Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd - [2011] NNTTA 170

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170 (25 August 2011)

Application No: WO09/438, WO09/933, WO09/934, WO09/935, WO09/936, WO09/937,
WO10/275, WO10/276

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants – (WC99/24) (native title party)

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The State of Western Australia (Government party)

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Kingx Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Helen Shurven, Member
Place:   Perth
Date:   25 August 2011

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Cases: Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69
Jango and Others v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken [2010] NNTTA 60
Neowarra v Western Australia [2003] FCA 1402
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rubibi Community v Western Australia [2005] FCA 1025
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representatives of the
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Ms Monica Franz, Central Desert Native Title Services

Representatives of the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the
grantee party: Mr Greg Abbott, M & M Walter Consulting Tenement & Native Title Management

REASONS FOR DETERMINATION

Between 11 March and 4 November 2009, the Government party issued a series of notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E69/2573, E53/1433 - E53/1437 and E38/2211 - E38/2212 (‘the proposed licences’) to Kingx Pty Ltd (‘the grantee party’) and included in each notice a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
On various dates after the notices were given, Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (‘the native title party’) lodged expedited procedure objection applications (‘the objections’) with the Tribunal. The objections, together with the lodgement dates, associated tenement numbers, and s 29 notification dates, are listed in Table 1.

Table 1

Objection	Tenement	Section 29 Notification Date	Date Objection Lodged
WO09/438	E69/2573	11 March 2009	2 July 2009
WO09/933	E53/1433	12 August 2009	3 December 2009
WO09/934	E53/1434	12 August 2009	3 December 2009
WO09/935	E53/1435	12 August 2009	3 December 2009
WO09/936	E53/1436	12 August 2009	3 December 2009
WO09/937	E53/1437	12 August 2009	3 December 2009
WO10/275	E38/2211	4 November 2009	26 February 2010
WO10/276	E38/2212	4 November 2009	26 February 2010

Details of the proposed licences are as follows:

Proposed licence E69/2573 comprises an area of 625.54 square kilometres located 120 kilometres north-east of Wiluna in the Shire of Wiluna;
Proposed licence E53/1433 comprises an area of 212.41 square kilometres located 116 kilometres north-east of Wiluna in the Shire of Wiluna;
Proposed licence E53/1434 comprises an area of 215.48 square kilometres located 124 kilometres north-east of Wiluna in the Shire of Wiluna;
Proposed licence E53/1435 comprises an area of 215.38 square kilometres located 136 kilometres north-east of Wiluna in the Shire of Wiluna;
Proposed licence E53/1436 comprises an area of 215.22 square kilometres located 152 kilometres east of Wiluna in the Shire of Wiluna;
Proposed licence E53/1437 comprises an area of 214.84 square kilometres located 147 kilometres east of Wiluna in the Shire of Wiluna;
Proposed licence E38/2211 comprises an area of 214.66 square kilometres located 163 kilometres east of Wiluna in the Shire of Wiluna;
Proposed licence E38/2212 comprises an area of 214.84 square kilometres located 169 kilometres east of Wiluna in the Shire of Wiluna;

The proposed licences are all situated entirely within the Wiluna native title claim. No other native title claim overlaps the proposed licence areas.

In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 notification date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent. Following a number of requests to vary the compliance dates, final directions made by the Hon C J Sumner, Deputy President, on 2 May 2011 (WO09/937) and 6 May 2011 (WO09/438, WO09/933 - WO09/936, WO10/275 - WO10/276) included that the Tribunal be provided with documents and contentions of:

the Government party on or before 9 May 2011;
the native title party on or before 16 May 2011; and
the grantee party on or before 23 May 2011.

The Government party lodged its evidence and statement of contentions on 28 February 2011 (WO09/438, WO09/933 - WO09/936, WO10/275 - WO10/276) and 5 May 2011 (WO09/937), with supporting documentation lodged by the Department of Mines and Petroleum on 18 November 2010 (WO09/438, WO09/933 - WO09/936, WO10/275 - WO10/276) and 18 April 2011 (WO09/937).
The native title party lodged its evidence and statement of contentions in respect of WO09/438, WO09/933 - WO09/936 and WO10/275 - WO10/276 on 18 April 2011, including the sworn affidavit of Mr Lindsey George Langford and a document purporting to be the affidavit of Mr Robert Wongawol, followed on 21 April by the sworn affidavit of Mr Frankie Wongawol dated 19 April 2011. The native title party lodged its evidence and statement of contentions in respect of WO09/937 on 11 May 2011.
The grantee party has not lodged any contentions or evidence in respect of the objections.
A listing hearing occurred on 9 June 2011 and following some communications between the Tribunal and all parties, by 22 July 2011 there was agreement that the matter could be determined ‘on the papers’ (that is without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act).
On 22 July 2011, I was appointed by the Hon C J Sumner, Deputy President, as the Member for the purpose of conducting the inquiry. On 26 July 2011, I made non-disclosure directions for each of the proposed licences under s 155 of the Act, in relation to ‘LGL1’ attached to the affidavit of Mr Langford. Directions were in terms that LGL1 remain confidential to members of the grantee party, Government party, Tribunal members and staff.

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

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

In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Hon C J Sumner, Deputy President, considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in Relation to the Proposed Acts

The Government party has provided the following documents: a statement of contentions; tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Department of Indigenous Affairs (‘DIA’) Register; copies of the tenement applications; copies of the proposed endorsements and conditions of grant; and tengraph quick appraisals.
Government party documentation establishes the underlying land tenure of the proposed licences and any relevant services affected to be as follows:

E69/2573

A Historical Lease (395/424) at 19.1 per cent;
Two Pastoral Leases (Millrose - 3114/960 and Granite Peak - 3114/654) at 11.0 per cent and 57.0 per cent respectively;
One parcel of Vacant Crown Land/CPL9 (Lorna Glen) at 31.9 per cent;
One Road Reserve at less than 0.1 per cent; and
SSM-GN7T and SSM-GN7 (Geodetic Survey Stations).

E53/1433

A Pastoral Lease (Granite Peak - 3114/654) at 12.5 per cent;
One parcel of Vacant Crown Land/CPL9 (Lorna Glen) at 87.5 per cent; and
One Road Reserve at less than 0.1 per cent.

E53/1434

One parcel of Vacant Crown Land/CPL9 (Lorna Glen) at 99.9 per cent; and
One Road Reserve at less than 0.1 per cent.

E53/1435

One parcel of Vacant Crown Land/CPL9 (Lorna Glen) at 100 per cent;
Two Road Reserves, both at less than 0.1 per cent; and
Two Airfield Runways.

E53/1436

Two Historical Leases (395/407 and 395/430) at 3.8 per cent and 3.0 per cent respectively;
Two Pastoral Leases (Yelma - 3114/1067 and Wongawol - 3114/1068) at 3.0 per cent and 66.7 per cent respectively; and
One parcel of Vacant Crown Land/CPL9 (Lorna Glen) at 30.4 per cent.

E53/1437

A Historical Lease (395/430) at 40.1 per cent;
A Pastoral Lease (Yelma - 3114/1067) at 98.8 per cent;
One Watering Place for Travellers and Stock (CR19281) at 0.4 per cent; and
Two Road Reserves, both at less than 0.1 per cent.

E38/2211

An Indigenous Owned Lease (Windidda - 3114/1065) at 33.7 per cent;
A Pastoral Lease (Yelma - 3114/1067) at 66.3 per cent; and
One Road Reserve at less than 0.1 per cent.

E38/2212

An Indigenous Owned Lease (Windidda - 3114/1065) at 57.6 per cent;
Two Pastoral Leases (Yelma - 3114/1067 and Wongawol - 3114/1068) at 40.3 per cent and 2.1 per cent respectively; and
One Road Reserve at less than 0.1 per cent.

