Wilma Freddie/Western Australia/Stephen Grant Povey - [2001] NNTTA 162

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie/Western Australia/Stephen Grant Povey, [2001] NNTTA 162
(19 December 2001)

Application No: WO99/882

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

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

Wilma Freddie (native title party)

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The State of Western Australia (Government party)

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Stephen Grant Povey (grantee party)

REASONS FOR DETERMINATION

Tribunal:                   Ms Jennifer Stuckey-Clarke, Member
Place:  Perth
Date:  19 December 2001

Catchwords: Native Title – future act – proposed grant of exploration licences – expedited procedure objection application – not acts which attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s237, Aboriginal Heritage Act 1972 (WA), Mining Act 1978 (WA).
Cases:Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co. Ltd (1911) 12 CLR 398
Re Mirriuwung and Gajerrong Peoples (1996) 128 FLR 90

Ward v. Western Australia (1996) 69 FCR 208
Cheinmora v Striker Resources (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467
Western Australia/Derrick Smith & Ors on behalf of the Gnaala Karla Boodja People/South Coast Metals, WO99/511, unreported, Deputy President Franklyn, 23 June 2000
Smith v Western Australia [2001] FCA 19
Roy Dixon on behalf of the Garawa and Gundanji People & Ors/Ashton Mining Limited/Northern Territory of Australia, DO00/1-DO00/7, unreported, Deputy President Franklyn, 23 April 2001
Western Australia/C.N.Hardie/Banjo Wurunmurra and Rita Dann on behalf of the Bunuba Native Title Claim Group, WO00/92, unreported, Member Stuckey-Clarke, 25 June 2001
Albert Little on behalf of the Badimia People v. The State of Western Australia and Wildbeach Corporation Pty Ltd [2001] FCA 1706
Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/Allan Neville Brosnan/Western Australia, WO00/427, unreported, Mr John Sosso, 17 August 2001

REASONS FOR DETERMINATION

Background

By notice dated 12 November 1999 issued pursuant to s.29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the Government party”) advised its intention to grant two exploration licences 53/870 and 53/872 (“the exploration licences”) to Stephen Grant Povey (“the grantee party”). The two exploration licences respectively cover the following areas:
53/870, 202.7 sq km, 12km north easterly of Wiluna
53/872, 33.74 sq km, 14km easterly of Wiluna

Both the exploration licences are in the Shire of Wiluna. The notice explained that the grant of the exploration licences authorises the applicant to explore for minerals for a term of five years from the date of grant. The notice included the statement:

“the State of Western Australia considers that these acts are acts attracting the expedited procedure.”

The notification date was 17 November 1999.

