William Robert Richmond v Walalakoo Aboriginal Corporation RNTBC - [2015] NNTTA 20

NATIONAL NATIVE TITLE TRIBUNAL

William Robert Richmond and Another v Walalakoo Aboriginal Corporation RNTBC [2015] NNTTA 20 (21 May 2015)

Application No: WF2014/0009

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into a future act determination application

William Robert Richmond (grantee party)

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Walalakoo Aboriginal Corporation RNTBC (WCD2014/003) (native title party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: Mr J R McNamara

Place: Perth

Date of decision: 21 May 2015

Hearing date: 19 September 2014

Grantee party Mr William Robert Richmond (self-represented)

representative:

Native title party Ms Hayley Haas, KRED Enterprises Pty Ltd

representative:

Government party Mr John Carroll, State Solicitor’s Office
representatives: Mr Dennis Jacobs, Department of Mines and Petroleum

Catchwords: Native title – future acts – no agreement with native title party – application for determination for the grant of an exploration permit – s 39 criteria considered – on country hearing request not granted – on the papers – environment – audio and video evidence – sole operator – small operations – sites of particular significance – potential economic benefit – joint venture – assignment – uranium exploration – protection of sites – determination that the act may be done subject to conditions

Legislation: Aboriginal Heritage Act1972 (WA), ss 5, 18

Acts Interpretation Act 1901 (Cth), s 36
Environmental Protection Act 1986 (WA)
Mines Safety and Inspection Act 1994 (WA)
Mines Safety and Inspection Regulations 1995 (WA)
Mining Act1978 (WA), ss 63, 63AA, 66
Mining Regulations1981 (WA)
Native Title Act 1993 (Cth), ss 29, 30, 30A, 31, 32, 35, 36, 37, 38, 39, 76, 77, 109, 150, 151, 237

Cases:Australian Manganese Pty Ltd/Western Australia/Daniel Stock and other on behalf of the Nyiyaparli People [2008] NNTTA 38 (‘Australian Manganese v Stock’)
Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) and Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9 (‘Backreef Oil v Nyikina Mangala’)
Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland), [2006] NNTTA 3 (‘Cameron v Hoolihan’)
Cheinmora v Striker Resources NL & Ors; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources NL’)
Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 112 (‘Lungunan v Richmond’)
Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Western Australia/Areva Resources Australia Pty Ltd (formerly AFMECO Mining and Exploration Pty Ltd) [2013] NNTTA 74 (‘Lungunan v Areva Resources’)
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland, [2012] NNTTA 31 (‘Drake Coal v Smallwood’)
Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 (‘Evans v Western Australia’)
FMG Pilbara Pty Ltd and Another v Yindjibarndi #1 [2014] NNTTA 79 (‘FMG Pilbara v Yindjibarndi #1’)
FMG Pilbara Pty Ltd and Another v Yindjibarndi Aboriginal Corporation RNTBC [2014] NNTTA 82 (‘FMG v Yindjibarndi Aboriginal Corporation’)
Gregory Mark Jensen/Scott Gorringe & Ors (Mithaka People)/Queensland, [2011] NNTTA 41 (‘Jensen v Mithaka People’)
Ives Gold Mining Company Pty Ltd and Another v Ngadju [2014] NNTTA 73 (‘Ives Gold Mining v Ngadju’)
Keith Narrier and Others on behalf of Tjiwarl v WA Mining Resources Pty Ltd and Another [2014] NNTTA 112 (‘Tjiwarl v WA Mining Resources’)
Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd [2012] NNTTA 1 (‘Lockyer v Iron Duyfken’)
Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Buurabalayji Thalanyji Aboriginal Corporation’)
Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’)
Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’)
Page v Teelow (2002) 169 FLR 62; [2002] NNTTA 17 (‘Page v Teelow’)
Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha and Another [2014] NNTTA 59 (‘Peregrine Resources v Ashwin’)
Raymond Ashwin and Others on behalf of the Wutha People & Others v Dourado Resources Ltd & Another [2014] NNTTA 78 (‘Wutha v Dourado Resources’)
Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna, [2011] NNTTA 53; (2011) 257 FLR 175 (‘Seven Star v Wiluna’)
Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (‘Watson v Western Australia’)
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji, [2011] NNTTA 172; (2011) NNTTA 172 (‘Weld Range v Wajarri Yamatji’)
Western Australia v Thomas and Others (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’/‘Waljen’)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v Holocene’)
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/ Globe Uranium Ltd, [2007] NNTTA 37 (‘Freddie v Globe Uranium’)
WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 522 (‘WMC Resources v Evans’)
Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42 (‘Young v Western Australia’)

REASONS FOR DECISION

Background

The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2141 (‘the proposed licence’) to William Robert Richmond (‘the grantee party’) under the Mining Act 1978 (WA) (‘Mining Act’). The notice specified the notification day as 14 December 2011.
The notice provides that:
(a)The proposed licence covers an area of approximately 19 graticular blocks (approximately 61.91 square kilometres);
(b)The proposed licence is located approximately 116 kilometres south easterly of Derby, within Derby-West Kimberley Shire, Western Australia; and
(c)Grant of the proposed licence would authorise the grantee party to explore for a term of five years from the date of grant. The notice does not provide an option for renewal.
The notice also specifies that any person who is or becomes a native title party (with reference to a three month period from the notification day to take steps to do so: see s 30 of the Act) is entitled to procedural rights provided in Part 2 Division 3 Subdivision P of the Act. The notice also specifies that the Government party considered the act attracted the expedited procedure (see s 237 of the Act) and that the proposed licence could be granted unless, within four months from the notification day, a native title party lodged an objection with the National Native Title Tribunal (‘the Tribunal’) against the Government party’s statement that the expedited procedure applies. The four month notification period ended on 16 April 2012 (the four month date was moved from 14 April 2012 to the next working day of 16 April 2012 due to s 36(2) of the Acts Interpretation Act1901 (Cth)). At the end of this period, the Nyikina and Mangala claim (Tribunal file number WC1999/025; Federal Court file number WAD6099/1998) wholly overlapped the proposed licence. There were no other claims or any other determined native title holders overlapping the proposed licence.
On 16 April 2012, Daisy Lungunan and others on behalf of the Nyikina and Mangala native title claimants lodged an objection application (see s 32(3) of the Act), objecting to the State’s assertion that the expedited procedure applied in respect of the proposed licence (Tribunal file number WO2012/0336). Member O’Dea conducted an inquiry in relation to the criteria in s 237 of the Act and handed down his determination on 13 August 2013 that the act, being the proposed grant of the proposed licence, is not an act attracting the expedited procedure (see Lungunan v Richmond). Accordingly, grant of the proposed licence became subject to the right to negotiate provisions within Part 2 Division 3 Subdivision P of the Act.

The section 35 future act determination application and subsequent inquiry

Following the expedited procedure determination, the negotiation parties (see s 30A of the Act) were required to negotiate in good faith with a view to obtaining the agreement of the native title party to the granting of the proposed licence, whether that be with or without conditions to be complied with by any of the parties (see s 31(1)(b) of the Act).
On 17 April 2014, the grantee party applied under s 35 of the Act for the Tribunal to make a determination. Under s 38 of the Act the determination can be one of the following: that the act must not be done, that the act may be done or that the act may be done subject to conditions. An application can be made under s 35 if at least six months have passed since the notification day (the six month date being 14 June 2012) and no agreement of the kind mentioned in s 31(1)(b) has been made. The grantee party’s application fulfilled the requirements set out in s 35 of the Act.
On 24 April 2014, President Webb QC appointed me for the purpose of making the determination in respect of the proposed licence. I considered the conditions outlined in s 76 of the Act and subsequently accepted the determination application, pursuant to s 77 of the Act, on 5 May 2014. Parties were notified on 6 May 2014 that the inquiry had commenced.
On 13 May 2014, I convened a preliminary conference with the parties. One of the issues raised was whether the native title party intended to allege that either or both of the Government party or grantee party had not negotiated in good faith for the purposes of s 31(1)(b) of the Act. If the native title party alleged that either the Government or grantee party’s conduct had not been in good faith, the Tribunal would have to make a finding on that issue and would only have power to determine the substantive issue under s 39 of the Act if satisfied that the relevant party had negotiated in good faith (see s 36(2) of the Act). The native title party indicated that it would advise the Tribunal and parties at a later time as to whether good faith would be challenged. I also asked parties whether they saw benefit in participating in a s 150 conference to try and resolve any matter relevant to the inquiry. No party asked for this assistance.
Later that day, I made directions requiring parties to submit contentions and evidence in relation to the good faith issue, if challenged by the native title party, and also the criteria outlined in s 39 of the Act.
On 22 May 2014, the parties were provided with a map prepared by the Tribunal’s Geospatial Services showing the proposed licence, the claim boundary, topography, Aboriginal communities and Aboriginal sites recorded with the Department of Indigenous Affairs (‘DIA’, now Department of Aboriginal Affairs, ‘DAA’). This map was later replaced, as described below.
On 17 June 2014, Ms Haas, representative for the native title party, emailed the Tribunal and parties advising that the native title party ‘does not intend to submit contentions or evidence in relation to the good faith obligation’. Following this advice, the Tribunal informed parties on 23 June 2014 that directions 1-5 (on the good faith issue) made on 13 May 2014 are vacated, though the aspect of direction 4 providing that the Tribunal can provide mediation or s 150 conference assistance is still open and remains open at any time prior to a determination being handed down.

Federal Court determination

Part way through this inquiry, the Federal Court made a determination in respect of the Nyikina and Mangala native title claim; this determination took effect on 29 May 2014 (see Watson v Western Australia). An entry for the Nyikina and Mangala People was made the same day on the National Native Title Register (Tribunal file number WCD2014/003); it recorded that native title exists in parts of the determination area and that the registered native title body corporate is the Walalakoo Aboriginal Corporation RNTBC.
Subsequent searches carried out by the Tribunal’s Geospatial Services confirmed that the whole of the proposed licence falls within the determination area, specifically within the area for which native title had been determined to exist. An updated Tribunal map was generated and provided to parties on 20 August 2014, with all features as above, but showing the proposed licence in relation to the determined area. Parties were informed that the Tribunal intended to use this map as part of the decision-making process and allowed a seven day period for comments. No comments were received.
Where a claim is determined successfully, the note at s 30(2) of the Act provides that the registered native title claimant will be succeeded as a native title party by the registered native title body corporate (‘RNTBC’; see also s 30(1)(c)). Noting this, in addition to the absence of any other native title parties overlapping the proposed licence, the ‘native title party’ for the purposes of this inquiry is Walalakoo Aboriginal Corporation RNTBC, though my references to the ‘native title party’ shall be inclusive of the preceding Nyikina and Mangala registered claim, as appropriate.