The documentation also indicates in respect of proposed licence:

E69/2573 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent, one cancelled temporary reserve held between 1977 and 1978 overlapping 0.8 per cent and ten exploration licences granted between 1993 and 1997 overlapping between less than 0.1 per cent and 19.4 per cent, all of which were either surrendered or forfeited between 1996 and 2000;
E53/1433 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and eight exploration licences granted between 1993 and 1997 overlapping between less than 0.1 per cent and 33.5 per cent, all of which were either surrendered or forfeited between 1996 and 2000;
E53/1434 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and six exploration licences granted between 1993 and 1995 overlapping between 0.2 per cent and 40.8 per cent, all of which were surrendered in 1996;
E53/1435 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and four exploration licences granted between 1993 and 2001 overlapping between 3.3 per cent and 8.0 per cent, all of which were surrendered between 1996 and 2004;
E53/1436 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and five exploration licences granted between 1992 and 2001 overlapping between 3.1 per cent and 33.1 per cent, all of which were surrendered between 1995 and 2004;
E53/1437 – one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and one surrendered exploration licence held between 1994 and 1995 overlapping 16.5 per cent;
E38/2211 - one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent and three surrendered exploration licences held between 1995 and 1996 overlapping 2.6 per cent, 20.5 per cent and 40.1 per cent; and
E38/2212 - one cancelled temporary reserve held between 1959 and 1964 overlapping 100 per cent, two surrendered exploration licences held between 1995 and 1996 overlapping by 7.9 per cent and 70.1 per cent, and one forfeited exploration licence held between 1996 and 2000 overlapping 1.3 per cent.

A Tribunal geospatial map prepared on 16 June 2011 does not indicate any Aboriginal communities within the proposed licences; however, there is an Aboriginal community (Windidda) approximately 20 kilometres from the eastern boundary of E38/2212.
DIA documentation provided by the Government party reveals one registered site within E38/2211: Nyunma (Mythological, Quarry, Ochre - Site ID 2716). The Tribunal’s geospatial mapping also indicates 27 sites within approximately 50 kilometres of the boundaries of the proposed licence area (Site ID 425, 426, 478, 479, 749, 1126, 1127, 1128, 1129, 1502, 2090, 2122, 2714, 2715, 2765, 2849, 2850, 2851, 2852, 2853, 2854, 2858, 19302, 25671, 25674, 25677, 25680).
A draft tenement endorsement and conditions extract for each proposed licence included in the Government party’s documentation indicates the grant of the proposed licences intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Further conditions are imposed on the proposed licences as follows:

E69/2573, E53/1433, E53/1436, E53/1437, E38/2211, E38/2212

The licensee to notify the holder of any underlying pastoral or grazing lease prior to undertaking airborne geophysical surveys or any ground disturbing activities;
The licensee or transferee to advise the holder of any underlying pastoral or grazing lease details of the grant or transfer.

E69/2573, E53/1433, E53/1434, E53/1435, E53/1436

In respect to the area designated as CPL 9 in tengraph:
(a)Prior to any ground-disturbing activity, the licensee to prepare a detailed program for each phase of the proposed exploration for approval by the Director, Environment, Department of Industry and Resources (‘DoIR’);
(b)The licensee to rehabilitate all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DoIR;
(c)Prior to the cessation of exploration/prospecting activity, the licensee to notify the Environmental Office, DoIR, and arrange an inspection as required.

E69/2573

No interference with Geodetic Survey Station GN7T or GN7 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

E53/1435

No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

E53/1437

The licensee to obtain the prior written consent of the Minister responsible for the Mining Act 1978 before commencing any exploration activity on Watering Place for Travellers and Stock Reserve 19281.

The draft tenement endorsement and conditions extract for each of the proposed licences also makes the following endorsements (which differ from conditions in not making the licences liable to forfeiture of the proposed licence for their breach):

‘1The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2The 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.’

A third endorsement applies to E38/2211 and E38/2212:

‘3The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.’

The Government party’s contentions (at para 6(e)) indicate that a further condition will be placed on the grant of the proposed licences requiring the licensee at the request of the native title party to execute in favour of the native title party the Central Desert Regional Standard Heritage Agreement (‘RSHA’).