On 17 November 1999, Wilma Freddie (Native Title Claim WC99/24, registered 24 September 1999) (“the native title party”) lodged with the Tribunal an objection (by way of Form 4 made pursuant to the Act and the Native Title Tribunal Regulations 1993) to the statement in the s.29 notice that the grant of the exploration licences attracted the expedited procedure.
In paragraph 7 of Form 4, objectors are required to include a statement of reasons why the proposed act is not one attracting the expedited procedure, including a statement of the likely impact of the act on the community or social activities of the native title holders, areas or sites of particular significance and any lands or waters concerned. The native title party provided in paragraph 7, the following statement:
“The Objector believes that the Act will directly interfere with the carrying on of the community and social activities of the persons who are the holders of native title in relation to the land and waters concerned (the “Holders”).
The Objector believes that the Act will interfere with areas or sites which, in accordance with the traditions of the Holders, are of particular significance.
The Objector believes that the Act will cause a major disturbance to the land and waters concerned.
The Objector believes that the exercise of the rights created by the Act will cause a major disturbance to the land and waters concerned.”
Paragraph 8 of Form 4 requires objectors to outline the type of evidence that will be adduced before the Tribunal in support of the objection. The outline is as follows:
“There are two types of evidence that the Objector will produce to the National Native Title Tribunal. The first is traditional evidence. The second is literature relating to the region.
The Claimants have oral knowledge recounting the importance of the area claimed. Their traditions are still passed on in accordance with Aboriginal custom through rites and ceremonies and oral tradition. The Claimants share personal histories of enjoying the native title rights and interests on the land claimed and surrounding areas. There are cultural restrictions on the degree of public exposure allowed for this type of information.”
The objection application was accepted by the Tribunal on 5 May 2000.
The Government, grantee and native title parties were notified of the objections and a preliminary conference was held on 1 June 2000. The Government party lodged its documentary evidence on 21 August 2000 and its Statement of Contentions on 24 August 2000. The native title party lodged its contentions on 14 September 2000 without a statement of evidence.
Amended directions were made at a listing hearing on 22 September 2000 directing the holding of a s.150 mediation conference. The mediation conference was terminated on 8 January 2001 without the parties reaching agreement. The matter was referred to Deputy President Franklyn on 19 January 2001 and amended directions set with compliance by the native title party on or before 9 February 2001 and the grantee party on or before 16 February 2001; and for submissions to be provided concerning the interpretation of s.237 of the Act.
Directions were amended again at an adjourned listing hearing on 28 February 2001 before Deputy President Franklyn requiring the native title party to comply with the previous directions and lodge its evidence by 6 March 2001, and requiring the grantee party to comply with the same previous directions by 12 March 2001.
On 6 March 2001 the native title party filed unsigned statements of Billy Patch, Ken Farmer and Lee Sackett. On 23 March 2001 the native title party filed a signed but not sworn statement of Sean Mark Calderwood.
I was appointed as the Member to conduct the inquiry on 20 June 2001.
On 4 September 2001 the Tribunal wrote to the parties convening a further listing hearing on 13 September 2001. At that time an objection to the Tribunal’s jurisdiction challenging the validity of the s.29 notice issued by the State of Western Australia based upon the decision of the Tribunal in Roy Dixon on behalf of the Garawa and Gurdanji Peoples/Ashton Mining Limited/Northern Territory, NNTT DO00/1-DO00/7, 23 April 2001, had been raised in another matter before me for determination (WO0l/9). Since the objection had been raised in that matter, I convened a further listing hearing to ask whether any of the parties wished to raise any objection to the Tribunal’s jurisdiction in this matter.
Whether or not jurisdiction is contested the Tribunal must satisfy itself that it has jurisdiction to conduct its inquiry on the basis of the evidence before it. In Mineralogy Pty Ltd v NNTT (1997) 150 ALR 467 at [473], Carr J. followed the dictum of Barton J. in Federated Engine – Drivers and Firemen’ Association of Australasia v Broken Hill Pty. Co. Ltd (1911) 12 CLR 398 at [428]:
“Where jurisdiction is disputed, adequate and careful inquiry is still the duty of the court at first instance, just as it may become the duty of the superior court.
On the other hand, where jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal, be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.”
None of the parties sought to raise any objection to jurisdiction at the hearing and therefore, since no party sought to demonstrate by evidence that the s.29 notice issued by the Government party in this matter was not issued and notified in compliance with the Act, there is, in my view, no sufficient evidential basis upon which the Tribunal could find that it lacks jurisdiction to determine the matter.
At the listing hearing I also inquired of the native title party as to the inadequate state of its evidence. Mr Rynne who appeared for the native title party undertook to provide the Tribunal with properly sworn affidavits of its deponents within 14 days. The affidavits of Billy Patch and Ken Farmer were filed on 25 September 2001. The affidavit of Dr Lee Sackett was ultimately sworn on 12 October 2001 and filed on 16 October 2001. Mr Rynne explained the reasons for the delay in complying with his undertaking and I accept his explanation and intend to allow the affidavit of Dr Sackett to form part of the native title party’s evidence.
I will now proceed to determine this objection on the papers before me.