Material received (directions made 13 May and amended 30 July and 21 August 2014)

Accompanying the grantee party’s Form 5 were the following:
(a)Tenement Register Search;
(b)DAA Aboriginal Sites Database Search results and map for the subject tenement
(c)Tengraph Quick Appraisal for the subject tenement;
(d)Section 29 notice;
(e)An email from DMP to Mr Richmond dated 19 March 2014;
(f)An email from DMP to Hayley Haas dated 20 March 2014 with subject heading WM2014/0007; and
(g)A letter from DMP to Bill Richmond dated 26 March 2014 with subject ‘Application for tenement E04/2141 by William Robert Richmond’, enclosing withdrawal Form 22.
In compliance with the directions made on 13 May 2014, the Government party submitted a statement of contentions (‘GVP Contentions’) on 7 July 2014 regarding the s 39 criteria, together with the following:
(a)GVP Doc 1 – Mining tenement register search extract for the proposed licence, created on 6 May 2014;
(b)GVP Doc 2 – s 29 notice for the proposed licence;
(c)GVP Doc 3 – Tengraph quick appraisal for the proposed licence, including information on the area covered, the land affected, any present or past tenements affected and services affected;
(d)GVP Doc 4 – Tribunal map of the proposed licence, prepared for this inquiry showing the claim area and other features (the earlier map circulated to parties, see [10] above);
(e)GVP Doc 5 – Map of the proposed licence and other features prepared by DMP, dated 6 May 2014;
(f)GVP Doc 6 – Draft tenement and endorsement and conditions extract for the proposed licence, prepared by DMP and dated 6 May 2014; and
(g)GVP Doc 7 – Search results extract from DAA’s Aboriginal Heritage Inquiry System (Aboriginal Sites Database) dated 6 May 2014 in respect of registered sites, showing no registered Aboriginal sites.
The grantee party was due to submit contentions and evidence regarding the s 39 criteria on 11 July 2014. No material was received. On 18 July 2014, the Tribunal emailed the grantee party asking for an explanation and mentioned that an email with supporting reasons could be sent through if the grantee party wished to ask whether an extension could be granted. The grantee party responded on 21 July 2014: ‘I rely on the states submission’.
On 29 July 2014, Ms Haas emailed the Tribunal asking for an extension to the native title party’s compliance date (then 8 August 2014) with reasoning relating to the timing of the grantee party’s response affecting the timing of an upcoming meeting of the native title party. An extension was granted and the directions were amended on 30 July 2014, such that native title party compliance was due on 18 August 2014.
On 16 August 2014, the grantee party emailed the Tribunal and parties indicating he ‘may lodge contentions and needed further time to do so’. After considering viewpoints from the other parties (Ms Haas opposed this request and DMP provided a neutral response); the fact that five weeks had passed since the grantee party’s compliance date; the reliance placed on the grantee party’s advice that it was relying on the State’s submission; and the approach the Tribunal had taken in other matters (see for example, Tjiwarl v WA Mining Resources at [12]-[14]), parties were advised on 18 August 2014 that I would not grant an extension nor accept any contentions submitted by the grantee party. In appropriate circumstances, the Tribunal can proceed to make a determination where there is no material from one of the parties (see Ives Gold Mining v Ngadju at [22]-[26]).
On 18 August 2014, the native title party provided the Tribunal and parties with a statement of contentions (‘NTP Contentions’), together with:
(a)The affidavit of [name withheld for cultural reasons], affirmed on 16 August 2014 with the following annexures:
(i)     A – Map of the proposed licence prepared by DMP (dated 14 August 2014);
(ii)   B – An earlier affidavit of [name withheld for cultural reasons] (‘[name withheld for cultural reasons]’s 2013 affidavit’) submitted during the Tribunal’s expedited procedure objection inquiry (Lungunan v Richmond; WO2012/0336) with (i) a map of the proposed licence (prepared by the Tribunal on 29 November 2012) and (ii) DAA search results extract showing four other heritage places within the proposed licence. I note that only pages 1 and 3 of this extract were provided, however, this information is publicly available and is also described in Lungunan v Richmond at [16]. The inquiry determination indicates that this affidavit was affirmed on 10 April 2013;
(b)The affidavit of Ms Annie Milgin (she notes her bush name is Nayina), affirmed on 14 August 2014, with a map prepared by DMP showing the proposed licence (dated 14 August 2014);
(c)The affidavit of Mr Anthony Watson (Aboriginal name Jilkindi), affirmed on 18 August 2014 with the following:
(i)    A – Map of the proposed licence, prepared by DMP and dated 14 August 2014;
(ii) B – Synopsis and outcomes from Tribunal-assisted mediation;
(iii) C – A copy of a handwritten letter from Mr Richmond to Mr Jason Diss at DMP dated 8 September 2013 regarding the proposed licence, with a copy of Mr Richmond’s tenement application for the proposed licence as received by DMP on 8 July 2011;
(iv) D – A Mining Warden decision (MPF Exploration P/L v Ashburton Minerals Ltd & Anor [2013] WAMW 9), to which Mr Richmond was a respondent, delivered on 3 April 2013 regarding exploration licences 80/3331, 80/3332, 80/4384 and 45/3731;
(v) E – A Mining Warden decision (Legendre v Richmond & Anor [2012] WAMW 21) delivered on 8 August 2012 regarding exploration licences 51/1280 and 51/1281;
(vi) F – Pages 120-124 of a journal extract with reference (1997) 16 AMPLJ describing a Warden’s Court decision delivered on 10 March 1997 between David Jones Roberts and William Robert Richmond; and
(vii) G – Extracts from the Nyikina and Mangala Mardoowarra Wila Booroo Natural and Cultural Heritage Plan, by John Watson, Anthony Watson, Anne Poelina, Neville Poelina, William Watson & Jo Camilleri on behalf of Nyikina and Mangala custodians, dated December 2011 (cover pages and pages 73-79 provided);
(d)‘Submission in response to the Aboriginal Heritage Bill 2014 (WA) - Draft Bill for Public Comment’ dated 4 August 2014 from KRED Pty Ltd (the native title party’s representative company) to the Chief Executive Officer of DAA; and
(e)A map showing the proposed licence and surrounding area prepared by DMP and dated 14 August 2014.

Due to the timing with receiving the native title party’s material (there were some technical difficulties), the Government party requested a two-day extension for the reply opportunity in the directions made on 30 July 2014. I granted this request and amended directions on 21 August 2014, such that the Government party and grantee party were at liberty to submit a reply to the native title party’s material on or before 27 August 2014.
On 22 August 2014, the grantee party submitted to the Tribunal and parties its reply material (‘GP Reply’), consisting of a six-page statement (which largely addressed specific paragraphs within [name withheld for cultural reasons]’s affidavit), together with various attachments (see Attachment A below).
On 27 August 2014, the Government party submitted a statement in reply (‘GVP Reply’).