Evidence provided by the native title party

The evidence provided by the native title party in relation to the proposed licences includes:
(a)a document titled the Affidavit of Mr Robert Wongawol, which is not in the form of an affidavit but which has been signed by Mr Wongawol on 13 April 2011;
(b)the Affidavit of Mr Frankie Wongawol, sworn on 19 April 2011;
(c)the Affidavit of Mr Lindsey George Langford, Anthropologist, sworn on 15 April 2011; and
(d)a map of sites and Jukurrpa (or dreaming tracks) in and traversing the area covered by the proposed licences based on research conducted on behalf of the native title party (‘LGL1’).
Mr Robert Wongawol’s statement is made in the following terms:
‘I, Robert Wongawol, of 16 Cyprus St, Rangeway in the State of Western Australia, hereby swear and say an oath as follows:
Background
1.I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998).
2.I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the objection to the expedited procedure matters.
3.The information in this affidavit are things that I know to be true.
4.I have been shown a map of the tenements for this matter by a staff member of Central Desert Native Title Services.
My authority to speak for country
5.The area of the tenements is my ancestors’ country. My Uncle Miparrl (Frankie Wongawol) and my Father told me about that country all through there. My last name Wongawol, being Wongawol station and where our last name came from, its all around that area there. That’s where my Grandfathers and their Fathers and my Uncles and Aunties been walking through there and living off bush tucker, and following the story, and doing their practices.
6.This area is my ngurra. Ngurra means home, and it is the right word to use for here, coming through from my father’s side.
7.I been told about the area as I was growing up. When I got to a certain stage, went through the law, and that’s where I got taught about all my connection to the land, to my jukurr. When I’m looking at the map, these tenements, it’s all over where I been, from my Dad, and he was told by his Dad to look after it.
8.For up here I’ve got authorities because my uncle gave me the responsibility for this area, Mangkutu. He tell us mob when we went out. He is also the bloke to talk to about all that there.
9.The senior people need to be consulted because they know more then me around here. This is because that area has a lot of significance, they got more things to say then me, they give the okay to things, they say yes or no.
Looking after and visiting country
10.I work as a Ranger for the Martu people, employed by Central Desert. I mostly work around the area covered by the tenements. Around Matuwa and Blue Hills, through that way.
11.That is part of our job as rangers, looking after country, so we go out there and look after rockholes, sacred sites, and we do burning. We stop people from going into our sacred sites, just looking after country making sure everything is alright.
12.For us to go out to where we have to do our work in our country, that area covered by the tenements is a base. We use the area as a base to go to places like the Carnarvon Ranges. We do a lot of our work on that place there, those tenements.
13.When we are working in the area, we mainly stay at the Martu-ku Ngurra. Martu-ku Ngurra is a camp we set up, it’s around the boundary of E53/1436 and E53/1435. I can’t tell where exactly off a map, but it’s north of the Lorna Glen homestead. About twice a month we go out to Martu-ku Ngurra. It is a very good spot for hunting cause we got dreaming there, for them animals. We got to look after the dreaming, and they give us feed of the animals. It’s a good place for a lot of bush tuckers and hunting.
14.We take something out of the land, bush tucker and animals, and we got to give back, by looking after those places.
15.We take kids out bush to that area and learn them things, I’m still learning from my Uncles. We take ladies and kids out. Ladies they got things on that area too, dreamings and all along there. In Matuwa, there is a place there for the ladies, just along the airstrip or on the end of the airstrip. I can’t talk about that place.
Our law
16.It’s not just the Wiluna mob that knows the jukurrpa, the biggest mob all around right out from South Australia, Northern Territory, the Kimberley, down South. They are thinking about those lines there, that go through that area, the dreamings, they sing about those lines. Not just the Wiluna mob, biggest mob know about these things here, the dreamings.
17.For us to let mining companies go out there and do things, that there is breaking our law. If we are just letting people go out there and do what they want, other mobs then start thinking that the Wiluna mob are not worrying about their jukurrpa or anything like that there, they’re giving it away. We will get criticized, they’ll say why did you go out and do that for, that area and those stories, they belong to us too.
18.If anybody go out there and dig things up, maybe a site, that’s when well... it will make us powerless. This goes for all sites and places where the dreaming been. Everybody know about it and people use it in their practice, it has been like that for years and they’ll just make us powerless.
19.It’s like one thing that happened out at Mungilli, bit further north and they still talk about it. There is a mine there, the company went and dug it up and people still talk about it. They dug it up and people say that that has made them weak. They shouldn’t have done that. You got to ask permission.
20.It is not so bad if it is in the open, maybe where the dreaming went through but didn’t make a mark. But when there are lots of sites there is a problem. Where the dreaming left a creation, you can see it and it stands out. And if that dreaming left something like a claypan, the actual mark where he left the claypan, nothing should happen there. He left a creation, that is where he’s been. It is a very important place.
21.Where the dreaming left special places that is more important then where he is heading or where he didn’t go at all.
The area of the tenements
22.A lot of dreamings been going through here. A lot of sacred things go through there. It’s a really important area.
23.We did direct evidence for our native title and we took the State up there to show them the country. We spent one of the days around Mangkutu and Matuwa. We told the bloke from the State that this is our native title things here and showed him all that there.
24.We took him there because this area is very significant to us, there are lots of stories in this area and lots of sites. We had to show so he can understand about the country and how it’s all connected and how we are connected to them, the country.
25.The Central Desert staff show me a map with dreaming on it and sites that Lee Sackett did for our native title. I’m looking at that map and there are places that are not indicated on here, that I can’t see. Places were those dreamings can be seen. That is why I say you got to talk to my Uncle and he is the rightful owner. He has been working and travelling through there with my father, looking for food, hunting, going to rockholes.
Matuwa
26.There is a place there, Matuwa, man’s business, when we go there and visit, do our things up there and then we right to go hunting then. When we go and visit that place, then it is alright for us to go out hunting. Back in the days it was very strong and we still do it today. It’s just like a connection.
27.Matuwa is on or just near E53/1436, I can’t tell without going out there.
Mangkutu
28.That is sacred sites, Mangkutu, skull creek and others that can’t be mentioned.
29.Only certain people can name it but certain people talk amongst themselves about that there because it is men’s business. Martu men go there to visit it to keep it going, make sure it doesn’t die out. We keep going there, almost every time we go out there to do our work on country, we go there to visit it and clean it a bit. It is a very important men’s place. We’re always going out there, to look after it.
30.The man who has responsibility for that area got traditional punishment because a third party took something from that area. He wasn’t there at the time when the third party took that thing, it wasn’t his fault. Martu found out something was missing, he didn’t know about it, and then when he found out he went up there and got his traditional punishment, his tribal punishment. He was told to go and get that thing and take it back up there. He got that punishment cause that is his country to look after.
31.If something happened to that area I would be worried about getting punished too.
Matuwa soak
32.Matuwa is a soak that is definitely a no. The company shouldn’t go there.
33.Matuwa is on or near E53/1435, I can’t tell without going out there.
Seven Sisters rock holes
34.The Seven Sisters rock holes are jukurr, they go all through that tenement E53/1436 and E53/1435. I can’t tell you exactly where without being on the ground but it’s not on that map with the Lee Sackett sites.
Mangaltjara
35.There is a claypan there and old people used to come, they used to go to the claypan, in that Lorna Glen area. Mangaltjara is a little bush, the old people used to go there all the time. With the dishes the old ladies used to collect all their seeds and make their damper. And you can see the gaps where they come through on the side of the breakaway.
36.We visit it all the time, go there and see if it has water, don’t need to do any maintenance to it, it just grows natural. But the little bush, Mangaltjara bush the one they use for food, for damper, is only found in that area that I know of. We still go out to see it.
37.That Mangaltjara is on that tenement E53/1435 and the bush grows there and all around there.
Claypan on E69/2573
38.There’s a big claypan on that area in E69/2573, Marlu camped there and that is a big claypan there. The old people can tell you more if you want to know more.
Hills on E69/2573
39.Big Spinifex country out there, where the Granite Peak pastoral lease finishes, on that tenement, that is them two hills way back that way. Uncle Miparrl was telling me about that. That is where he been go through the law, you can see the hills from that claypan.
40.Those hills are where the marlu and the goanna men dreamings go through.’

While this evidence is not in the form of a formal affidavit, I am not bound by the rules of evidence, the evidence has not been challenged and the document is signed by Mr Wongawol and witnessed by a legal practitioner. As such, I accept the evidence as a signed statement and as part of the materials to be considered in making this determination.