The Evidence

The documents produced by the Government party reveal that in respect of the area encompassed by exploration licence 53/870, there are four aboriginal communities in the vicinity:
Kutabubba Aboriginal Community is approximately 9 km north west of the tenement;
Bondini Aboriginal Community is on the lower western edge of the tenement;
The Village Aboriginal Community is on the lower western edge of the tenement;
Nganganawilli Aboriginal Community is approximately 1.5 km east of the tenement.
In respect of the area encompassed by exploration licence 53/872, there are three aboriginal communities in the vicinity:
Bondini Aboriginal Community is on the lower western edge of the tenement;
The Village Aboriginal Community is on the lower western edge of the tenement;
Nganganawilli Aboriginal Community is approximately 1.5 km east of the tenement.
The Government party’s documents also reveal that the land tenure for the area encompassed by exploration licence 53/870 is comprised of:
pastoral leases 3114/1253 and 3114/1260 held by Great Central Mine NL and Wiluna Gold Pty Ltd respectively;
four reserves being 6217, 20335, 21142 and 23985: 6217 a common vested in the Shire of Wiluna, 20335 a stock route, 21142 for water vested in the Water and Rivers Commission, 23985 vested in the Aboriginal Lands Trust WPL for the use and benefit of aborigines;
unallocated Crown land; and
roads.
The area encompassed by exploration licence 53/872 is comprised of:
pastoral lease 3114/1260 held by Wiluna Gold Pty Ltd;
Special Lease 3116/10263 held by Ngangganawili Community Inc;
Reserves 6217 and 25670: 6217 a common vested in the Shire of Wiluna, 25670 vested in the Aboriginal Lands Trust WPL for the use and benefit of aborigines; and
roads.
The Government party’s documents reveal that for the area encompassed by exploration licence 53/870 there are six sites recorded in the Interim Register of Aboriginal Sites (Women’s Ceremonial Site, Cork Well, Tjilla, Tjanapi, Saltneck/Waterhole and Wiluna Reserve Sacred Store). Site No. 2138 , Wiluna Reserve Sacred Store, is a reliable site of composite significance being a closed, mythological, repository/cache, man-made structure and artefact site. There is also one site recorded on the Permanent Register, Site No. 15925, Gunbarrel Site 01, which is a reliable site classified as an artefact site.
For the area encompassed by exploration licence 53/872 there are two sites on the Interim Register (Blowout Site, an artefact site, and Yuruwari, a closed mythological site). Both are classified unreliable. There is also on the Permanent Register a reliable artistic site, Site No. 16037, named Millbillillie Claypan.
The Tengraph map provided by the Government party also shows that the Stock Route is the Canning Stock Route and it cuts across the north east corner of the area encompassed by exploration licence 53/870. No details as to the date of proclamation of this reserve or any other particulars in relation to it have been provided to me.
The Government party’s documentary evidence also includes the conditions and schedule of endorsements to be imposed on the proposed tenements pursuant to the Mining Act which are set forth as particulars to paragraph 7 of the Government Party’s Statement of Contentions.
The native title party relies upon the undated signed statements of Billy Patch of Wiluna and Ken Farmer of Kukkabubbaa Aboriginal Community filed on 25 September 2001 and of Sean Mark Calderwood filed on 23 March 2001 as well as the affidavit of Dr Lee Sackett sworn 12 October 2001 and filed on 16 October 2001.
The statement of Billy Patch of Wiluna is as follows:
“1.Mr Patch is a member of the native title claim group for Wiluna.
2.The area of the proposed tenements and its surrounds covers an area of land that is of particular significance to the native title claim group as it describes the travels of a spiritual being who, in accordance with the beliefs of the claim group, provides one of the foundations of those beliefs – the ‘story’ articulating that belief is known as ‘Wati Kutjara’.
3.Relative to that story and the tenement area sites as described in the attachment to the objectors contentions (sic) and numbered 585, 1812, 1811, 0029, 1164 are ‘main’ places.
4.In accordance with the traditions of the native title claim group a person is said to interfere with sites by accessing the area without consultation with the aboriginal persons who have responsibility to care for those sites.
5.Interference occurs as it is the responsibility of the custodians to ensure that the story for the area matches the geographical features of the area and that the story is passed down through the generations. An example of interference is that the story for a particular area and as to why it is so, is interfered with if those who hear the story also see other things (such as drill holes or land disturbance) that doesn’t match that story.
6.Custodians of site also have a responsibility to Aboriginal persons outside of that claim area. Should it be that a person without authority enters a site, the person with responsibility is called upon to answer for that entry.”
The statement of Ken Farmer of Kukkabubbaa Aboriginal Community is as follows:
“1.The persons who hold native title (‘the objectors’) relevant to the tenement area are broadly classed as the Wiluna Community, the majority of whom live in Wiluna or in settlements near that township, there is in excess of 200 aboriginal people living in and around Wiluna. The two main settlements are Bondini (to the east of Wiluna township) and Kubbabubbba (sic) (to the north of Wiluna township). The Wiluna community has a substantial connection with the area of the proposed tenements and surrounds by reason of existing residence and historical residence in such areas as Nganganawili areas. Two community businesses are located in the tenement area, Desert Gold orchard and Emu farm.
2.The objectors subscribe to traditional beliefs and practices, as they are the persons who are required as a matter of traditional law to be responsible to care for and maintain sites of traditional significance.
3.The objectors regularly hunt and gather in the area of the proposed tenements and surrounds. That is the area is (sic) close to their places of residence, and hunting and gathering is an activity of the community, the activity takes place on a weekly basis if not more frequently.
4.The area of the proposed activity and surrounding areas is that area within the claim where hunting and camping activity regularly occurs as distinct from other areas of the claim. The reason for this is that the community does not have ready access to vehicles to transport them all to the claim area and consequently the tenement and surrounding areas is within easy reach of the objectors.
5.The tenement and surrounding areas have been the subject of past exploration activity. The area contains a number of capped drill holes.
6.The hunting stocks of the area have diminished and the community wants the mining persons operating in the Wiluna area to put in bores as water sources to attract greater number (sic) of animals back to the area for hunting purposes. The community also has concerns that in the past waterholes have been fowled (sic) by mining activity and that this occurs within (sic) any attempt being made to rectify the damage.