On country hearing request and further material received

The native title party’s contentions contained a request for an on-country hearing to take place, explained at paragraphs 55-63 of the NTP Contentions as follows:
55. The NTP submits that the evidence outlined in the abovementioned affidavits requires a hearing ‘on Country’ at a safe place within the proposed tenement (at or near Nine Mile Pool) in the presence of the NTP in order for the Tribunal to adequately determine the relevant issues in this matter.
56. The following evidence support the NTP’s contention that the issues for determination cannot be adequately determined on the papers in the absence of the parties:
d. [Name withheld for cultural reasons] deposes as to his inability to adequately explain in English what is required to be done and said on Country when entering the proximity of Jilibobel. [Referring to Affidavit of [name withheld for cultural reasons], affirmed 14 August 2014 paragraph 28]
e. Ms Milgin confirms [name withheld for cultural reasons]’s limited ability to convey complex information in English. [Referring to Affidavit of Ms Milgin paragraph 10]
f. [Name withheld for cultural reasons] deposes as to the need to demonstrate to the Grantee and the Tribunal in the cultural way what must be done to “stop the bad things on Country”. [Referring to Affidavit of [name withheld for cultural reasons], affirmed 14 August 2014 paragraph 29]
g. Ms Milgin confirms that it is “very very important” that [name withheld for cultural reasons] “speak the story in his way, in his language – the cultural way on the country” and that “the calling out to country can only be done in cultural way – in our language” in order to convey the significance of the sites in question and to protect both people entering the proposed tenement area and the sites.
h. Ms Milgin deposes that English “doesn’t have the words that need to be used in Walmajarri or Mangala for the warning of those places. It doesn’t show how you have to treat that place if you are going there”.
i. Mr Watson deposes that [name withheld for cultural reasons] “is getting elderly and frail now ... He is stronger and his message is much much clearer and more powerful when he gives it cultural way-in Walmajarri or Mangala-in spoken way.” [Referring to Affidavit of Anthony Watson, paragraph 9]
j. Ms Milgin and Mr Watson both depose as to the seniority of [name withheld for cultural reasons] and indicate that he is the correct person to speak for the Country the subject of the proposed tenement. [Referring to Affidavit of Ms Milgin, paragraphs 7 and 9; Affidavit of Anthony Watson, paragraphs 7-8]
57. In their affidavits [name withheld for cultural reasons] and Ms Milgin have each attempted to the best of their ability to explain in English the significance of the particular sites on the proposed tenement and what must be done in order to safely enter the correct parts of land. However, [name withheld for cultural reasons] has limited English skills. The evidence provided by the NTP indicates that describing in English:
a.     the need to avoid certain places;
b.     the mode of calling out and speaking to country the cultural way and calling out to the spirits;
c.     the actions to be undertaken to protect people from the danger associated with the places to avoid on the tenement;
d.     where actions are to be undertaken to protect people from the danger associated with the places to avoid on the tenement;
are, at best, crude and abbreviated translations of the full breadth of information the NTP contends is necessary to convey to the Tribunal for the Tribunal to have had sufficient regard to the s39 criteria under the NTA in making the determination whether the act may be done. The NTP also considers it necessary that the Grantee witness the evidence on country.
58. Although the NTP appreciates the Tribunal staff are unlikely to have a working knowledge of Mangala or Walmajarri languages, a hearing ‘on Country’ in which [name withheld for cultural reasons] can give evidence in his language and in the correct cultural way will, through tone, expression and physical demonstration, significantly expand the understanding of the Tribunal and will also allow for [name withheld for cultural reasons] to fulfil the responsibilities he owes under his traditional Law and culture, as a senior law man for the NTP.
59. A hearing on country would provide the Grantee with an additional opportunity to make submissions in the matter (as at the time of writing, no submissions had been submitted by the Grantee) and would allow the NTP to hear from the Grantee on the matter, and demonstrate their concerns to the Grantee about the Grantee’s proposed exploration activity on the tenement area.
60. Significantly, in the NTPs submission, an on country hearing would provide the Tribunal with the opportunity to adequately ascertain the capacity of the Grantee to lawfully exercise his rights under the grant of the tenement.
61. In Page v Teelow [(2002) 169 FLR 62 at [23]], the Tribunal found that if there is any doubt about the adequacy of the material before the Tribunal, and that inadequacy could be cured by oral testimony, then there is a statutory obligation under s 151(2) of the NTA on the Tribunal to convene a hearing. The NTP submits that in light of the concerns raised regarding the Grantee’s capacity, the failure of the grantee to provide any contentions or evidence and this breadth of the evidence to be conveyed by the NTP that cannot be done without demonstration in specific locales, the Tribunal should convene an on country hearing in order to adequately assess whether the act may be done.
62. The NTP contends that the effects of the grant of the tenement to the Grantee on the NTP under the criteria set out in s 39(1)(a) of the NTA and the NTP evidence in relation to s 39(b)-(f) of the NTA, support a finding that the act may not be done.
63. The NTP therefore submits that:
a. If the Tribunal finds that this matter can be heard on the papers, the Tribunal should determine that the act may not be done – that is, grant of tenement E04/2141 to the Grantee, should not be made.
b. If the Tribunal determines this matter cannot be determined on the papers, an on-country hearing should be convened by the Tribunal at Nine Mile Pool, near Myroodah Station Homestead.
c. If the Tribunal does not make either of the findings listed at 63(a) or 63(b) above, the NTP respectfully requests leave to file and serve further evidence in support of its objection to the Grantee’s s 35 application.
In [name withheld for cultural reasons]’s affidavit he states that he can’t explain in English what needs to be done and said on country for the ‘danger places in this tenement’ and he explains he needs to ‘show the cultural way – what we do to stop the bad things on Country’ (paragraph 29). Similar reasons are provided at paragraph 15 of Ms Milgin’s affidavit. Ms Milgin notes that she has been asked to translate but confirms [name withheld for cultural reasons] ‘needs to speak the story in his way, in his language – the cultural way on the country’ (paragraph 19 Milgin affidavit). Similarly, Mr Watson deposes that [name withheld for cultural reasons] is ‘stronger and his message is much clearer and more powerful when he gives it cultural way – in Walmajarri or Mangala – in spoken way’ (paragraph 9).
[Name withheld for cultural reasons] specifies that Nine Mile Pool is as close as ‘we can go to the danger places from that side’ (paragraph 30) and Ms Milgin explains that ‘outside to the east of the tenement at a safe place nine mile pool’ is a place where [name withheld for cultural reasons] can ‘show the cultural way’ and ‘explain the warning and the calling to country from that safe place’ (paragraph 19 Milgin affidavit).
The directions of 13 May 2014 provided that, if necessary, a listing hearing would be held in the week commencing 25 August 2014 and the amended directions of 30 July 2014 and 21 August 2014 moved this listing hearing opportunity to the week commencing 1 September 2014.
After considering the material submitted by parties, the Tribunal informed parties on 28 August 2014 that a listing hearing would be held on 4 September 2014. The grantee responded on 29 August 2014 as follows:
I will be in transit in the north & impossible to speculate where i may obtain communications. This will be the situation through to December.
In the circumstances i rely on the response i lodged.
Due to Mr Richmond’s expression of unavailability, I vacated the conference on 3 September 2014 by email. This email also contained my views on the matters that required resolution, my decision to tentatively reschedule the listing hearing to 19 September 2014 and the making of further directions. After setting out the background to the matter, that email reads as follows:
Given these circumstances, and the materials provided to date, these are the issues which require resolution before the Tribunal can determine the matter:
· The native title party, in its contentions, request the consideration of an on country hearing. The Government party in Reply oppose an on country hearing. The grantee party makes no reference to the request in its submission.
· The Government party challenge the admissibility of certain evidence from the native title party on the grounds of privilege, and on the basis that certain material does not meet evidentiary standards.
· The native title party, as an alternative to the request for an on country hearing being granted or a determination on the papers that the act may not be done, requests the opportunity to file further evidence and contentions. That proposal is objected to by the Government party.
Against this backdrop is the failure by the grantee party to comply with Direction 11 regarding making himself available for the listing hearing despite being aware of its likely scheduled date for some time, and advice from the grantee party representative that he will be generally out of communication for the rest of the year. The parties ought to be aware that the Tribunal is required to make a determination as quickly as is appropriate, and within six months after the making of a future act determination application, that is on or before 17 October 2014.
Future conduct of this matter
The listing hearing scheduled for 4 September 2014 shall no longer be held and is replaced by the scheduling outlined below.
Mindful of the operation and effect of the following sections of the Native Title Act 1993 (Cth): s 142 (opportunity to make submissions concerning evidence), s 146 (evidence and findings in other proceedings) and s 148(b) (power of the Tribunal to dismiss an application for applicant’s failure to proceed or comply with a direction) the Tribunal asks the parties to provide further information to the Tribunal by close of business 11 September 2014 as follows:
1.        The parties’ attention is drawn to the recent determination Areva Resources Australia Pty Ltd and Another v Walalakoo Aboriginal Corporation [2014] NNTTA 70 and in particular [67], [122]-[123] and [164]-[165] (a copy of the paragraphs is attached and the full decision is accessible by the link above). Noting the Government party contentions in Reply (paragraph 64) and the grantee party contentions in Reply (page 6), can the Government party inform the Tribunal about how the regulatory regime would address the activities contemplated, that is, uranium exploration.
2.        In relation to the stated lack of accessibility of the grantee party, the Government party argue that the native title party’s concern is based on hearsay. Noting the advice from the grantee party regarding his ability to comply with Directions and the annexures to his contentions in Reply, which included a newspaper article seemingly confirming the difficulty people have with ‘finding him’, can the grantee party provide further and more detailed information about how he intends to progress his future act determination application and how the other parties can ensure that contact is effected.
3.        In relation to the possible drilling program, the grantee party advised the Government party by letter in September 2013 of its intended work program (repeated at para 42 of the Government party reply). It is stated that the drilling program would be on a 50 metre grid with 50 metre spacing. In the Areva Resources matter the Tribunal noted that the drill holes would be 25cm diameter spaced 5 km apart with the ability to relocate them to avoid sensitive environmental and cultural heritage issues. Can the grantee party confirm that the proposal contained in the September 2013 letter is correct. The Government party may also wish to comment on this if it thinks it appropriate.
4.        The grantee party also states in the September 2013 letter (referred to in para 42 of the Government party reply) that “any drilling would be on a joint venture basis”. In the grantee party reply at p 6, it states “one couldn’t find a better company than Areva with world wide experience and good safety record to do business with. If. I managed to secure a joint venture with Areva.” Could the grantee party clarify this statement. In particular, whether there is or is not currently a joint venture with Areva Resources Pty Ltd. The Tribunal notes that following its determination in Areva Resources, it was reported that that company had abandoned its Kimberley uranium project because it was “not technically feasible”.
5.        The grantee party has not provided its view on the native title party’s request for an on country hearing. If it wishes to do so that response ought to be provided at the same time.
The Tribunal will consider the material provided as a result of the requests at items 1-5 above, and, should it be deemed necessary, a listing hearing will be conducted on 19 September 2014 at 11am WST. Parties will be advised earlier that week as to whether it will be held.
At the listing hearing, or beforehand if a listing hearing is not deemed necessary, the Tribunal will advise the parties of the steps the Tribunal will take to finalise the matter on or before 17 October 2014, including the possible time and location of a hearing, should that be deemed appropriate. In relation to the matters concerning the admissibility and relevance of evidence as raised by the Government party, the Tribunal will address the issues in its written determination.
On 3 September 2014, the native title party requested the opportunity to reply to the anticipated additional material of the grantee party and Government party. On 5 September 2014, I informed parties that leave is not granted to do so and indicated there would be the opportunity to comment at the listing hearing, if held.
In accordance with the 3 September 2014 directions contained within the above email, the grantee party sent a document (‘GP Additional material’) on 9 September 2014 clarifying those points. The Government party provided a document clarifying relevant points above (‘GVP additional material’) on 11 September 2014. There were some aspects of both sets of material that went beyond what I asked for, as explained below. After considering the additional material, the Tribunal decided to hold a listing hearing by teleconference on 19 September 2014.
During the listing hearing, I asked Ms Haas to clarify the meaning of paragraph 63 of the NTP Contentions (see [24] above) and she explained the intended interpretation of that paragraph is as follows:
(a) Option 1: on the papers. If the Tribunal determined that the matter could be determined on the papers then the native title party submits that the act must not be done;
(b) Option 2: on-country hearing. If the Tribunal determined the matter could not be determined only on the papers, the strong preference of the native title party is for further submissions and evidence to be made by way of an oral hearing on country;
(c) Option 3: Non-written evidence by means other than on-country hearing. If the Tribunal does not hold an on-country hearing, the native title party wishes to submit evidence they can’t provide in a written form via other means such as video recording or another form of demonstration.
Ms Haas explained the native title party wished for the proposed hearing to take place at Nine Mile Pool, approximately four kilometres to the east of the proposed licence (I note that Mr Richmond estimated it as seven kilometres to the east), as it is the best place to demonstrate cultural concerns, being in proximity to but at a safe distance from the areas [name withheld for cultural reasons] described as significant in his affidavit, and also suits for logistical purposes. There was discussion about whether the provision of evidence would involve moving from Nine Mile Pool; Ms Haas explained that travelling to the proposed licence area, after meeting at Nine Mile Pool, could only occur ‘to the extent that it’s possible’; it was apparent that travelling within the proposed licence was only a possibility and not the preference of the native title party. Ms Haas mentioned there could be scope to travel two kilometres to the west of Nine Mile Pool, which would still be outside of the proposed licence, or, if the weight of evidence would be diminished by not standing within the proposed licence area, the native title party could consider adjusting their demonstration so they are placed within the proposed licence area, though the latter would not enable the same type of demonstration that could be done from outside the proposed licence area. Ms Haas concluded that the native title party would use Nine Mile Pool as a starting point and move from there, though she could not be certain whether that movement would bring persons inside the proposed licence area. Ms Haas indicated she could request further consideration from the deponents about the location of the hearing but emphasised significant regard was had to Nine Mile Pool being best for demonstration purposes. Ms Haas estimated that half a day would be needed to provide the evidence.
Mr Carroll stated that the Government party’s reasons for opposing the request are set out in its submissions. He reiterated the view that certain components of the native title party’s request (namely wanting to demonstrate the native title party’s concerns to the grantee party and the opportunity for the native title party to hear from the grantee party on their ability to comply with their obligations) are regarded as improper bases for an on-country hearing. Mr Carroll stated that it would be inefficient and resource-heavy for the Government party to attend an on-country hearing.
Mr Richmond noted that the bulk of the proposed licence doesn’t have registered heritage sites within it, noting that four sites are located ‘marginally’ within the proposed licence (i.e. four other heritage places as described below) and briefly mentioning his view that those sites are to be excluded and that they wouldn’t be disturbed. Mr Richmond also opined that the cost for the on-country meeting would be ‘enormous’ and he referred to his commitments with four other Tribunal matters.

