lawley River area which includes the tenement area. Under our Law I have authority to speak for this country through my father.
4.I have been shown a map of the application area, where the grantee wants to explore and know this country well.
Community or social activities
5.The tenement falls with[in] Uunguu or Wunambal country.
6.I try to go to this country whenever I can. A few months ago I went up there for the day. We wanted to camp overnight but couldn’t. It generally costs a lot of money to get up there as it is very remote and hard country to travel through.
7.My ancestors lived there. My father’s two brothers are buried there in caves just west of the tenement boundary, near the coast.
8.There is very good fishing around this country. You can catch all kinds of fish. The sleep sharks come right up to the beach and you can feed them by hand. Bluey has a fishing camp at One Tree Beach where I stay sometimes. There is a site there, a cave painting with Wanjinas and paintings of snakes.
9.I hunt in the area down towards the road, just south of the tenement. I hunt emu, kangaroo, bush turkey and goanna and catch black bream and freshwater turtle. From the road there is lookout where you can see the whole valley including the tenement area.
10.There was a track from the road to Lawley River where my dad went with his brother Alec and Dr Crawford. He was an old anthropologist who walked through this country with my father.
11.I am on dialysis waiting for a kidney transplant. When I get that transplant I will go and camp in this country as often as I can, for a couple of weeks at a time. I need to make sure that I continue to look after this country.
Interference with sites of particular significance
12.There are rock art galleries in nine caves from the mouth of the Lawley River through to the coast at the northern edge of the tenement. These caves are known as the nine lighting caves.
13.These nine caves are especially important for my dad as this is where his surname comes from. Bangamorra which means lightning. There is supposed to be lightning in each of these caves. Where the tip of the lighting marked the rock. This country which includes the exploration area is called Bangamorra country.
14.I don’t know where all of them are as they are very difficult to find but they are full of Wanjina paintings, Gwion figures and other paintings. This is very important country for Wunambal people and these rock art galleries are sacred places.
15.There is one rock art gallery near One Tree Beach in a huge cave which I went to recently. I sat on the floor of the cave and looked up at the ceiling above me and there was a large Wanjina painting of a snake and many other paintings.
16.People used to live all through this country. You can find bush camps and canoes and other artefacts all up the coast. There were fireplaces and ash in the cave at One Tree Beach. I brought some ash back in a bottle.
17.My father’s two brothers are buried in this country and all my ancestors are buried there too. There would be burial sites all through this country including the exploration area.
Major disturbance to land or waters
18.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
19.You have to look after this country. That old man Dr Crawford – my dad made him walk with only his underpants on and he wasn’t allowed to even break a twig. He was really scared because of what he was told about how important this country was.
20.This is my country and people have to [be] really careful. When I heard the story from Dr Crawford, I got chills down my spine. If people don’t respect this country there will be problems.
21.The old men up in Kalumburu have told me that everyone was really scared of the Kandiwal people who are my people. These people were the boss men and warrior people. People would come into this country and get killed. You need to respect this country. If you don’t anything could happen.
22.The last time I was there, the helicopter broke down and people were telling me that this was a sign that I shouldn’t be leaving, that I belong here. Lewis Karadada said this. And then my sister Susan Bangamorra started to cry and the helicopter started.
23.People need to come and talk to the traditional owners before they go to Bangamorra country.’
The evidence of Mr Peurmora is uncontested and I accept it. Mr Peurmora says that he is one of the senior traditional owners for the Lawley River area which includes the area of the proposed licence. Even though Mr Peurmora is not one of the persons comprising the applicant and registered native title claimant, I accept that he is a member of the Uunguu claim group and has the necessary authority to speak for country on behalf of Uunguu.

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 interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). 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 (Smith at 451 [26]). The assessment is also contextual, taking 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 Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
I can infer from the fact that in recent years some tenements for exploration have been granted over at least part of the proposed licence area, that some exploration activity has taken place. However, the evidence does not suggest that this is an area of significant prior mining or exploration activity which will have already significantly interfered with the native title party’s community or social activities. The majority of the area is vacant crown land, with the exception of the small designated Rainforest Areas, suggesting little impediment to any community or social activities of the native title party. The evidence of Mr Peurmora suggests that the native title party has enjoyed access to the area up to the present day. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. The evidence establishes that Mr Peurmora and members of the native title party camp, hunt and fish in the general vicinity of the proposed licence; however, it is not specific as to the number of people involved or the frequency of the activities.

Mr Peurmora attests to the fact that he knows the country well, and, although it generally costs a lot of money to get there and it is very hard country to travel through, he tries to access the country whenever he can (AP Affidavit para 4 and 6). Mr Peurmora somewhat ambiguously refers to ‘country’ several times in his affidavit and it is unclear if this reference is in relation to the area of the entire Uunguu claim, which includes the proposed licence, or the area of the proposed licence, specifically. I am prepared to accept Mr Peurmora’s reference to ‘country’ establishes that he is in fact referring to the area of the proposed licence. Mr Peurmora’s evidence that he visited the area ‘for the day’ a ‘few months ago’ (AP Affidavit para 6) does not suggest intensive community or social activities of the native title party over the proposed licence. He provides no specific evidence of who accompanied him or what he did on this occasion. There are also no established communities within or in the near vicinity of the proposed licence which might help support an inference that the community or social activities are of an intensive nature. Mr Peurmora deposes to have been born in Derby and that his mother and father were both born in Kalumburu, some thirty kilometres from the eastern boundary of the proposed licence. Although Mr Peurmora says he will be moving back to Kalumburu soon, he presently resides in Broome, approximately five hundred kilometres south of the area of the proposed licence.
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. Government party documentation reveals that the size of the proposed licence is 189.07 square kilometres. The area of the Uunguu claim is approximately 25,909.45 square kilometres, much larger than the area of the proposed licence, thus making it less likely that exploration on the area of the proposed licence will impact on any community and social activities of the native title party, as contemplated in s 237(a) of the Act, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (now DP Sosso) (at [43]-[44])).
The evidence adduced in this matter does not support a finding that the native title party’s community or social activities are likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions p 14), I adopt the findings of DP Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.