7.The community is also concerned that ground disturbing activity damages the natural vegetation and the ability to access bush tucker is interfered with. This affects community activities at two levels: firstly availability to access bush tucker is interfered with and secondly women in the community conduct ‘seed collection’ as a business, interference with the natural vegetation in the area of easy access by the community requires travel further afield to conduct that business.”
The signed statement of Sean Mark Calderwood says that as the project officer employed by the Ngaanyatjarra Council, the representative of the native title party, “to provide support services to the Wiluna Native Title Claim and other western desert based claims” and being an anthropologist by occupation, he visited Wiluna and had meetings with the Wiluna claimants (pars i-ii). He continues:
“(iii)During the course of my attendance I travelled to the intended area of the tenements with Wiluna claimants and had a number of discussions with claimants. The members of the claim group with whom I had discussions were: Billy Patch, Mrs Patch, Kenny Farmer, Colin Richards, Kitty Richards, John Long, Dusty Stephens. My statement is informed by; my viewing the tenement areas; discussions with the claim group; my experience as an anthropologist with other native title claim groups in desert areas of Western Australia and the Northern Territory.
(iv) The tenements are in an area that is regularly accessed by claimants as:
(1)the area borders or is close to the communities in which the claimants live; and
(2)The area contains sites of particular significance to both male and female members of the claim group.
(v)Many of the members of the Wiluna claim live in residential communities for which land has been reserved for that particular purpose. The Kuttabubba community is located about 10 kilometres north west of the tenements; Bondini community is on the lower western edge of the tenements. The Ngaangawilli community is also on the lower eastern edge of E53/870. In addition to those communities, claimants live in the Wiluna township, which is about 15 kilometres to the west of the tenements.
(vi)Also the claimants have land reserved on tenement E53/872 that allows for the conduct of an emu farm and orchard.
(vii)Other than those activities conducted in (vi) there are no other non traditional activities conducted in the area. It appears that some exploration activity may have been conducted on the tenements in the past as there is a bore erected close to a claypan situated in E53/870. The claimants inform me that the bore was erected by BHP. There is no evidence of present activity of any exploration or mining nature.
(viii)The claimant group, as part of their diet, rely upon the consumption of food obtained as a result of their hunting and gathering activities conducted on the tenement. This reliance is a matter of personal choice.
(ix)The claim group hunt for kangaroo, emu, and goanna. Hunting is with firearms and dogs. Men carry out this activity. The women in the group gather emu eggs, bush bananas, mulga nuts, berries, bush tomatoes, ‘parkulta’, ‘pulya pulya’, ‘munyum’. These last three items are foods that I cannot identify by reference to English words.
(x)The claim group also access the tenement areas to collect Sandalwood to make traditional items such as boomerangs. The tenement areas are also accessed to gather seed. This seed is then onsold to the mining industry to be used in rehabilitation of mine sites.
(xi)The reason why the tenement area is of such utility to the claimants is because it is close to them. The community generally relies upon community vehicles for its transport. Most of these vehicles are unreliable and incapable of long distance travel. Long distance travel is a matter that requires careful planning and often numbers are limited.
(xii)Additionally the area of the tenement is of particular significance to the claimants as it contains or is close to a number of areas of dreaming stories. These dreaming stories form the basis of the spiritual beliefs of the claim group concerning creation. These beliefs are shared in common with other members of the aboriginal race. These stories are handed down orally from ancestors of the claimant group.
(xiii)Dreamings are stories about the activities of spiritual beings who created the earth. Particularly the area of the tenements is about the activities of ‘Wati Kutjara’. This dreaming relates the travels of two men. This particular story is one told amongst aboriginal people with traditional connections to many areas throughout Australia. Each group living in areas in which the spirit of ‘Wati Kujara” (sic) lives have responsibilities to maintain, care for and protect that (sic) sites that inform the story about the travels of the Wati Kujara (sic).
(xiv)Wilna (sic) claimants have a particular responsibility to maintain the Wati Kujara (sic) story. Parts of the story in their claim area, if interfered with, corrupt the entire Watji Kujara (sic) story. The responsibility of the claim group, and in particular the men, to preserve the geographical features, are paramount. Failure to preserve these areas will result in traditional punishment. Groups have responsibility for preserving the Wati Kujara (sic) story enforce traditional punishment.
(xv)The main area requiring protection against any physical interference as a must are those area (sic) appearing on the map attached marked as W01164, W00029, W01811, W0585, W01812.
(xvi)Other registered site areas should not be interfered with without permission of the claim group.
(xvii)While the ‘Wati Kujara’ (sic) story is predominantly a mens (sic) story, there are related stories that are womens (sic) business. Near the area of W0 1811 and W0029 (sic) there is a particular area in the tenement that can only be, in accordance with traditional beliefs, accessed by women. The claimant group women believe that any man going into this area will become ill.
(xviii)The Wiluna claimant group are familiar with mining. In the vicinity of the Wiluna township there are a number of large mines conducted by Normandy Mining. The claimant group complain that mining and exploration has interfered with their traditional pursuits in the past. They complain that exploration activity has:
(i)destroyed sites of particular significance through mechanised grading;
(ii)interfered with and fouled water sources thus forcing wildlife away from those areas;
(iii)created respiratory problems in the communities from dust generated by the use of heavy equipment.
(xix)Should exploration proceed in the area of the proposed tenements the claimant group maintain that they would be unable to access the area as:-
(i)by accident they may shoot someone during their hunting trips;
(ii)women and children would not be prepared to venture onto the tenement areas alone-they fear being near men not known to them in remote areas.
(xx)Should the claimant group be unable to access the tenement for their activities they fear that they would be required to travel further afield; this may be difficult given the inability to access reliable vehicles. The claimant group believe that the area of the tenements is the ‘backyard’ of their communities and that any exploration activity in that area interferes with the conduct of their social and spiritual pursuits both of which require unimpeded access to the tenement areas and surrounds.”