The latter part of the listing hearing involved discussion of option (c) at [32] above. Ms Haas explained that video evidence would be the secondary preference. I noted that the elements of interactive discussion and onsite physical demonstration would not be available through video evidence. Mr Carroll commented that Nine Mile Pool is not within the proposed licence area and suggested that the location issue could be addressed by video and the native title party’s objectives of giving a demonstration and conveying language and tone could be addressed through the video option.
The remainder of the listing hearing largely focussed on whether the native title party should respond to those aspects of the grantee party and Government party’s additional material which went beyond scope. The other parties did not oppose the native title party’s request to submit such a response. Later on 19 September, the Tribunal informed parties that leave was granted for the native title party to provide a reply by 30 September 2014 in relation to: (a) the aspects of the GP Additional material concerning water flow and environmental issues and (b) the aspects of the GVP Additional material regarding the regulatory regime and associated attachment. This statement of reply (‘NTP Reply’) was received on 30 September 2014 together with:
(a)Annexure A – extract from a Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’) report entitled ‘Surface Water – Groundwater Interactions in the Lower Fitzroy River, Western Australia’ dated August 2011;
(b)Annexure B – Report of the Secretary General of the United Nations entitled ‘United Nations system-wide study on the implications of the accident at the Fukushima Daiichi nuclear power plant’; and
(c)Annexure C – Newspaper article entitled ‘Another million reasons to probe uranium mining’ by Dave Sweeney, published by The Age on 9 December 2013.
Section 151(2) of the Act provides that the Tribunal may make a determination in relation to a right to negotiate application ‘by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.’ As Member Sosso described it in Page v Teelow (at [23]):
... only if the Tribunal is of the view that documents and other material lodged by the parties sufficiently address the matters in contention, is it permissible for an inquiry to be conducted on the papers. The wording of section 151(2) is mandatory. If there is any doubt in the mind of a Member conducting an inquiry about the adequacy of material before the Tribunal, and assuming that this inadequacy could be cured by the giving of oral testimony, then there is a statutory obligation placed on that Member to convene a hearing.
On 22 September 2014, the Tribunal emailed parties notifying them that I decided the matter can adequately be determined in the absence of the parties. I came to my conclusion after having:
(a)considered parties’ written submissions on this issue;
(b)provided the opportunity to hear from parties and discuss their viewpoints in full during the listing hearing; and
(c)considered the adequacy of the material before me in view of the issues for determination under s 39 of the Act.
In considering the necessity of the presence of parties, whether on country or not, for the purposes of s 151(2), additional factors were related. They were, in my view, the parties’ viewpoints on the cultural and customary concerns of the Aboriginal people involved, particularly in view of the communication reasons and the concerns of parties about the resources required to attend a hearing and the time taken (see s 109(1)-(2) of the Act). I note Member Sosso’s comment in Page v Teelow that the cost, delay and inconvenience for the parties by way of the holding of a full hearing is a further factor but not the decisive factor (at [34]). Ultimately, my decision was based upon the clear wording of s 151(2): the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. I am satisfied that the relevant issues can be determined without an oral hearing.
Within the Tribunal’s email to parties of 22 September 2014, I also informed parties of my view that an opportunity for the native title party to produce further evidence (by video, audio, written or other means accompanied by an adequate translation) ought to be provided. To assist in considering whether to allow further evidence, I issued further directions that day as follows:
By COB 26 September 2014, the native title party is to:
(a)      advise whether they wish to take up the opportunity to file further evidence by video,
audio, written or other means accompanied by an adequate translation;
(b)      advise how much time would be required for submitting that further evidence;
(c)       advise whether any prejudice might be suffered if a determination cannot be completed by
17 October 2014 (i.e. the six month time frame in s 36(3) of the Act)); and
(d)      acknowledge that, if a determination is not made by 17 October 2014, the Tribunal will
need to write to the Attorney-General to provide the reason/s for not making the determination within six months of the future act determination application’s lodgement.
By COB 26 September 2014, the Government party and grantee party are each to:
(a)      advise whether they agree to the intended opportunity for further native title party evidence
to be provided (and if not, to provide reasons);
(b)      advise whether any prejudice might be suffered if a determination cannot be completed by
17 October 2014 (i.e. the six month time frame in s 36(3) of the Act); and
(c)       acknowledge that, if a determination is not made by 17 October 2014, the Tribunal will
need to write to the Attorney-General to provide the reason for not making the
determination within six months of the future act determination application’s lodgement.
On 23 September 2014, the Government party complied with the 22 September 2014 directions. In addition to noting that no prejudice would be suffered if the determination was made after six months from the lodgement of the future act determination application (s 36(3) of the Act) and acknowledging the actions required in 36(3), the Government party wrote:
The government party does not oppose the NTP providing further evidence, however the government party presumes that any further evidence will be within the scope of the request in the NTP contentions. The government party seeks an opportunity to make submissions as to whether the NTP has fallen outside of that scope at the same time that the government party files its reply to any further evidence of the NTP.
Later on 23 September 2014, the grantee party provided its response to the 22 September 2014 directions, simply stating:
The Grantee Party is in agreement with the response of the Government Party items A , B &C. May I add an early determination will help to be able to me [sic] spend more exploration time away from communication facilities.
On 26 September 2014, the native title party provided its response as follows:
(a) It wishes to take the opportunity extended by the Tribunal to file further video or audio evidence of [name withheld for cultural reasons], accompanied by a translation;
(b) it anticipates being in a position to provide the abovementioned evidence by mid-November at the earliest, subject to the availability of [name withheld for cultural reasons] (who is currently in hospital) and taking into consideration resource constraints and logistical arrangements including sourcing equipment and meeting on-Country;
(c) it will not suffer prejudice if a determination cannot be completed by 17 October 2014. The Native Title Party relies on paragraphs 54 – 63 of its Statement of Contentions filed 19 August 2014 outlining the circumstances in which it would suffer prejudice;
(d) the Native Title Party acknowledges this requirement.
On 1 October 2014, I issued directions allowing the native title party to submit by 28 November 2014 further evidence from [name withheld for cultural reasons], in the form of DVD/video or audio recording accompanied by a translation and allowing a reply opportunity by 12 December 2014 for the grantee party and Government party. These compliance dates were extended on 27 November 2014 to accommodate a request of the native title party due to [name withheld for cultural reasons]’s health. On 17 December 2014, the native title party notified the Tribunal that due to [name withheld for cultural reasons]’s health, the native title party would not be submitting that further evidence and wished to rely on material submitted to date. The Tribunal informed parties that no further material would be received and a determination would be forthcoming.

Information about the proposed licence and intended activities

Within the future act determination application is a statement from Mr Richmond ‘that the native title party did not support uranium mining and did not wish to negotiate about this matter’. The subsequent material from parties and the related expedited procedure decision contain information about the proposed activities of the grantee party.
The grantee party states that the tenement is in a syncline ‘running east west and unlikely water would run north to the Fitzroy Flood Plain’ (page 2 GP Reply).
In a letter from the grantee party to DMP dated 8 September 2013 (Annexure C to Mr Watson’s affidavit, also referred to as the work program), the following information about the grantee party’s intended work is provided:
A work programm [sic] will consist of an on going survey on a grid of 100m spacing using a Geiger counter in the search for uranium. This will be conducted on foot to minimise damage to fauna.
Pending results a drilling program could follow to 200m depth using an RC rig the drilling would be on a 50m grid with 50m hole spacing.
Care will be taken and consultations and heritage with traditional owners prior to a drilling program.
This is a private operation at this stage. Drilling would need to be on a joint venture basis.
No heritage on ground surveys have been undertaken.
At this stage there is not a company policy but any joint venture would be required to liase [sic] with all parties for the benefit of Aboriginals on a successful project that goes into production.
In terms of the joint venture issue, Mr Richmond states ‘one must engage an experienced mining company in a joint venture capable of putting a project into production’ (page 2 GP Reply) and later refers to Areva (assumed to be Areva Resources Australia Pty Ltd, ‘Areva Resources’) as a company with ‘world wide experience and good safe record to do business with’ (page 6 GP Reply). However, within the grantee party’s additional material, it was clarified that the grantee party does not have a joint venture arrangement with another company, though he intends to commence discussions with other companies inclusive of Areva Resources.