Mr Frankie Wongawol’s Affidavit is made in the following terms:
‘I, Frankie Wongawol, of Lennon St, Wiluna in the State of Western Australia, hereby swear and say on oath as follows:
1.I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998).
2.I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the objection to the expedited procedure matters.
3.The information in this affidavit are things that I know to be true.
4.I have been shown a map of the tenements for this matter by a staff member of Central Desert Native Title Services.
5.I am an elder.
6.I’ve gone through all the law, from Strelley, up to Well 33 and back to Fregon in South Australia. Me and others have been through all of those law things, including with the other mob at Tjuntjunjarra. We’ve been doing law at Cosmo, and that mob also come over here and do law at Bondini.
7.There is same law for everybody in Martu mob. When we was at Cosmo, old people been singing songs all the way through Wiluna to the other side, kakarra (east).
8.I the boss for that area on the map. I been all around that area, been taken around by Norman Thompson, he the other boss in that area. I was sat down and the old people said you’re the one. I am the boss family way and law business way.
9.That’s how I can speak for that place.
10.There is nowhere I can’t go in that country, I’ve been through law all the way and I been all around that country.
11.There is jukurr all along that country. I know where that jukurr is. People gotta talk to me about the jukurr because I know it.
12.The old people hold it. It belongs to us, we gotta look after it.
13.Once because I didn’t look after country properly, I got speared, even though the site that I didn’t look after, I didn’t know people were taking things and going there when they shouldn’t. I got speared anyway.
14.When we go out to that country, we sit around and go and have a look around. We cry for those places, for the old people that took us out, it brings back memories.
15.We go out to those areas a lot for hunting and looking after that country. I don’t want to talk about those animals out there for hunting, that is private way, only for men.
16.There is a place women go, for damper. Men can go there too. There is water there. There are three rockholes there, looks like that place is on E53/1436.
17.I can go everywhere in that country but women can’t go everywhere in that country.
18.We camp out there, all around. It’s good country. I used to live in that area. When I was a young fella.
19.There are lots of special places in that area. There are songs there, see the jukurrpa. So much jukurrpa in that area, places where they stopped and places where they just travelled over.
20.People have to stay away from the places where the jukurrpa sat down. They got to stay way back. Those places are sacred. You can’t do nothing on those areas. You have to be careful around those areas there is lots of jukurrpa, lots of places where those jukurrpa sat down.
21.There are lots of places out there I can’t talk about, they are men’s places, I don’t want to talk about them here.’
Mr Robert Wongawol and Mr Frankie Wongawol state that they are traditional owners in the Wiluna native title claim area.Mr Frankie Wongawol further states (at 8) that he is ‘the boss’ of the area covered by the proposed licences, and Mr Robert Wongawol states (at 8) that he has authority to speak for the area from Mr Frankie Wongawol. I accept they are members of the native title party claim group and have the necessary authority to speak for the area on behalf of the native title party.
Mr Lindsey George Langford’s affidavit is made in the following terms:
‘I, Lindsey George Langford, of 170 Wellington St, East Perth in the [sic] Western Australia, anthropologist, hereby sincerely declare and affirm:
1.I hold a Bachelor of Arts (Anthropology) and I have been employed at Central Desert Native Title Services (Central Desert) since 3 July 2008 working primarily in the area covered by the Wiluna native title claim.
2.Prior to my employment with Central Desert I worked as an anthropologist with the South West Land and Sea Council where I was responsible for research into native title claimant’s connection to land bordering desert country in the far east of the Single Noongar Claim.
3.My role prior to this was as a heritage anthropologist working for Ngaanyatjarra council. I conducted fieldwork in the Ngaanyatjarra native title determined area with the relevant native title holders in this remote part of the western desert.
4.I swear this affidavit in support of an objection to the application of the expedited procedure lodged in the National Native Title Tribunal by the Native Title Party in the matters WO09/438, WO09/933, WO09/934, WO09/935, WO09/936, WO10/275 and WO10/276 [I note that Mr Langford also refers to areas of WO09/937 in this affidavit at paras 31-32].
5.Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.
6.The area covered by the tenement applications E69/2573, E53/1433, E53/1434, E53/1435, E53/1436, E38/2211 and E38/2212 (the Tenements) falls within an area of the Wiluna native title claim. The members of this claim self-identify as Martu people. Many, but not all, of those people who claim rights to the area of the tenement [sic] are resident in Wiluna.
7.My current role at Central Desert is West Side – Facilitator Land and Community at Central Desert [sic]. My previous role at Central Desert was Anthropologist/Project Officer for the Wiluna native title claim.
8.Since coming to Central Desert, I have spent the majority of my time working on land-based projects. These projects have been coordinated in collaboration with, and informed by, the instructions of the Wiluna native title claim group. As part of my work, I regularly attend claim meetings, law and culture meetings and undertake trips ‘on country’ in the claim area.
9.In my role with Central Desert, I have attended a number of Wiluna native title claim meetings. I have access to the native title research material on the Wiluna native title claim prepared by Dr Lee Sackett as a result of research conducted from 1999 to 2009.
10.Central Desert has not conducted any heritage surveys over the area of the Tenements. The research conducted for the native title claim was done on a limited budget and for an area much broader than that contained in and immediately around the Tenements. For this reason, it is my opinion that, given the wealth of information about sites of importance recorded over the entirety of the claim area, it is highly likely that there are sites known to the Wiluna native title claimants that are not yet recorded.
11.In September 2009 I attended on country evidence for the Wiluna native title claim attended by the Wiluna native title claimants, Central Desert staff, Dr Lee Sackett and representatives for the State of Western Australia for the purpose of provided on country connection materials to the State of Western Australia. Of the three days of evidence, one day and an overnight camp was held on the well known Martu camping area near the old Lorna Glen homestead, within the area of the Tenements. That area was chosen due to:
(a)     the significant cultural and historical association which Martu people have had with the specific area;
(b)    the significance of the area to the Martu for its proximity to extensive networks of Jukurrpa;
(c)     it being an area the Martu frequently visit and camp on; and
(d)    its central location as a base from which Martu people stage their travels back to country to maintain their cultural and spiritual connections to their land.
Jukurrpa
12.‘Jukurrpa’, despite the sweep of its broad conceptual social, spiritual and geographical framework is often reduced to the term ‘the dreaming’ or the ‘law’. In the case of the former simple reduction it is best described as the creation/creating force to which all ‘things’ are attributable. In the case of the latter, that overarching spiritual and social governing structure to which everything in the Martu world is accountable.
13.Martu people speak of Jukurrpa as the creation and the continuity of the entire Martu world. According to Martu, powerful spiritual beings (‘Jukurrpa beings’) both created and are still creating the land and its natural features, the people, the animals and plants and the system of law which Martu follow today.
14.Jukurrpa is not simply creation but continuity. Martu people believe that Jukurrpa beings are forever resident ‘within’ the Martu landscape and such is their agency in administrating and ordering the natural, spiritual and social world, that adherence to the law laid down by the Jukurrpa beings in [sic] unquestioned.
15.Jukurrpa is also a term which is used to describe especially significant physical sites which have been created by Jukurrpa beings. At these sites ‘the Law’ dictates ceremonial observance or the connection with Jukurrpa in a much deeper and more structured way.
16.The adherence to Jukurrpa demands the fulfilling of spiritual and social obligations in relation to maintenance of what are often termed ‘sacred sites’. These obligations extend well beyond the local land holding group through networks of kin and cultural connections across the western desert. It is the ultimate responsibility of all western desert peoples who observe the Law (often spoken of as ‘one law’) to look after and protect Jukurrpa.
17.The failure to fulfil one’s obligations in respect of Jukurrpa can have severe consequences for the individual or group of people who have transgressed.
The site rich nature of the area of the Tenements
18.On the basis of the native title research material and my own work with Wiluna native title claimants in the area of the Tenements, it is my opinion that geographical features in the Tenements are locations and areas that are physical manifestations of the ongoing presence of Jukurrpa. They remain alive with the physical presence of dreaming beings that Martu people believe exist in the present and impact on their lives and the environment.
19.The Tenements are traversed by extensive Jukurrpa including:
(a)     Marlu (Kangaroo Dreaming);
(b)    Warlawurru (Eaglehawk Dreaming);
(c)     Kirnara (Moon Dreaming);
(d)    Wati Kutjara (Two Goanna Men Dreaming);
(e)     Tjakalukulu (Seven Sisters Dreaming);
(f)   Papa (Dingo Dreaming);
(g)    Karlaya (Emu Dreaming); and
(h)    Papanymaru (Goanna Woman Dreaming).
Attached and marked “LGL 1” is a map that shows where the Jukurrpa traverse the tenements.
20.The native title research material identifies 9 sites recorded by Central Desert within the Tenements and a further 36 sites recorded by Central Desert located within 20km of the Tenements. I discuss the 9 sites in respect to each tenement below. Due to the large number of sites within 20km of the Tenements, I do not go into these sites in detail. It is my belief that the volume of sites in the vicinity of the Tenements indicates that the Tenements fall within a site rich area.
21.Further, given the nature of dreaming tracks, it is likely that the Jukurrpa left additional sites and places of importance on the country in the Tenements which have not yet been recorded.
22.In addition to the extensive Jukurrpa and sites on the Tenements and in immediate proximity to the Tenements, the area is also frequently used by Martu to camp at, hunt and look after country. In my current role at Central Desert, I have taken part in and assisted Martu with building a permanent camp, called Martu-ku Ngurra, just north of the old Lorna Glen homestead, located within the Tenements. Martu-ku Ngurra, meaning ‘Martu’s home’, was built at this spot because:
(a)     it is an area where Martu frequently go to hunt, teach children about the area and look after country;
(b)    it is a base for access to areas of cultural significance to the Martu, including those areas around Lake Carnegie;
(c)     it is one of the few places in the area that is not covered by a pastoral lease and is therefore available for the Martu people to fully exercise their native title rights and interests; and
(d)    it had been seen as important physical demonstration of Martu people’s continuing occupation and involvement in the area.
Sites of particular significance within the Tenements
23.I am informed by the native title research held by Central Desert on behalf of the Wiluna native title claimants for the information provided below. A number of the Jukurrpa and sites referred to below have aspects of their stories that are gender specific and those aspects have not been reproduced.
E53/1433
24.This tenement is traversed by the following Jukurrpa:
(a)     Papanymaru (Goanna Woman Dreaming);
(b)    Wati Kutjara (Two Goanna Men Dreaming);
(c)     Papa (Dingo Dreaming); and
(d)    Kirnara (Moon Dreaming).
E53/1434
25.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming);
(b)    Papanymaru (Goanna Woman Dreaming);
(c)     Tjakalukulu (Seven Sisters Dreaming);
(d)    Wati Kutjara (Two Goanna Men Dreaming);
(e)     Papa (Dingo Dreaming); and
(f)   Kirnara (Moon Dreaming).
26.These sites are located on this tenement:
(a)     Purlinya-Purlinya, a large claypan said to be the “last one” (in the area) to go dry where Marlu and Pikuta had a big fight over their wives. During the fight, they cleared the area of vegetation and creating the depression that is the claypan; and
(b)    Kartirti #1, a rockhole on the side of a low rocky incline. Marlu came here, wandering around looking for food.
E53/1435
27.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming);
(b)    Tjakalukulu (Seven Sisters Dreaming);
(c)     Papa (Dingo Dreaming); and
(d)    Kirnara (Moon Dreaming).
28.These sites are located on this tenement:
(a)     Mangaltjara #1, a claypan adjacent to a breakaway where Marlu stopped after leaving Mangkutu. He found mangal (edible berries) here so called it Mangaltjara (tjara means having);
(b)    Tjawuwarr or Tjawura Ngari, a claypan where Marlu camped as he travelled south of Mangkutu; and
(c)     Mauntiwilurra, a claypan where there is a hole in the middle that is said to have been made by Marlu lying on his side. This site has historical, as well as cultural significance, as it was a place where Martu people who were employed or lived on nearby stations gathered during the summer months.
E53/1436
29.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming);
(b)    Papa (Dingo Dreaming); and
(c)     Kirnara (Moon Dreaming).
30.These sites are located on this tenement:
(a)     Tjawuwarr or Tjawura Ngari, a claypan where Marlu camped as he travelled south of Mangkutu.
E53/1437
31.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming); and
(b)    Warlawurru (Eaglehawk Dreaming).
32.These sites are located on this tenement:
(b)    Ngangkarriri (Banjo Well), a former soakage now the site of a windmill and tank where Marlu came here while travelling through the country to the south of Mangkutu.
E38/2211
33.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming); and
(b)    Karlaya (Emu Dreaming).
34.These sites are located on this tenement:
(a)     Ngangkarriri (Banjo Well), a former soakage now the site of a windmill and tank where Marlu came here while travelling through the country to the south of Mangkutu; and
(b)    Purnka, a large ti-tree swamp where Marlu came, made the swamp, camped and travelled on.
E38/2212
35.Our research material does not indicate whether this tenement was traversed by Jukurrpa or any recorded sites.
E69/2573
36.This tenement is traversed by the following Jukurrpa:
(a)     Marlu (Kangaroo Dreaming);
(b)    Papanymaru (Goanna Woman Dreaming);
(c)     Tjakalukulu (Seven Sisters Dreaming); and
(d)    Wati Kutjara (Two Goanna Men Dreaming);
37.These sites are located on this tenement:
(a)     Tjantarru, a claypan where Marlu and Pikuta came from Purlinya-Purlinya and had another fight. The cleared area of the claypan is the consequence of their battle. Two hills some distance to the north of here are the two beings;
(b)    Pirungkatjara, a ti-tree swamp where Marlu and Pikuta came and fought once again as they travelled in an easterly direction;
(c)     Purlinya-Purlinya, a large claypan said to be the “last one” (in the area) to go dry where Marlu and Pikuta had a big fight over their wives. During the fight, they cleared the area of vegetation and creating the depression that is the claypan.
38.The Jukurrpa link each mythic being with specific locations and area throughout the Tenements and wider area. The sites are believed by Martu informants to have been made by mythic beings associated with these Jukurrpa. Martu people believe that these dreaming beings exist in the present and impact on their lives and the environment. This forms part of the basis for the ongoing particular significance of area covered by the Tenements.
39.Martu believe that disruption of any sites which have strong Jukurrpa will have serious spiritual ramifications which will be felt throughout the entire social, physical and spiritual network that is connected to the Jukurrpa.
40.The disruption of a site is a highly punishable event which, as per the Law, will have immediate consequences for the individual or group of people deemed to have transgressed. The punishments metered out to people who have interfered with Jukurrpa are generally of an extreme physical nature so as to match the severity of the transgression.
41.The other function of punishment in relation to the disruption of a site is to ‘make right’, or to appease Jukurrpa beings for fear of the wider ramifications for all should the matter go unpunished.
Summary of particular significance
42.On the basis of my experience with the Martu people and Western Desert law and culture and the native title research I have access to, it is my opinion that the area of the Tenements is of significant cultural importance to the claimants. This significance is due to the extensive Jukurrpa and areas / sites of significance associated with it.
43.Many of the abovementioned [sic] locations and geographic features are linked to rituals, including song, stories, dances and objects, which are associated with male initiation, and thus form part of the wider system of Martu and associated Western Desert Law.
44.The fact that these locations and areas are central to the traditional religion and ceremonial life of the Martu people underpins the reasons for their identification by Martu people as locations and areas of particular significance in need of a high level of protection and care.
45.The particular significance of the area of the Tenements may mean that any decisions would impact on all those who follow Martu law; the members of the Wiluna native title claim may not be able to make the decision alone. This is something which would need to be established as a matter of traditional law and custom after consideration of the particulars of the act proposed.’