Finally, the native title party relies upon the affidavit of Dr Lee Sackett, filed 16 October 2001, who deposes to qualifications of a Ph.D in Anthropology and “extensive experience in the anthropological sense in dealing with those people in and around the township of Wiluna who make a native title claim being WC99/24” (para 1). In paragraphs 4-6 Dr Sackett makes some general observations about the spiritual beliefs of the Wiluna people and continues:
“7.Claimant men and women have both the authority to speak about the Wiluna area Dreamings and sacred sites, and important obligations towards these stories and places. As claimants tell it, they have no choice in matters regarding Dreamings and sites. They are obliged, by Dreaming dictate and by their Western Desert fellows, to look after the stories and places of their area. They cannot choose to ignore their responsibilities in this regard; matters of Dreamings and site (sic) are not matters for Wiluna people, or any Western Desert people, to decide wholly on their own. The Wati Kutjara/Two (Goanna) Men Dreaming, for instance, travelled down a line of sites that became the southern section of Canning Stock Route, then moved eastward across the desert. Today, people at such widely separated spots as Jigalong, Wiluna, Kanpa, Tjirrkarli, Blackstone, Wingellina and Docker River “look after” Wati Kutjara sites. That is, people at these widely separated spots are linked and inter-linked in shared and counter-balancing responsibilities to the Wati Kutjara Dreaming.
8.The Wati Kutjara Dreaming is closely associated with aspects of male initiatory rights and practices, and thus is well known in areas beyond those of the Beings’ immediate travels. The Dreaming’s links to male initiation mean certain aspects of the Wati Kutjara story are ngurlu (‘dangerous to or for women and the uninitiated) and hence cannot be publicly related. In fact, the very existence of some Wait (sic) Kutjara sites is known only to initiated men.
9.There are at least 35 Wati Kutjara Dreaming places in the claim area. Some of these are sites, mainly waters, left by the beings; some are instantiations, in the form of hills, boulders, trees and the like, of the Beings themselves.”