Underlying tenure and usage

For the proposed licence, the Tengraph Quick Appraisal provided by the Government party indicates:
(a)the underlying tenure comprises:
(i)Indigenous-held pastoral lease (Myroodah; I 3114/1165), wholly overlapping the proposed licence;
(ii)Historical lease (H396/444) wholly overlapping the proposed licence;
(iii)Exploration permit 457, overlapping by 43.3 per cent;
(iv)Exploration permit 458, overlapping by 56.7 per cent;
(b)the proposed licence area was previously the subject of the following various dead/expired tenements:
(i)Four exploration licences: E 04/1078 (never granted and withdrawn in March 1999, which overlapped by 99.9 per cent); E 04/1552 (granted July 2006 and surrendered in July 2009, which wholly overlapped); E04/1927 (granted May 2010 and surrendered in June 2011, which wholly overlapped); E04/2030 (never granted and withdrawn May 2010, which wholly overlapped);
(ii)38 mineral claims (all granted in 1979, the last cessation date of surrender was April 1982 and the overlap ranged between 0.3 and 1.9 per cent);
(iii)Four temporary reserves: TR 70/212 (granted in February 1920, cancelled in June 1921, wholly overlapping); TR 70/3518 (granted in September 1965 and cancelled in April 1969, wholly overlapping); TR 70/6692 (granted in May 1978, cancelled in March 1979 and overlapping by 80.9 per cent); and TR 70/6693 (granted in May 1978, cancelled in March 1979 and overlapping by 14 per cent;
(c)the services affected comprise: one ‘Myroodah Uranium’, one ‘SSM-MYROODAH’, four minor roads, six tracks, one fence line, one Yard Symbolised and one well/bore with windmill.

Overview of Aboriginal heritage material

The Government party and grantee party submitted search results from the DAA’s Aboriginal Heritage Inquiry Database, indicating there are no registered sites. The native title party submitted the DAA Search results extract indicating there are four ‘other heritage places’ within the proposed licence. They are as follows, with reference to their location as per Tribunal mapping:
(a)Site 13614 (Myroodah Station: Swamp; status as lodged) overlaps a north eastern portion of the proposed licence;
(b)Site 13613 (Myroodah Station: Sandhill; status as lodged) overlaps the most northern right hand corner of the proposed licence;
(c)Site 13609 (Myroodah Station: Hills; status as lodged) overlaps the most eastern bottom corner of the proposed licence;
(d)Site 13608 (Myroodah Station; status as lodged) overlaps a south eastern portion of the proposed licence.
In [name withheld for cultural reasons]’s 2013 affidavit he lists the four other heritage places above. He also attests that there are other special sites he knows of that are not recorded with DAA (at paragraphs 23-24).
Tribunal mapping also indicates there is a cluster of various registered and other heritage places located approximately 12 kilometres north east of the eastern boundary to the proposed licence.
Information recorded with the DAA, whether registered or an ‘other heritage place’, is one source of information the Tribunal can take into account, though it is not a conclusive record of all cultural heritage within the relevant area. For the purposes of s 39, the Tribunal is to consider the evidence submitted by the parties to the inquiry and as is seen in the discussion of s 39(1)(a)(v) below, the native title party has submitted evidence about sites regarded as being culturally important.

Regulatory regime and proposed conditions of grant

Upon grant, the holder of an exploration licence has rights as conferred by s 66 of the Mining Act, the exercise of which are subject to conditions set out in s 63 of the Mining Act. There is potential, under s 63AA of the Mining Act, for the Minister to impose additional conditions for the purpose of preventing or reducing, or making good, injury to the land or to anything below the natural surface of the land, or consequential damage to any other land following the grant of the proposed licence.
Also, the Government party has indicated it intends to impose the conditions set out in the draft tenement endorsement and conditions extract, as follows:
ENDORSEMENTS
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.
In respect to Water Resource Management Area (WRMA) the following endorsements apply:
3.       The licensee 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
4.       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.
5.       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:
6.       The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.       Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·         50 metres from the out-most water dependent vegetation of any perennial waterway, and
·         30 metres from the out-most water dependent vegetation of any seasonal waterway.
CONDITIONS
1.       All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.       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.
3.       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 .
4.       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.
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 equipment 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.
7.       No interference with Geodetic Survey Station Myroodah and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
As noted in endorsements 1 and 2 above respectively, the proposed licence will also be subject to the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and the Environmental Protection Act 1986 (WA). An overview of the latter legislation was provided in Minister for Mines v Evans at [53]-[58] though I note amendments were made in 2003. As was stated in Peregrine Resources v Ashwin at [45]- [46] (with reference to Minister for Mines v Evans):
[45] The procedures under this legislation were outlined by the Tribunal in Minister for Mines v Evans at [53]-[58] and I adopt the findings outlined in those passages. Briefly, a proposal must be referred to the Environmental Protection Authority for assessment where the proposal is likely, if implemented, to have a significant effect on the environment. The referral of Mining Act tenements is administered under a memorandum of understanding entered into between the Environmental Protection Authority and DMP.
[46] The EP Act was amended in 2003 to incorporate provisions requiring approval before clearing native vegetation (Part V, Division 2). According to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), mineral activities are exempt from this requirement if carried out pursuant to an authority granted under the Mining Act and not carried out in designated areas (reg 5, item 20 and schedule 1).

The grantee party states that exploration or development must ‘meet stringent environmental and safety laws’ (page 6 GP Reply) but has not described them further.
The Government party outlined the regulatory regime specifically within its contentions, reply and additional material, explaining as follows:
(a)The proposed licence will be subject to Division 2 of Part 16 (Radiation Safety) of the Mines Safety and Inspection Regulations 1995 (WA) (‘MSI Regulations’) which is inclusive of regulation 16.7 (Preparation of Radiation Management Plan).
(b)The grantee party will be required to produce a radiation management plan where uranium exploration is to occur; the Government party states that the grantee party will have to comply with regulation 16.7 (which sets out the requirements of a radiation management plan) prior to commencing any drilling for uranium and notes regulation 16.2 and s 4(1) definitions within the Mines Safety and Inspection Act 1994 (WA) to support the assertion that it applies to exploration. This assertion appears to be supported by regulation 16.7(1)(b) which requires preparation of a plan for the safe management of radiation before mining operations commence.
(c)DMP’s ‘Guide to Uranium in Western Australia’ states that the radiation management plan must be produced and then be assessed and approved by the Radiological Council. The Government party notes that the plan must ‘consider the measures that can be taken to control the exposure of the employees and members of the public to radiation at or from the mine’ and ‘include a waste management system for the mine, details of which must include facilities and procedures involved in the handling, treatment, storage and disposal of radioactive waste’ (paragraph 19 GVP Additional material based upon regulation 16.7(2)).
(d)The grantee party will have to comply with other relevant regulations within Part 16 of the MSI Regulations. For example, breach of any of regulation 16.7-16.9 is an offence and the penalty in 17.1 applies to such offences.
The section of the Guide entitled ‘Uranium mining and the environment’ provides the following information in relation to exploration:
(a) The company has to apply for a Programme of Work which details the proposed exploration activities and covers environmental factors inclusive of: details of the environmental impact including the area of disturbed ground and tonnage to be disturbed; whether or not the proposed activity will impact on an ‘environmentally sensitive area’ (defined under the Environmental Protection (Clearing of Native Vegetation) Regulations 2005 (Cth)) or a registered heritage site under the AHA (with extra approval required if so); details of environmental management and rehabilitation practices; and the possibility of detailed environmental surveys dependent on the level of disturbance;
(b) The Radiation Management Plan required by DMP must address: the procedures for identifying and monitoring radioactive material; strategies to minimise potential radioactive contamination; and processes to minimise human exposure to radioactive material. I note that regulation 16.7(2) provides more detail about the requirements for a radiation management plan.
The Government party contends that it is relevant to s 39(1)(a) that the Government’s environmental assessment process will be activated if productive mining is proposed, referring to WMC Resources v Evans at [82]. Various components of the Guide provide information about State and Federal processes for uranium mining (e.g. page 23 detailing that a uranium project will be referred to the State’s Environmental Protection Authority and uranium mining is classified as a nuclear action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) requiring environmental assessment and approval if it is likely to have a significant environmental impact).

Legal Principles

As prescribed by s 38 of the Act, the Tribunal must make one of the following determinations: that the act must not be done, that the act may be done, or that the act may be done subject to conditions to be complied with by any of the parties. As for the last option, s 38(2) prohibits the Tribunal from imposing a condition which would have the effect of entitling the native title party to payments worked out by reference to the amount of profits made, any income derived or any things produced by the grantee party.
The Tribunal must assess the evidence provided by each party in terms of the criteria in s 39 of the Act, which reads as follows:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non-native title interests etc.
(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non-native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
The Tribunal must weigh the various s 39 criteria, and the Act does not require greater weight to be given to some criteria over others. It is a discretionary exercise in assessing the criteria, and the outcome of the assessment will depend on the evidence provided in relation to each criterion (see Western Desert Lands v Holocene at [37]).
Section 36(1) of the Act requires the Tribunal to take all reasonable steps to make a determination as soon as practicable (subject to s 37 of the Act).
Section 109(1) provides that the Tribunal must pursue the objective of carrying out its functions ‘in a fair, just, economical, informal and prompt way’ and in carrying out these functions may take account of the ‘cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved’ (see s 109(2) of the Act).
Section 109(3) of the Act outlines the Tribunal is not bound by technicalities, legal forms or rules of evidence. Although there is no burden of proof applicable, the Tribunal relies on the evidence provided in relation to the criteria (see Western Australia v Thomas at 157-158). Ultimately, a common sense approach to evidence is required and the determination will be based on logically probative evidence and application of the law (see Western Australia v Thomas at 162-163).