In his affidavit, Mr Langford states that he is a qualified anthropologist and has been employed by Central Desert Native Title Services since 3 July 2008, working primarily in the area covered by the Wiluna native title claim. Whilst the Tribunal is not a court and is not bound by the rules of evidence, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and support the Tribunal’s acceptance of such evidence. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claim group’s evidence, is probative: Neowarra v Western Australia [2003] FCA 1402 at [388]; Rubibi Community v Western Australia [2005] FCA 1025 at [263]; Jango and Others v Northern Territory and Others (2006) 152 FCR 150; [2006] FCA 318 at [291]-[292].
As the Full Court of the Federal Court has noted, an anthropologist such as Mr Langford may observe and record matters relevant to both the social organisation of a native title claim group and the nature and content of their traditional laws and traditional customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another (2005) 145 FCR 442; (2005) 220 ALR 431; [2005] FCAFC 135 at [89].
None of the evidence provided by the native title party has been challenged and I am satisfied both affidavits and the statement are admissible. I accept the material submitted by the native title party and will deal with it and all the documents and evidence provided by the other parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69).
As LGL1 is subject to non-disclosure directions under s 155 of the Act, I have only referred to LGL1 to the extent necessary to explain my decision and have not included material that should remain confidential due to culturally sensitive content.

Community or social activities (s 237(a))

General Observations

The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 concerning conditions deemed to affect exploration licences and s 20(5) relating to exploration activity on pastoral leasehold areas, as well as the fact that there are no Aboriginal communities situated on the proposed licence areas, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party regarding the area of land concerned. I note the Tribunal’s previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to s 237 assessment (as per Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:
‘The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or without consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal Reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.’
The evidence submitted by the native title party refers in general terms to activities such as hunting, camping, gathering food and looking after country, carried on in and around the area covered by the proposed licences (Robert Wongawol at 5, 25; Frankie Wongawol at 14, 15; Lindsey George Langford at 22). Mr Robert Wongawol also states (at 11) that he and other members of the native title party employed as rangers by Central Desert Native Title Services visit the area to maintain rock holes and sacred sites and engage in burning, though he gives no indication of where or how frequently these activities take place.
In Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. In that matter, the Tribunal found (at [11] and [13]) the requisite level of interference with social and community activities was unlikely as there was little specific evidence of the activities carried out over the area. Whilst the evidence in the present matter presents a number of general statements regarding the community and social activities carried on in and around the proposed licences, it does provide information about specific areas where such activities take place. I have, therefore, found it appropriate to deal with each of the proposed licences separately.

E53/1435 (WO09/935) and E53/1436 (WO09/936)

The evidence adduced by the native title party refers to three sites in and around E53/1435 and E53/1436 where community and social activities are said to be carried on:
·Martu-ku Ngurra
·Mangaltjara; and
·Matuwa.
Mr Robert Wongawol and Mr Langford describe Martu-ku Ngurra as a permanent camp for Martu people located north of the Lorna Glen homestead (Robert Wongawol at 13-15; Lindsey George Langford at 11, 22). Mr Robert Wongawol states that he and other members of the native title party stay at the camp ‘[a]bout twice a month’ (at 13) and engage in the following activities:
·hunting (at 13-14);
·gathering food (at 13-14);
·teaching children about the area (at 15);
·protecting ceremonial grounds and water areas (at 11).