Relevant Legal Principles

Section 237 of the Act provides:
“A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying of the community or social activities of the persons who are the holders ……. 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……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 Smith v. Western Australia [2001] FCA 19, French J. provided guidance on the construction and interpretation of s.237 at para 23:
“The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a) (b) and (c) of s.237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. The protection is not to be narrowly construed. The term “likely” in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such judgment would potentially permit, without benefit of any negotiation, quite considerable risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction of forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep within the realm of the expedited procedure. Consistently with the objects of the Act, the word “likely” requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s.237.”

Justice RD Nicholson in Albert Little on behalf of the Badimia People v. The State of Western Australia and Wildbeach Corporation Pty Ltd [2001] FCA 1706 at [68-72] (“Albert Little”) agreed with the conclusions of Justice French.

Further, Justice French said in relation to paragraph (a) of s.237 at [26-27]:
“It is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to a Tribunal does not require precise or semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact on community or social activities. That is to say trivial impacts or impacts which are not relevant for carrying of the community or social activities are outside the scope of a kind of interference contemplated by the section…….The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial.”
The phrase “interfere directly with the carrying on of …community or social activities” in s.237(a) as amended is “limited to interference with the physical aspects of the carrying on of community or social activities of native title holders”: see Derrick Smith & Ors V. South Coast Metals Pty Ltd WO99/511, The Hon E M Franklyn, QC, 25 June, 2000. That view was not overturned on appeal: see Smith v. Western Australia [2001] FCA 19 at [29] per French J.
So far as paragraph (b) of s.237 is concerned the phrase “interfere with areas or sites of particular significance” is to be read giving appropriate meaning to the word “particular”. In this context, particular means special or more than ordinary significance to native title holder in accordance with tradition. As Carr J said in Cheinmora v. Striker (1996) 142 ALR 21 at 34-35:

“A relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that that site simply be of significance to the native title holders. That would lave the word “particular” with no work to do. It would also involve a notional transposition of that word from being in front of “significance” (as it appears in the sub-section) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word “particular” out… a revelant site is one that is of special or more than ordinary significance to native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the Tribunal will have to make its own factual assessment of that matter.”

In Western Australia/Winnie McHenry WO98/125, The Hon E M Franklyn,QC, 28 July 1999, the Deputy President said the particularity of the significance of areas or sites must be “capable of identification” and the significance to the holders of native titles must also be established on the evidence.
Recently the Tribunal has considered the issue of major disturbance in Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/the State of Western Australia/Allan Neville Brosnan, NNTT, 17 August, 2001, WO00/427 at [57-62]. I concur in Member Sosso’s analysis.
The Tribunal takes a common sense approach to evidence and questions of burden of proof are not determinative: Ward v. Western Australia (1996) 69 FCR 208. However as Carr J. explained at [217]:
“Where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the Administrative Tribunal applies its common sense approach to the evidence.”

The Parties’ Contentions

The Government party submitted its standard form contentions. The native title party filed two sets of contentions. The first document was filed by the native title party’s previous legal representatives, Corsers Solicitors, on 14 September 2000 (“the Corsers’ contentions”). The second set of contentions was filed by its present legal representative, Mr Rynne for the Ngaanyatjarra Council on 9 February 2001 (“Mr Rynne’s contentions”). I have read and considered both sets of contentions in coming to my determination in this matter and I will refer to any particular contentions in my reasons where it is relevant and appropriate to do so.