Summary of contentions and supporting documents

As explained above, the grantee party did not submit contentions or evidence by the compliance date. Subsequently, it provided a reply with various attachments, mainly consisting of newspaper clippings, and additional material as requested. By way of the grantee party’s statement that it relies on the State’s submission, it can be inferred that the grantee party seeks for a determination to be made that the act may be done without conditions. In the grantee party’s additional material, he clarifies that he looks forward to the matter being concluded on the papers. At various points within the inquiry, the grantee party relied on or supported the State’s position or material. While it is open to the grantee party to decide upon its expression in addressing the s 39 criteria, this approach resulted in there being less breadth in the material before me.
The Government party provided contentions, a reply, additional material and verbal viewpoints during the listing hearing, to support its contention that the Tribunal should determine that the act may be done without conditions. It submitted that this determination should be made without an oral hearing, as explained above.
The native title party took issue with specific aspects of the GVP additional material for the following reasons (paragraphs 8-11 NTP Reply):
(a)All paragraphs (especially paragraphs 22-23) other than 3-10 and 16 of the GVP additional material statement on the basis that they go beyond what the Tribunal sought (i.e. ‘for the Government party to inform the Tribunal about how the regulatory regime would address the activities contemplated, that is, uranium exploration’); and
(b)DMP’s Guide to Uranium in Western Australia - the native title party contends that the Tribunal should have regard to page 22 only and disregard the remainder on the basis that it goes beyond what the Tribunal asked for. The native title party states that the Guide ‘puts forward a policy position about the safety of the nuclear industry as a whole which would be disputed by certain sections of the community, including the NTP’ (paragraph 10 NTP Reply). As noted at [37] above, the native title party has submitted Annexure B and C of its reply regarding ‘the controversial nature of uranium mining and nuclear facilities, particularly in relation to safety and the environment’ (paragraph 11 NTP Reply).
The native title party submitted that the Tribunal should determine that the act may not be done. However, it did so within a three-tiered summary of its submission: (a) if the Tribunal finds the matter can be heard on the papers, then the Tribunal should find that the act may not be done; (b) if the Tribunal determines the matter cannot be determined on the papers, then an on country hearing should be held; and (c) if neither (a) or (b) occur, the native title party requests leave to submit further evidence ‘in support of its objection to the Grantee’s s 35 application’ (at paragraph 63 NTP Contentions). The Government party objected to the proposition in (c). I reiterate that, during the listing hearing, the native title party’s representative Ms Haas clarified that the intention of (c) above was to request, in the event an on country hearing is not held, that the native title party be allowed to submit further evidence that couldn’t be provided in written form via another means (such as video recording or some other form of demonstration). As has been explained above, directions were made on 1 October 2014 (amended on 27 November 2014) allowing the native title party the opportunity to submit further evidence by video/DVD or audio recording, however, that material could not be submitted.
The native title party contentions rely on documentary evidence provided in the affidavits and accompanying attachments of [name withheld for cultural reasons], Ms Annie Milgin (also known as Nayina) and Mr Antony Watson (also known as Jilkindi).
[Name withheld for cultural reasons] writes that he was born in 1922, is a senior man for the Nyikina Mangala people, his mother was Walmajarri and his father is Mangala. At paragraph 4 of his affidavit, he states ‘under our Law, I can speak about this place in the map, attached at A’ (being a map of the proposed licence prepared by DMP). [Name withheld for cultural reasons]’s seniority and his authority to speak for the area covered by the proposed licence is also attested to by Ms Milgin and Mr Watson. Ms Milgin states that he is ‘a very senior cultural man for us’ and ‘he has been around those places on the map for years. He has been there from young fellow and worked there the longest time’ (at paragraphs 6 to 9 Ms Milgin’s affidavit). Mr Watson also deposes to [name withheld for cultural reasons] being the ‘right cultural person’ to give evidence about the area of the proposed licence because ‘he carries out the law and culture program for the Nyikina Mangala people’ and because he grew up with the old people who held the knowledge for country which [name withheld for cultural reasons] now passes on (at paragraphs 6 to 8 Mr Watson’s affidavit).
Ms Milgin is a senior Nyikina Mangala traditional owner, born at Paradise Station and the daughter of a Nyikina man and a Mangala woman. Ms Milgin has provided a map of the proposed licence with her affidavit and she states ‘I know this country on the map for a long, long time’ (paragraph 6).
Mr Watson explains that he is a Nyikina Mangala man, being the son of a senior law man for Nyikina Mangala, and is one of the directors of the Nyikina Mangala People’s registered native title body corporate Walalakoo Aboriginal Corporation. He was born in Derby and lives in Jarlmadangah community, around 20 kilometres from the north west of the proposed licence. Within his affidavit, he refers to a map of the proposed licence and states that he knows the area very well.
I accept that [name withheld for cultural reasons], Ms Milgin and Mr Watson are familiar with the area of the proposed licence and are authorised to give evidence on behalf of the native title party.
In relation to Mr Watson’s affidavit, the Government party objects to the admissibility of Annexure B (i.e. the Tribunal’s synopsis and outcomes document prepared during mediation under s 31(3) of the Act) as it contains information provided on a confidential and without prejudice basis. The native title party requested the opportunity to respond to this point, however, I indicated the Tribunal had sufficient information and it was not necessary to receive any further material from any party on that point.
Section 31(4) of the Act prohibits the Tribunal from using or disclosing information obtained during s 31(3) mediation for any purpose other than for providing that mediation assistance or establishing the good faith issue unless the person who provided it to the Tribunal gave their prior consent. Even though the synopsis and outcomes document was not provided by a party as it is a Tribunal document, it contains information put forward by parties within a confidential process as far as ss 31(3) and (4) allow. I note that good faith was not challenged within this inquiry and the Tribunal did not receive the prior consent (of persons providing the information contained within the synopsis) to use that information beyond the purposes in s 31(4)(a) and (b). I also note that the document itself contains the words ‘confidential and without prejudice’ and I am satisfied that the circumstances and applicable law do not allow for a departure from that. Therefore, the document shall not be taken into consideration.
The Government party also asserts that the paragraphs in Mr Watson’s affidavit regarding Warden’s Court decisions and the associated Annexure F should not be given any weight, claiming that they are irrelevant. I have commented on this material at [180] below.

Section 39 Criteria

For ss 39(1)(a)(i)-(iv), the native title party has addressed them in a collective manner (see paragraph 18 NTP Contentions). The grantee party’s contentions have not been directed specifically to each sub-section.
The Government party has mostly addressed the criteria separately, apart from some contentions regarding s 39(1)(a) generally. The Government party makes the comment that, apart from two main concerns of the native title party (regarding sites of significance and water sources), the native title party’s contentions do not draw a link between the evidence and the criteria (paragraphs 43-44 GVP Reply). As the Act requires the Tribunal to take account of each sub-section, I will approach them separately and categorise relevant aspects from the parties’ contentions and supporting material as far as possible.

Section 39(1)(a)(i) enjoyment of registered native title rights and interests and s 39(2) existing use of land or water by persons other than the native title parties

Enjoyment of registered native title rights and interests

The native title party’s registered native title rights and interests are those listed on the National Native Title Register, following the Federal Court’s decision in Watson v WesternAustralia that native title exists in parts of the determination area. In the proposed licence area (as per Tribunal mapping), the native title party holds exclusive native title rights and interests as follows:
Exclusive native title rights and interests
5.    Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule Three, being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded, are:
(a)    except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
(b)    in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
(i)    the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes;
(ii) the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.

[Clause 6 omitted as it sets out non-exclusive native title rights and interests]

7.   The native title rights and interests referred to in paragraphs 5(b) and 6 do not confer:
(a)    possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others; nor
(b) a right to control the access of others to the land or waters of those parts of the Determination Area.
8.  Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to:
(a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
(b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(d)  water lawfully captured by the holders of Other Interests,

Even though environmental matters are governed by separate legislation, the wording in s 39(1)(f) is broad and environmental impact and the Federal and State environmental protection regimes can be considered (see Minister for Lands v Buurabalayji Thalanyji Aboriginal Corporation at [273]) and have been taken into account in the past when deemed relevant by the arbitral body. As Deputy President Sumner stated in Western Desert Lands v Holocene (at [185]):
Under this criterion the Tribunal can have regard to the environmental protection regime of the Government party described in Waljen (at 212-214) and Koara 2 (at 292-295), the findings of which are adopted. The environmental controls imposed by the Government party can be taken into account because they may assist to ameliorate the effect of the future act on some of the factors in s 39(1)(a).
Under this criterion, the Tribunal may have regard to the environmental impact of the future act: WMC Resources v Evans at [81]. The Tribunal may also have regard to the Government party’s environmental protection regime as described in Western Australia v Thomas/Waljen at 212-214 and Minister for Mines v Evans at [53]-[62], the findings of which are adopted here.
I note that the native title party, through the affidavit evidence of [name withheld for cultural reasons] and Ms Milgin for example, has set out its perception of the environmental risks associated with the targeting of uranium mining.
I am satisfied that there is no basis to rebut the presumption of regularity in the grantee party’s adherence to relevant legislation and guidelines regarding radioactive substances (for a similar finding, see also Freddie v Globe Uranium, in the context of an expedited procedure determination). However, I also find that uranium safety issues are essentially a matter for the State Government in terms of its environmental approvals for the grantee party’s project. The native title party’s wishes and proposals in relation to its perception of uranium mining have been discussed in relation to s 39(1)(b) above.