Mr Langford states that members of the native title party frequently visit the area around Martu-ku Ngurra ‘to hunt, teach children about the area and look after country’ (at 22). He also states that the camp serves as ‘a base for access to areas of cultural significance to the Martu, including those areas around Lake Carnegie’ (at 22).

In relation to Mangaltjara, Mr Robert Wongawol states that traditional owners ‘used to’ visit the site to collect seeds for damper (at 35) and that he and other members of the native title party ‘visit it all the time ... [to] see if it has water’ (at 36). He also states that the plant whose seeds traditional owners used to collect is ‘only found in that area’ (at 36), though it is unclear whether members of the native title party still visit the area for the purpose of gathering seeds. Mr Robert Wongawol also refers to the site known as Matuwa, which he describes as a sacred men’s area where he and other members of the native title party visit to perform ceremonial activities before hunting (at 26).
While Martu-ku Ngurra does not appear on either the Tribunal’s geospatial mapping or LGL1, Mr Robert Wongawol states that the camp is near the boundary of E53/1435 and E53/1436, north of the Lorna Glen homestead (at 13). I am satisfied with his evidence in that respect and proceed on the basis that Martu-ku Ngurra is on or near the boundary of E53/1435 and E53/1436. Mangaltjara, while not shown in the Tribunal’s geospatial mapping, is indicated on the native title party’s map LGL1, but I identify it in general terms only as being in E53/1435 and near the boundary of E53/1436. Matuwa can be found on both the Tribunal’s geospatial mapping and LGL1, and appears to be near the boundary of E53/1435. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, DP Sosso held (at [35]) that there may be community or social activities carried out which are not in the area of the proposed licence but which could still be interfered with in the sense contemplated by s 237(a) provided there is a ‘clear nexus between those activities and issues being considered under s 237.’ Given the character and scope of the activities carried on by the native title party in those areas, I accept that such a nexus exists in particular between the activities carried on at Martu-ku Ngurra and Mangaltjara and the issues being considered under s 237(a) in relation to both of the proposed licences.
The size of E53/1435 and E53/1436 is 215.38 square kilometres and 215.22 square kilometres respectively, and the area of the Wiluna native title claim is approximately 47,595 square kilometres. Consistent with previous Tribunal decisions (for example, Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108), I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities. However, the evidence suggests that the sites referred to above, particularly Martu-ku Ngurra and Matuwa, have unique qualities as compared with the claim area in general, and the nature of the activities carried out on those sites as outlined by Mr Robert Wongawol and Mr Langford suggests that it would be difficult for such activities to continue without significant disturbance unless ongoing negotiations were held between the parties as envisioned by s 31 of the Act.
Hon C J Sumner, Deputy President, in Tarlpa (at [121]) makes the point that ‘[t]he Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ In the present matter, recent exploration activity on the proposed licence areas has been limited and, at least in relation to E53/1435, the predominant underlying tenure is vacant crown land. While the Yelma and Wongawol pastoral leases overlap E53/1436 by 3.0 per cent and 66.7 per cent respectively, the sites referred to by Mr Robert Wongawol and Mr Langford fall outside the area of overlap.
In Tarlpa (at [112]) Hon C J Sumner, Deputy President, held that if ‘a native title party regularly camps at a particular spot and the explorers wish to establish an exploration camp at the same place and drill or use earthmoving equipment in the near vicinity of it then it can readily be said that there is a real risk that the community and social activities would be directly interfered with’. In the present matter, the grantee party has not given any indication of the work they intend to carry out in the proposed licence area. In the absence of evidence to the contrary, I must assume that the grantee party will fully exercise its rights under the Mining Act (see Western Australia v Smith and Others (2000) 163 FLR 32; [2000] NNTTA 239 at 51-51 [34]-[35]).
Taking all these factors into account I find that there is a real risk that exploration activity on E53/1435 and E53/1436 is likely to directly interfere with the community and social activities of the native title party in a substantial or more than trivial way.

E69/2573 (WO09/438)

Mr Robert Wongawol refers to an area on E69/2573 on the edge of the Granite Peak pastoral lease where his uncle, Mr Frankie Wongawol, went ‘through the law’ (at 39). However, there is nothing in Mr Robert Wongawol’s statement or any other material submitted by the native title party to suggest these activities are still carried on in the area. In the absence of evidence that the activities described are presently carried on by the members of the native title party I cannot find that there is a real chance or risk that the proposed exploration activity will directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

E53/1433 (WO09/933), E53/1434 (WO09/943), E53/1437 (WO09/947), E38/2211 (WO10/275) and E38/2212 (WO10/276)

The evidence submitted by the native title party does not specifically refer to community or social activities carried on in and around E53/1433, E53/1434, E53/1437, E38/2211 or E38/2212. In the circumstances, I am unable to find that there is a real chance or risk that the proposed exploration activity in and around these proposed licences will directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

General Observations

The Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and the associated regulatory regime will protect areas or sites of particular significance from the likelihood of interference. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The register kept under the AHA shows there is one DIA registered site within E53/1437 and 27 sites within approximately 50 kilometres of the boundaries of the proposed licence area (Site ID 425, 426, 478, 479, 749, 1126, 1127, 1128, 1129, 1502, 2090, 2122, 2714, 2715, 2765, 2849, 2850, 2851, 2852, 2853, 2854, 2858, 19302, 25671, 25674, 25677, 25680). This does not mean there may not be other sites or areas of particular significance over or in the vicinity of the proposed licence area, and the DIA register does not purport to be a record of all Aboriginal sites in Western Australia.
In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA: (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at 386-388 [30]-[34]). The grantee party has offered to enter into a RSHA which contains processes for the protection of sites, including the conduct of a heritage survey. The grantee party’s offer is indicative of its awareness of its legal obligations under the AHA, and there is no evidence that the grantee party will not comply with its legal obligations. Moreover, the Government party states (at 6(e)) it will impose a RSHA condition on the grant. Even though the native title party have indicated that they do not accept the RSHA as an appropriate mechanism for site protection, they have the option of entering into it with the grantee party. Nevertheless, I acknowledge the view expressed by Mr Langford that because the area in question is significant for all those who follow Martu law, which includes but is not limited to the native title party, the authority to make decisions about what can be done in the area may not rest simply with the members of the Wiluna native title claim but may have to be ‘established as a matter of traditional law and custom after consideration of the particulars of the act proposed’ (at 45).
In considering whether the RSHA condition adds weight to support a finding that sites of particular significance are unlikely to be disturbed, I refer to Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118[34] and [40]. In that matter, the Tribunal noted that the RSHA only requires heritage surveys to be conducted prior to ground disturbing activity. It found that given the nature of the sites of particular significance identified, any access to the tenement by the grantee party without the guidance of the native title party was likely to lead to interference with those sites.
The native title party contentions in the present matter (at 4.24 and 4.25) outline that the area covered by the proposed licences is site rich and any unauthorised entry would likely result in interference within the meaning of s 237(b). In support of those contentions, Mr Langford provides detailed evidence of sites and Jukurrpa (or dreaming tracks) located in and traversing the areas covered by each of the proposed licences. His evidence is based on research conducted by Dr Lee Sackett on behalf of the Central Desert Native Title Services between 1999 and 2009, and his own work in the Wiluna native title claim area. Mr Langford states that the areas and locations described in his affidavit are ‘central to the traditional religion and ceremonial life of the Martu people’ and require ‘a high level of protection and care’ (at 44). Mr Langford’s evidence on this point is supported by the affidavit of Mr Frankie Wongawol, who states (at 20) that people ‘have to stay away from the places where the jukurrpa sat down’, and emphasises the need to be ‘careful’ in areas where there are ‘lots of jukurrpa’. Furthermore, while Mr Langford has chosen not to reproduce the specific gender-related aspects of the stories associated with each site, he states (at 43) that many of the areas are ‘linked to rituals, including song, stories, dances and objects, which are associated with male initiation, and thus form part of the wider system of Martu and associated Western Desert Law’.
While I accept that the sites to which Mr Langford refers have an important place in the traditions of the native title party, the issue to be determined under s 237(b) is whether there is a real risk of interference with areas or sites of ‘particular significance’ to the native title party. As the Tribunal has held on previous occasions, the native title party must provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b): see Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken [2010] NNTTA 60 (at [39]); Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 (at [43]). Although Mr Langford provides a comprehensive overview of the sites located in the area covered by the proposed licences, he gives only brief detail of the particular significance of each site. Therefore, while I accept Mr Langford’s evidence, it is my view that his evidence cannot, on its own, support a finding that an area or site is of particular significance, and any such finding must be supported by other material. As Mr Langford’s evidence relates to each of the proposed licences individually, I will consider them separately.