Sites of particular significance (s 237(b))

The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows fives sites, all of which are closed, 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 ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in 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 Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea (‘Butcher Cherel’) (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.
Mr Peurmora attests to the presence of rock art galleries in nine caves, known as ‘the nine lighting caves’, found near the mouth of the Lawley River through to the coast at the northern edge of the proposed licence (AP Affidavit para 12). Tribunal mapping locates the mouth of the Lawley River as approximately two kilometres from the proposed licence’s southwest border. Mr Peurmora says that there is supposed to be lightning in the nine caves where ‘the tip of the lighting marked the rock’ (AP Affidavit para 13). Although Mr Peurmora does not know the specific location of all nine caves because they are very difficult to find, he deposes that ‘they are full of Wanjina paintings, Gwion figures and other paintings’ (AP Affidavit para 14). Mr Peurmora describes a recent visit to one such rock art gallery near One Tree Beach, approximately four kilometres from the western boundary of the proposed licence, where a large Wanjina painting of a snake and many other paintings are found (AP Affidavit para 15). The evidence of Mr Peurmora is that the rock art galleries are sacred places. From descriptions provided by Mr Peurmora as to the location of the nine lighting caves, I believe I can safely infer they lie near to and perhaps overlap the western border of the proposed licence.
The affidavit of Mr Peurmora also mentions the presence of artefacts, bush camps and canoes ‘all up the coast’, where people used to live throughout (AP Affidavit para 16). Mr Peurmora says that he father’s two brothers are buried in caves just west of the area of the proposed licence (AP Affidavit para 7) and that ‘there would be burial sites all through this country including the exploration area’ (AP Affidavit para 17).
The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of some sites in the general area of the proposed licence. I am satisfied that at least the nine lighting caves are all areas or sites of particular significance to the native title party.
I believe I can also safely infer that all of the five sites on the DIA site Register fall into this category given their characteristic, including that all of them are closed access and identifiable as mythological painting sites. In addition, the two sites on the western boundary of the tenement – Site IDs 14969 and 14970 – have been assessed under the criteria for a protected area in accordance with the AHA. Although both sites failed to meet the criteria of a protected area, it is my understanding that the fact they were considered for assessment means they have a higher importance and significance over and above that of a standard site registered on the DIA Register. The existence of these five sites, particularly the two which are considered of higher significance, is consistent with Mr Peurmora’s evidence as to the location of a number of caves containing paintings that are of significance to the native title party, within or in the near vicinity of the proposed licence. Tribunal mapping evidence also establishes that there are a number of registered sites to the west and south-west of the proposed licence area, several of which have also failed to meet the criteria of a protected area. Nevertheless, these sites, despite the failure to meet the criteria, are considered to be of a high importance and significance under the AHA.
Although I do not dispute or question the suggestion of Mr Peurmora with respect to potential burial sites over the area of the proposed licence, on the basis of the limited and speculative evidence before me, I am unable to make a definitive finding that there are burial sites over the proposed licence area.
I must now consider whether the presumption of regularity, 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. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel (at [81]-[91]), Member O’Dea canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party, in particular matters, which I adopt for the purpose of this determination. In that matter, the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
Taking all these factors into account – most importantly, the nature and extent of the sites of particular significance which have been identified – I find, in my opinion, that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). Unless there is close liaison between the native title party and grantee party through negotiations and agreement, there is a real risk of interference with them.
In making my decision, I have taken into account that the grantee party has not provided any indication of its intended manner of exploration and, even though I am satisfied the grantee party is aware of its responsibilities under the AHA, I find that there is a likelihood of interference. Had the grantee party provided evidence of its intentions and the steps it would take in order to address the issues raised by the native title party in relation to sections 237(a) and 237(b), I may well have been satisfied that the risk was remote.

Major disturbance to land and waters (s 237(c))

Lastly, 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 & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
Whilst no findings in relation to this topic are necessary, as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b), I have felt it may be helpful to the parties if I expressed an opinion on this aspect.
The affidavit of Mr Peurmora expresses concern that, if country is not respected, ‘anything could happen’ (AP Affidavit para 21). Mr Peurmora says people who come onto country need to come and talk to the traditional owners (AP Affidavit para 23). I accept that the presence of strangers on the area of the proposed licence may be upsetting to the native title claimants. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 at 359 [84]). In other words, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities to be conducted by the grantee party consistent with that permitted by the terms of the proposed licence. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to any offence at the grantee party, or, indeed, anyone entering the land without speaking to the former party, is not sufficient to establish that major disturbance is likely to occur. Whilst I note that there is a reference to a national heritage listing wholly affecting the area of the proposed licence, no party has made an issue of it, nor has there been any suggestion that the listing will have any major disturbance to land or waters, so I have concluded that the national heritage listing has but peripheral relevance to the issues before us. I find that there is not likely to be major disturbance to land or waters in this case.

Determination

The determination of the Tribunal is that the grant of exploration licence E80/4117 to Geotech International Pty Ltd and Timothy Vincent Tatterson is not an act attracting the expedited procedure.

[signed]

Neville MacPherson
Member
10 July 2009