On-selling tenements

The native title party has also raised concern with what Mr Watson describes as Mr Richmond’s ‘history where he sells-on his tenements. We cannot know who Mr Richmond will sell the tenement to and whether the new explorer will be safe and work in the best way to protect our environment concerns’ (paragraph 21 Mr Watson’s affidavit).
The Tribunal has considered that the interests of the grantee party, such as its economic viability and capacity to comply with conditions imposed, can be relevant to s 39(1)(f). In Western Australia v Thomas/Waljen, when describing s 39(1)(f) generally, the Tribunal stated (at 176):
One of the issues that has arisen is whether the interests of the grantee party can be taken into account under this criterion. It was common ground that a grantee party as a party to the inquiry is entitled to procedural fairness and, to that extent, to have its views heard and taken into account. The more difficult issue is whether the substantive interests of the grantee party are to be considered. In our view it is legitimate for the Tribunal to consider those interests under this criterion.
One obvious interest of a grantee party is its economic viability and its capacity to comply with conditions that might be imposed. Grantee parties could be small prospectors who are converting their prospecting licences but who may not do much more than prospect and who might sell their interests in the tenement at some subsequent stage. In other cases they may be large Australian and multi-national companies. In our view we are entitled to have regard to the different capacities of grantee parties to comply with conditions. We are also entitled to take into account whether there has already been considerable expenditure at the exploration or prospecting licence phase.
Therefore, although the interests of the grantee party are not specifically mentioned in s.39(1), we believe that those interests may be relevant in a particular case and could be taken into account under s.39(1)(f).
In this matter, the grantee party intends for a joint venture to take place; Areva Resources has been mentioned specifically, for example page 6 of GP Reply: ‘one couldn’t find a better company than Areva with world wide experience and good safety record to do business with. If. I managed to secure a joint venture with Areva’. As explained above, the grantee party later clarified this statement indicating there currently is no joint venture in place, though he intends to make a proposal to Areva and contact other companies specialising in uranium for a ‘possible joint venture type deal’ (page 2 GP Additional). On the material before me, there currently are no solid plans for a particular company to be involved. The grantee party intends to involve another company in exploration activities, which supports the imposition of a condition regarding any joint venture partner or assignee being bound to the conditions the subject of this decision.

Contact between parties

The native title party has raised concerns about the accessibility of the grantee party. At paragraph 11 of his affidavit, Mr Watson/Jilkindi states:
In the past when I have met with Mr Richmond, he has told me that he does not have a phone number that he can be contacted on. Mr Richmond has told me that he relies on an email address and I know Nyikina Mangala have sometimes found it difficult to make contact with Mr Richmond or to get a response from him in reasonable time.
Also, at paragraph 16, Mr Watson takes issue with the statement in Mr Richmond’s 8 September 2013 letter to DMP (i.e. ‘at this stage there is not a company policy but any joint venture would be required to liase [sic] with all parties for the benefit of Aboriginals on a successful project ...’), asserting that the native title party do not have any reason to feel that the grantee party or any company subject to any joint venture will liaise with Aboriginal persons and that there is no relationship in place between them, noting ‘Mr Richmond has always been in the past very difficult for me to contact’ (paragraph 16).
In the grantee party’s reply (at pages 1, 2 and 6) the following assertions are made in response:
(a)Mr Richmond spent months in 2011 trying to make contact with elder Mr John Watson and that after making contact by telephone, Mr Watson indicated that Mr Richmond should not come without a lawyer;
(b)Mr Richmond spent four months in Broome in 2012 to form a relationship, which involved two meetings with Mr Watson/Jilkindi. Mr Richmond refers to emails he provided (see Attachment A below);
(c)Mr Richmond was always available by email unless he was in the bush;
(d)Mr Richmond often experiences technical difficulties using internet cafes and being in remote areas;
(e)When Mr Richmond is not in the bush he accesses internet up to three times per day; and
(f)An interstate letter can be received by Mr Richmond in three days.
In relation to the emails regarding (b) above, much of the correspondence involved KRED representatives. The content isn’t explained and only some of it relates to the proposed licence; nonetheless, it shows some communication efforts mostly in 2011 and 2012.
The Government party contends that Mr Watson’s statement at paragraph 11 of his affidavit falls short of providing an evidential basis for regarding the grantee party as inaccessible noting that Mr Watson merely said the Nyikina Mangala ‘sometimes found it difficult to make contact ... or to get a response from him in reasonable time’. The Government also points out that Mr Watson’s statement is hearsay. The Tribunal is not bound by the rules of evidence so I am not persuaded as to the irrelevance of Mr Watson’s deposition about communication with the grantee party on the basis of hearsay alone. In relation to the grantee party’s 8 September 2013 letter (see Annexure C to Mr Watson’s affidavit and paragraph 42 GVP Reply), the Government party also contends that there is no evidence to suggest that the grantee party will not act in accordance with what was conveyed in the work program (i.e. Mr Richmond’s statement that ‘care will be taken and consultations and heritage with traditional owners prior to a drilling program’).
I am of the view that this issue is relevant in so far as it affects the relationship between parties and the ability to communicate about intended activities and avoidance of important sites. The parties would benefit from improved communication and I have addressed heritage sites in the conditions below.

Section 39(2) – Existing non-native title interests

In my consideration of each sub-criteria in s 39(1)(a), I have had regard to the existing non-native title rights and interests and the existing use of the land or waters concerned by persons other than the native title party.

Section 39(4) – Issues relevant to the inquiry on which the negotiation parties agree

On the evidence before me, there are no relevant issues on which the parties agree.

Conditions

Where the evidence presents the need for it, the Tribunal is entitled under s 38(1)(c) of the Act to make a determination that conditions accompany a determination that the act may be done.
There are various parameters to the imposition of conditions. Section 38(2) of the Act prohibits the imposition of a condition which would entitle the native title party to payments worked out by reference to profits made, income derived or things produced by the grantee party as a result of doing anything in relation to the relevant land or waters after the tenement is granted. It is possible for a bank guarantee condition to be made within the meaning of ss 41(3)-(4). Also, s 41(5) prescribes some requirements for an amount to be paid and held in trust.
I adopt the following parts of the Tribunal’s explanation about conditions in FMG Pilbara v Yindjibarndi #1 at [175] to [179] as follows:
[175] Conditions will usually not be imposed unless the evidence adduced supports a need for such (see Magnesium Resources v Slater at [92]-[96], where the ‘Koara 2’ conditions were considered). The purpose of the power in s 38(1)(c) to impose conditions is to address the effect of a proposed act on native title rights and interests (see Western Australia v Thomas 2 at [106]).
[176] The Tribunal must make a determination, taking into account the criteria in s 39, which provides certainty to parties (see Evans v Western Australia per R D Nicholson J at 213-214; see also Minister for Lands v Strickland at [14]). As R D Nicholson J explained in Evans v Western Australia (at 214):
I regard it as inherent in s 38 the arbitral body not leave the outstanding issues between the parties unresolved. For conditions to permit of such issues being unresolved would not be in conformity with the legislation providing the power to make conditions.
[177] In that decision, the Federal Court regarded condition 3.1 to 3.7 of the original determination (Re Koara), which required further negotiation about proposed mining operations, to be an invalid exercise of power (see 214):
In my view this construction and understanding of s 38 follows from the need to have in mind the Act is to be construed consistently with its objects (s 3) and beneficially... It must be acknowledged the Act in its present form places the Tribunal in an impossible position. It is asked at the time of the determination of whether an act may be done to formulate conditions pertaining to a mining stage the nature of which is not yet known. It is not empowered to delegate to an arbitrator the resolution of conditions at a later time.
...
[178] As for the breadth of content for conditions, the Tribunal’s comments in Western Australia v Thomas 2 are informative. There, the view is that ‘s 38(1)(c) provides the Tribunal with a very wide discretion in relation to conditions’ (at [106]) and ‘at least as a general rule, conditions ought to relate to or be connected with the specific future act or acts the subject of the determination’, though the effect of the act in relation to the broader project can be relevant (at [108]-[109]). In the present matter, there is no doubt the grant of these two proposed leases forms part of the larger Solomon Project, which is a project in the magnitude of billions of dollars. Also, ‘just as conditions may incidentally relate to or benefit persons other than native title parties, so may conditions incidentally relate to matters going beyond the particular tenements and their potential effects on native title’ (at [109]).
[179] In terms of defining who conditions apply to, I adopt the Tribunal's view in Minister for Lands v Strickland as follows (at [17]):
...the power in s 38(1)(c) does not extend to imposing conditions requiring the Government party specifically to do things in relation to the public generally, Aboriginal people or registered native title claimants who are not native title parties.
In this matter, the parties have not requested any specific conditions. However, the evidence explained above has demonstrated the need for conditions relating to access, preserving cultural heritage which invokes the need for consultation, and the possibility of a joint venture or other arrangement.

Government party endorsement and conditions

As noted above, the terms of the Government party’s proposed endorsements and conditions shall be a condition of this determination.

Access condition

The native title party accesses the area of the proposed licences for various purposes as I have found at [125]-[130] above. I am of the view that it is appropriate to impose the following condition:
Any right of the native title party to access or use the land the subject of E04/2141 is not to be restricted except in relation to those parts of the land which are used for exploration purposes or for safety or security reasons relating to those activities.

Aboriginal heritage conditions

I have found there are sites of particular significance to the native title party (see [132]-[138], [152] and [157] above). Their location has not been described such that those areas can specifically be avoided. The grantee party has shown a willingness to receive GPS coordinates to give precise locations to be avoided. Whether the sites are such that GPS coordinates could assist in maximising avoidance is unknown. However, it is clear that the effect of grant on these sites can be minimised by the following conditions for the purpose of addressing the native title party’s concerns under s 39(1)(a)(v):
(a)The grantee party shall comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation;
(b)The processes set out in the Aboriginal Heritage Due Diligence Guidelines (version 3.0 dated 30 April 2013, published by the Department of Aboriginal Affairs and Department of Premier and Cabinet) must be adopted;
(c)The grantee party must not conduct exploration operations over any part of E04/2141 unless it has first caused an Aboriginal Heritage Survey to be conducted over the whole of the tenement. An Aboriginal Heritage Survey means a survey conducted by a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional with nominated Aboriginal consultants who provide first-hand knowledge and guidance about the Aboriginal heritage of the area. The survey must be conducted with six persons nominated by the native title party, and be conducted in a professional and efficient manner in accordance with the Aboriginal Heritage Due Diligence Guidelines. The grantee party must pay the reasonable fees and expenses of the nominees of the native title party in relation to the survey;
(d)The grantee party must give written notice to the native title party of its intention to conduct the survey. In the event that the native title party fails to nominate survey participants within 60 days of receipt of such notice, the grantee party need not conduct such survey unless required to do so to meet the requirements of the Aboriginal Heritage Act 1972 (WA);
(e)If the grantee party intends to give notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), it must first meet with the native title party in person and use all reasonable endeavours to reach agreement with the native title party in relation to the most appropriate way to avoid, or minimise disruption to, the sites of particular significance to the native title party (as established by the evidence in this matter). The grantee party must pay the reasonable fees and expenses of such a meeting;
(f)Information obtained during any of the processes above shall not be disclosed by the grantee party to any other person or entity for any purpose other than minimising disruption to sites unless (a) the native title party gives its written consent; (b) the person or entity is a prospective or actual assignee or the subject of a joint business arrangement (c) the person/entity is an employee, contractor or consultant; or (d) as required by law.