E69/2573 (WO09/438)

In relation to E69/2573, Mr Langford states (at 36) that the following Jukurrpa traverse the area:
·     Marlu (Kangaroo Dreaming);
·     Papanymaru (Goanna Woman Dreaming);
·     Tjakalukulu (Seven Sisters Dreaming); and
·     Wati Kutjara (Two Goanna Men Dreaming).

He also refers (at 37) to three sites located in the area covered by the proposed licence:

·     Purlinya-Purlinya, a claypan said to be the ‘last one’ in the area to ‘go dry’, and where the mythological beings Marlu and Pikuta had a fight over their wives, clearing the vegetation and creating the depression which forms the claypan;
·     Pirungkatjara, a ti-tree swamp where Marlu and Pikuta fought again as they travelled in an easterly direction; and
·     Tjantarru, a claypan where Marlu and Pikuta travelled to from Purlinya-Purlinya and had another fight, creating the cleared area that forms the claypan. The two hills to the north of the site are thought to be the two beings.

Mr Robert Wongawol also refers (at 38) to a claypan in the area covered by E69/2573, and notes (at 39-40) that the hills visible from the site are ‘where the marlu and goanna men dreamings go through’. According to Mr Robert Wongawol, the hills are also the place where his uncle, Mr Frankie Wongawol, went ‘through the law’. Given the similarity of Mr Robert Wongawol’s description of the claypan and adjacent hills and Mr Langford’s description of Tjantarru, I am prepared to accept that they are referring to the same site.

All three sites described by Mr Langford in relation to E69/2573 are recorded on LGL1. As LGL1 is restricted, I will limit myself to observing that all three sites are located beyond the area of overlap with the Granite Peak pastoral lease, which suggests that there has been little or no interference with the sites in the past. While exploration activity has occurred in the area of the proposed licences, the activity has been limited. In the absence of evidence from the Government party about the effect of past exploration activity on the sites, I do not consider interference in the sense contemplated by s 237(b) is less likely as result of that activity.
I accept that in the event the parties enter into a RSHA, the grantee party will be required to conduct a heritage survey over the area of the proposed licence before commencing ground disturbing works. However, I also recognise that the evidence submitted by the native title party indicates that unauthorised entry to particular sites may itself constitute interference for the purposes of s 237(b), especially in places where the presence of Jukurrpa is particularly strong. According to LGL1, all three sites referred to in [51] of this determination are located in the intersection of several important dreaming tracks. Furthermore, the evidence of Mr Robert Wongawol indicates that Tjantarru is an important law ground, and the hills to the north of the site suggest the continued presence of Jukurrpa in the geography of the area, which underlines the strong connections that the site maintains with the traditions of the native title party. I am, therefore, prepared to find that the sites recorded by Mr Langford in relation to E69/2573 are sites of particular significance to the native title party. Taking these factors into account, and given Mr Langford’s statement that the native title party may need to consult with other native title holders to establish what activity is permitted in the area, I am satisfied that unless negotiations take place as contemplated by s 31 of the Act, there is a real risk that sites on E69/2573 will be interfered with within the meaning of s 237(b).

E53/1433 (WO09/933)

In relation to E53/1433, Mr Langford states (at 24) that the following Jukurrpa traverse the area:
·     Papanymaru (Goanna Woman Dreaming);
·     Wati Kutjara (Two Goanna Men Dreaming);
·     Papa (Dingo Dreaming); and
·     Kirnara (Moon Dreaming).

Mr Langford does not refer to any specific sites located in the area of the proposed licence, and neither Mr Robert Wongawol nor Mr Frankie Wongawol provides any additional evidence in relation to sites situated in the area.

I appreciate that there may be sites in the area covered by the proposed licence that have not yet been recorded. Nevertheless, in the absence of evidence that sites of particular significance are situated in the area, I am unable to find that there is a real risk of interference with such sites within the meaning of s 237(b) as a result of the grant E53/1433.

E53/1434 (WO09/934)

In relation to E53/1434, Mr Langford states (at 25) that the following Jukurrpa traverse the area:
·     Marlu (Kangaroo Dreaming);
·     Papanymaru (Goanna Woman Dreaming);
·     Tjakalukulu (Seven Sisters Dreaming);
·     Wati Kutjara (Two Goanna Men Dreaming);
·     Papa (Dingo Dreaming); and
·     Kirnara (Moon Dreaming).

He also refers (at 26) to two sites located in the area covered by the proposed licence:

· Purlinya-Purlinya (see [51] above);
· Kartirti #1, a rockhole on the side of a low rocky incline, where Marlu wandered looking for food.

Having consulted LGL1, I am satisfied that Purlinya-Purlinya is on or near the boundary of E69/2573 and E53/1434. Given that I have already found in relation to E69/2573 that Purlinya-Purlinya is a site of particular significance to the native title party, I am satisfied that there is a real risk of interference with such sites on E53/1434 within the meaning of s 237(b) if the parties do not participate in negotiations in relation to that site as contemplated by s 31 of the Act.

E53/1435 (WO09/935)

In relation to E53/1435, Mr Langford states (at 27) that the following Jukurrpa traverse the area:
·     Marlu (Kangaroo Dreaming);
·     Tjakalukulu (Seven Sisters Dreaming);
·     Papa (Dingo Dreaming); and
·     Kirnara (Moon Dreaming).

He also refers (at 28) to three sites located in the area covered by the proposed licence:

·     Mangaltjara #1, a claypan adjacent to a breakaway where Marlu stopped after leaving Mangkutu and found ‘mangal’ (edible berries);
·     Tjawuwarr (or Tjawura Ngari), a claypan where Marlu camped as he travelled south of Mangkutu; and
·     Mauntiwilurra, a claypan where there is a hole in the middle that is said to have been made by Marlu lying on his side.