Joint venture and/or assignment

The grantee party’s material conveys an intention for a joint venture to take place at some point. The holder of a tenement is entitled to transfer it, subject to legislative and other requirements. However, the evidence has shown there are concerns which justify conditions and I would only decide that the future act may be done if one of the conditions has the effect of binding the tenement holder, whether that be the specific grantee party or another entity such as through a joint venture arrangement, to the conditions described above. Thus, the following conditions are appropriate:
The grantee party must not assign any interests in E04/2141 unless the assignee executes and delivers to the native title party a deed by which the assignee undertakes to be bound by all the conditions as if it were the grantee party.
The grantee party must not enter into a joint venture agreement, or any other arrangement involving another person or entity gaining beneficial or legal ownership (in full or part) in respect of E04/2141, unless the joint venture partner/person or entity executes and delivers to the native title party a deed by which the joint venture partner/person or entity undertakes to be similarly bound by all the conditions above.

Determination

The determination of the Tribunal is that the act, being the grant of exploration licence E04/2141 to William Robert Richmond may be done subject to the following conditions:

1. The grantee party is bound by the following:

ENDORSEMENTS
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.
In respect to Water Resource Management Area (WRMA) the following endorsements apply:
3.       The licensee 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
4.       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.
5.       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:
6.       The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.       Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·         50 metres from the out-most water dependent vegetation of any perennial waterway, and
·         30 metres from the out-most water dependent vegetation of any seasonal waterway.
CONDITIONS
1.       All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.       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.
3.       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 .
4.       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.
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 equipment 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.

7. No interference with Geodetic Survey Station Myroodah and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

2. Any right of the native title party to access or use the land the subject of E04/2141 is not to be restricted except in relation to those parts of the land which are used for exploration purposes or for safety or security reasons relating to those activities.

3. The grantee party shall comply with the Aboriginal Heritage Act 1972 (WA) and any other applicable Aboriginal heritage legislation;

4. The processes set out in the Aboriginal Heritage Due Diligence Guidelines (version 3.0 dated 30 April 2013 and published by the Department of Aboriginal Affairs and Department of Premier and Cabinet) must be adopted;

5. The grantee party must not conduct exploration operations over any part of E04/2141 unless it has first caused an Aboriginal Heritage Survey to be conducted over the whole of the tenement. An Aboriginal Heritage Survey means a survey conducted by a suitably qualified archaeologist, ethnographer, anthropologist or other heritage professional with nominated Aboriginal consultants who provide first-hand knowledge and guidance about the Aboriginal heritage of the area. The survey must be conducted with six persons nominated by the native title party, and be conducted in a professional and efficient manner in accordance with the Aboriginal Heritage Due Diligence Guidelines in condition 4 above. The grantee party must pay the reasonable fees and expenses of the nominees of the native title party in relation to the survey;

6. The grantee party must give written notice to the native title party of its intention to conduct the survey. In the event that the native title party fails to nominate survey participants within 60 days of receipt of such notice, the grantee party need not conduct such survey unless required to do so to meet the requirements of the Aboriginal Heritage Act 1972 (WA);

7. If the grantee party intends to give notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA), it must first meet with the native title party in person and use all reasonable endeavours to reach agreement with the native title party in relation to the most appropriate way to avoid, or minimise disruption to, the sites of particular significance to the native title party (as established by the evidence in this matter). The grantee party must pay the reasonable fees and expenses of such a meeting;

8. Information obtained during any of the processes above shall not be disclosed by the grantee party to any other person or entity for any purpose other than minimising disruption to sites unless: (a) the native title party gives its written consent; (b) the person or entity is a prospective or actual assignee or the subject of a joint business arrangement (c) the person/entity is an employee, contractor or consultant; or (d) as required by law;

9. The grantee party must not assign any interests in E04/2141 unless the assignee executes and delivers to the native title party a deed by which the assignee undertakes to be bound by all the conditions as if it were the grantee party; and

10. The grantee party must not enter into a joint venture agreement, or any other arrangement involving another person or entity gaining beneficial or legal ownership (in full or part) in respect of E04/2141, unless the joint venture partner/person or entity executes and delivers to the native title party a deed by which the joint venture partner/person or entity undertakes to be similarly bound by all the conditions above.

Mr J R McNamara

Member

21 May 2015

ATTACHMENT A

Documents accompanying grantee party reply

(a)   A surrender form (Mining Act 1978 s 95 reg 43) dated 5 October 2011 for exploration licence 51/1280 held by the grantee party
(b)   A surrender form (Mining Act 1978 s 95 reg 43) dated 5 October 2011 for exploration licence 51/1281 held by the grantee party
(c)   A document entitled ‘Plaints 1995/1996’ with handwritten annotations including ‘Roberts Plaintiff. Events prior to hearing’
(d)   Pages 13-22 of Tribunal determination Areva Resources Australia Pty Ltd and Another v Walalakoo Aboriginal Corporation [2014] NNTTA 70
(e)   An information page on Mt Marion Lithium Project published by Reed Resources Ltd
(f)   A diagram showing Fitzroy Trough with Myroodah Syncline and Fitzroy River circled and the proposed licence drawn on to it
(g)   A diagram entitled ‘Simplified Geology Cainozoic sediments omitted’ with the proposed licence drawn on to it
(h)   Emails with subject line ‘RE: Uranium exploration’ between Melissa [surname unknown], Hunt and Humphry, and Mr Richmond dated 6 May 2010
(i)    An email from Mr Jeremy Goff, Kimberley Land Council (‘KLC’), to Mr Richmond dated 9 September 2011 and Mr Richmond’s response email dated 10 September 2011
(j)    An email dated 16 September 2011 with subject line ‘2012 work program schedule request’ from Ms Merrilee Powers, KLC, to other KLC staff members and Melissa of Hunt and Humphry, as forwarded to Mr Richmond on 26 September 2011
(k)   A copy of an electronic calendar entry for meeting between Mr Richmond and Mr Wayne Bergmann for 29 October 2012
(l)    An email dated 31 October 2012 from Mr Richmond to representatives from the Tribunal, DMP and KLC regarding exploration licence E04/2028
(m)    An email chain from 15-16 August 2012 between Mr Richmond and staff from KRED Enterprises Pty Ltd regarding a possible meeting to discuss mineral projects
(n)   An email dated 17 August 2012 from Mr Richmond to staff at Kred Enterprises Pty Ltd attaching a letter from Mr Richmond to Anthony [surname unknown] regarding the Frome Rocks Project
(o)   An email exchange on 19-20 August 2012 with subject line ‘NNTT conference on 22 August’ between Mr Richmond and Ms Ania Maszkowski of KLC
(p)   An email exchange on 6 December 2012 with subject line ‘Granite project’ between Mr Richmond and Mr Leuwin O’Connell of KRED Enterprises Pty Ltd
(q)    A newspaper article entitled ‘Aboriginal council keen to explore uranium’ (date and publication unknown)
(r)    A newspaper article entitled ‘Lovelock praises nuclear’ by Graham Lloyd (date and publication unknown)
(s)   An article by Mr Daniel Zavattiero, Executive Director of Uranium for Minerals Council of Australia, dated April 2014 and entitled ‘2014 is set to be a big year for Australia’s uranium industry’ (publication not specified)
(t)    A newspaper article entitled ‘Our prosperity depends on finding fresh resources’ (date and publication unknown)
(u)   A newspaper article entitled ‘The power of sun, wind and drain’ with a handwritten annotation ‘A.F.R Wed July 30 2014’;
(v)   An article entitled ‘the nuclear butterfly effect’ (date and publication unknown)
(w)    Newspaper article entitled ‘Academic slams tyranny of Greens’ by Trevor Sykes with annotation ‘Australian Financial Review 4 June 14’
(x)   Newspaper article entitled ‘Aboriginal ‘industry’ muddies the waters’ by Anthony Dillon (date and publication not visible)
(y)   Newspaper article entitled ‘Martin speech blasts ‘bloody Greenies’ by Daniel Emerson, as published in the Advertiser News in November 2012
(z)   Newspaper article entitled ‘Let’s go nuclear, for the reef’s sake’ by Ove Hoegh-Guldberg and Eric McFarland (date and publication not visible)
(aa)   Newspaper article entitled ‘Economic vandals must be jailed’ by Stephen Galilee, as published in The Australian (annotated date of 4 April 2014)
(bb) Newspaper article entitled ‘The native title div...’ published in the The West Australian (annotated date of 27 March 2010)
(cc)   Newspaper article entitled ‘Radiation tolerant ‘cleaning’ alga discovered’ (date and publication not visible)
(dd) Article entitled ‘Depleted uranium as fuel cuts path to less waste’ (Online source not specified)
(ee)   Article entitled ‘Intelligent absorbent removes radioactive material from water’ by Darren Quick, as published on and dated 1 November 2011;
(ff)    Article entitled ‘Drone squirts foam to clean up nuclear waste’ (source and date not specified)
(gg) Newspaper article entitled ‘Genome proves Aboriginal descent from first humans out of Africa’ with handwritten annotation ‘Australian, Sept 23, 2011’
(hh) Newspaper article entitled ‘Early Australia’s India connection: A new take on first peoples’ from The Economist, with handwritten annotation ‘Jan 25-28, 2013’
(ii)   Newspaper article entitled ‘Old time prospector lives for that last big find’ by Nic Sas (source not specified)

Note: In addition to documents 1-35 above, a Curtin University Proxy Form and a copy of a passport were provided. These were provided due to technological error and do not form part of the decision-making process.