Mr Frankie Wongawol refers (at 16) to a site where women go for damper and Mr Robert Wongawol describes Mangaltjara #1 (at 35-36) as a place where ‘old people’ used to go to gather seeds to make damper and which members of the native title party still visit to collect water. I make further comment on this place at [63]. Mr Robert Wongawol also gives evidence in relation to a number of sites in and around the proposed licence that are not recorded by Mr Langford, such as Matuwa, a site used for ‘man’s business’ approximately two kilometres west of the south-western boundary of E53/1435 (at 26). Mr Robert Wongawol’s statement also refers (at 32-33) to Matuwa soak, a site which he states ‘is definitely a no’ and which should not be visited by the grantee party. Mr Robert Wongawol states (at 34) that in addition to those sites there are several rock holes associated with the Seven Sisters Dreaming located throughout E53/1435 and E53/1436 but which are not indicated on LGL1. Mr Frankie Wongawol also refers (at 16) to the existence of several rockholes in the area around Mangaltjara #1. Mr Robert Wongawol gives evidence about the significance of Mangkutu, a DIA registered site (Site ID 1502) located approximately seven to 15 kilometres from the boundaries of E53/1435 and E53/1436; however, I am not satisfied that the site, even though it may be of particular significance, is close enough to the proposed licence for there to be a real risk of interference within the meaning of s 237(b).
Given the prevalence of sites in and around the area covered by the proposed licence, E53/1435, I am prepared to find that the area is of particular significance to members of the native title party. Mr Robert Wongawol specifically refers (at 20) to claypan sites as ‘very important place[s]’ and states that ‘nothing should happen there.’ Mr Robert Wongawol’s evidence indicates that Matuwa is considered by members of the native title party to be a particularly significant area, being a site where ‘man’s business’ is carried on. Matuwa soak also appears to be a sensitive area, and while no exact location is given by Mr Robert Wongawol, I infer that the site is on or near Matuwa.
In light of the native title party’s evidence regarding the restricted nature of the Matuwa sites, I am satisfied that any unauthorised entry to these sites would result in interference of the kind contemplated by s 237(b). The predominant underlying tenure of the area covered by proposed licence E53/1435 is vacant crown land. Past exploration activity in the area has been limited and there is no evidence from the Government or grantee party regarding the effect of past exploration activity on sites in the area. In the circumstances, I do not consider the provisions of the AHA or the protocols set out in the RSHA sufficient to prevent such interference. Given the nature of the area and the proximity of the Matuwa sites to the proposed licence E53/1435, I am satisfied that unless the normal negotiation procedure outlined in s 31 takes place, there is a real risk of interference with sites within the meaning of s 237(b).

E53/1436 (WO09/936)

In relation to E53/1436, Mr Langford states (at 29) that the following Jukurrpa traverse the area:
·     Marlu (Kangaroo Dreaming);
·     Papa (Dingo Dreaming); and
·     Kirnara (Moon Dreaming).

He also refers (at 30) to one site located in the area covered by the proposed licence:

· Tjawuwarr (or Tjawura Ngari), see [58] above.

In addition to Tjawuwarr, LGL1 indicates that two other sites, Mangaltjara #1 and Mauntiwilurra, are located near the proposed licence.

While Mr Robert Wongawol states (at 36) that the plant whose seeds traditional owners have used to make damper is only found in the area around Mangaltjara, it is not clear from his evidence that members of the native title party still engage in that activity. In any case, I am not satisfied that this site is one of particular significance according to the traditions of the native title party. Nevertheless, as discussed in relation to E53/1435, I am prepared to accept that Tjawuwarr and Mauntiwilurra are sites of particular significance, and Mr Robert Wongawol’s evidence suggests that any activity in the vicinity of those sites may give rise to interference of the kind contemplated by s 237(b). While the Yelma and Wongawol pastoral leases overlap E53/1436 by 3.0 per cent and 66.7 per cent respectively, they do not overlap the eastern part of the proposed licence where the sites are located, and I am satisfied that there has been little or no interference with these sites in the past. Consequently, I am satisfied that there is a real risk of interference to these sites of particular significance within the requirements of s 237(b) if the grant of E53/1436 proceeds without consultation with the native title party as contemplated by s 31 of the Act.

E53/1437 (WO09/937)

In relation to E53/1437, Mr Langford states (at 31) that the following Jukurrpa traverse the area:
· Marlu (Kangaroo Dreaming); and
· Warlawurru (Eaglehawk Dreaming).

He also refers (at 32) to one site located in the area covered by the proposed licence:

· Ngangkarriri (or Banjo well), a former soakage now the site of a windmill and tank where Marlu came while travelling through the country south of Mangkutu.

The DIA register also indicates one registered site, Nyunma (Mythological, Quarry - Site ID 2716), a closed site situated in the area of the proposed licence.

Whether or not Ngangkarriri is considered a site of particular significance by the native title party, Mr Langford’s own evidence indicates that it has already experienced a significant degree of interference. Although the material supplied to the Tribunal by the Government party does not suggest there has been a great deal of exploration activity in the area covered of the proposed licence, the Yelma pastoral lease overlaps the area by 98.8 per cent. The windmill and tank referred to by Mr Langford are visible signs of the impact of pastoral activities in the area. The native title party has not provided the Tribunal with specific or detailed evidence as to the particular significance of Nyunma, or support for the sites and areas of significance referred to by Mr Langford in the form of statements or affidavits from the native title party. The grantee party is on notice through the DIA register of the existence of Nyunma and I am satisfied that the regulatory regime will be sufficient to protect this site and to ensure interference with other sites or areas on E53/1437 of significance or particular significance to the native title party is unlikely. Taking these factors into account, I find it unlikely that there is a real risk of interference with sites within the meaning of s 237(b).

E38/2211 (WO10/275)

In relation to E38/2211, Mr Langford states (at 33) that the following Jukurrpa traverse the area:
· Marlu (Kangaroo Dreaming); and
· Karlaya (Emu Dreaming).

He also refers (at 34) to two sites located in the area covered by the proposed licence:

· Ngangkarriri (or Banjo well), see [64] above; and
· Purnka, a large ti-tree swamp where Marlu came, made the swamp, camped and travelled on.

For similar reasons as discussed in relation to the proposed grant of licence E53/1437, I am satisfied that there is no real risk of interference to Ngangkarriri associated with the grant of E38/2211. Nevertheless, whilst there is no specific reference to Purnka in the evidence of Mr Robert Wongawol and Mr Frankie Wongawol, the latter’s affidavit does draw a distinction (at 19-20) between ‘places where [the Jukurrpa] stopped and places where they just travelled over.’ According to Mr Frankie Wongawol, people need to ‘stay way back’ from places where the Jukurrpa ‘sat down’. Mr Frankie Wongawol maintains that such places are sacred, and he explicitly states (at 20) that nothing should be done in those areas. Relevantly, in the story Mr Langford recounts in relation to Purnka, it is described as a place where Marlu stopped to camp, creating the swamp which forms the site. LGL1 also indicates that the site is located on the Marlu dreaming track. On the basis of Mr Frankie Wongawol’s evidence about the importance of such sites, I can infer that Purnka is a site of particular significance to the native title party. Given the restrictions referred to by Mr Frankie Wongawol regarding access to and activity on such sites, I am also prepared to infer that unauthorised entry to Purnka could result in interference of the kind contemplated by s 237(b). Unlike Ngangkarriri, the evidence before me does not suggest that interference has already taken place. Consequently, I am satisfied that there is a real risk of interference with sites such as Purnka within the meaning of s 237(b) if the grant of E38/2211 proceeds without consultation with the native title party.

E38/2212 (WO10/276)

Mr Langford states (at 35) that the research material to which he had access does not indicate whether any sites are located on E38/2212 or whether any Jukurrpa traverse the proposed licence. Neither Mr Robert Wongawol nor Mr Frankie Wongawol provides any specific evidence in relation to sites situated on the area covered by E38/2212. Consequently, I do not find that the proposed exploration activity is likely to result in the kind of interference contemplated by s 237(b).

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

The native title party made no contentions and produced no evidence relating to issues arising under s 237(c). The only material before me in relation to s 237(c) are the Government party’s contentions and the evidence submitted in support of those contentions, and I am satisfied on that basis that the grant of the proposed licences is not likely to result in disturbance of the kind contemplated by s 237(c).

Determination

The Tribunal determines that the grant of the following exploration licences to Kingx Pty Ltd are acts attracting the expedited procedure:
·     Proposed licence E53/1433 (WO09/933)
·     Proposed licence E38/2212 (WO10/276)
·     Proposed licence E53/1437 (WO09/937)
The Tribunal determines that the grant of the following exploration licences to Kingx Pty Ltd are not acts attracting the expedited procedure:
·     Proposed licence E69/2573 (WO09/438)
·     Proposed licence E53/1434 (WO09/934)
·     Proposed licence E53/1435 (WO09/935)
·     Proposed licence E53/1436 (WO09/936)
·     Proposed licence E38/2211 (WO10/275)

Helen Shurven
Member
25 August 2011