Reasoning

Section 237(a)

The Government party’s standard contentions in relation to this question are set forth in paragraph 4 of its contentions. The Corsers’ contentions in relation to this issue are summarised at page 6 of the document at (A)(i)-(iii) and in Mr Rynne’s contentions at paragraphs 10-17.
In relation to the issue of direct interference with community and social activities, the native title party has adduced substantial evidence from members of the claimant group as well as from two expert anthropologists. The statements of Billy Patch of Wiluna and Ken Farmer of Kukkabubbaa Aboriginal Community provide evidence of members of the claim group who reside in aboriginal communities close to the tenement areas. Both are in my view authorised to speak for the native title party: see Patch, para 1, Sean Calderwood, para (iii) and Sackett, para 7.
In relation to the area comprised in exploration licence 53/870, there is evidence led by the Government party that there are three aboriginal communities, namely Bondini Aboriginal Community, the Village Aboriginal Community and Nganganawilli Aboriginal Community, actually situated on the area of the tenement. However, I rely upon the map produced by the Tribunal and relied upon by the native title party (“the Map”) in its evidence to find that the Nganganawilli Aboriginal Community is actually situated as shown on the map in preference to finding, as the Government party’s documents show, that it is 1.5 km east of the tenement. The Map is consistent with the Government party’s information as to communities in relation to the area encompassed in exploration licence 53/872 and it appears that there is an error in the Government party’s documentation in relation to the Nganganawilli Community on exploration licence 53/870.
On both proposed tenements there are lands reserved for aboriginal community purposes and on exploration licence 53/872, the Map indicates that there are lands reserved for aboriginal community businesses conducted at Emu Farm and Desert Gold Orchard but that the bulk of the lands reserved for those businesses lies between the two tenements so that it is reasonable to infer that mining exploration activity would interfere with access at the very least to all of the lands reserved for those businesses, not just interfere with those parts of the farm and orchard actually encompassed within the tenement. These businesses are apparently agricultural in nature, involving the collection of sandalwood to make traditional items such as boomerangs and seed collection to onsell to the mining industry for rehabilitation (Calderwood, para x) and an emu farm and orchard (Calderwood, para vi and Farmer, para 1 and 7).
Ken Farmer deposes to the fact that there are more than 200 aboriginal people living in and around Wiluna and that Bondini and Kukkabubbaa are the main settlements (para 1). He deposes to regular hunting and gathering on the tenements on a weekly if not more frequent basis (para 3) and says that because the tenements are close to where the people live, they are more regularly used for these purposes because transport is easier to them than to more distant parts of the claim area (para 4). This evidence is confirmed by Sean Calderwood’s expert anthropological report of his field meetings with the native title party at paras iv, viii, ix-xi, xix-xx. I accept his evidence as that of an expert anthropologist who has based his opinions upon extensive field work with the native title party.
Further, Mr Rynne contends at para 13-15 of his contentions that there are many sites on both tenements which are of mythological or ceremonial significance, including W01164, W00029, W01054, W00589 and W01811 on exploration licence 53/870 and that site W00586 is a site of ceremonial activities on exploration licence 53/872. He also points out that very close to the tenements are other ceremonial sites reserved for the celebration of spiritual beliefs and practices and initiation ceremonies: see also Patch at 3-4 and Calderwood at xv-xvii.
Finally, at paras xix-xx, Mr Calderwood reports that mining exploration activity would inhibit the native title party’s activities on the tenements as they would be unable to access the area because they might shoot someone during their hunting trips and women and children would not be prepared to venture onto the tenement areas alone for fear of unknown men. Further they would not be able to travel further afield because of inadequate transport. Finally, he says at para xx:
“The claimant group believe that the area of the tenements is the ‘back yard’ of their communities and that any exploration activity in that area interferes with the conduct of their social and spiritual pursuits both of which require unimpeded access to the tenement areas and surrounds.”
I conclude that in light of the evidence before me, that it is likely that the grant of both proposed tenements will directly interfere with the extensive community and social activities of the native title party, including ceremonial religious activities, carried out on the land, hunting and gathering activities and the conduct of the native title party’s businesses at Emu Farm and Desert Gold Orchard which are conducted on the land encompassed within the tenements.

Section 237(b)

The evidence referred to in [20-21] above indicates that on both tenements there are sites recorded and on both there is at least one site on the Permanent Register of Aboriginal Sites. However, this evidence is not sufficient to justify a finding that there are areas or sites of particular significance to the native title party on the proposed tenements. The native title party must demonstrate by evidence that the areas or sites are of special or more than ordinary significance to the native title holders in accordance with their traditions (my emphasis). In fact, the evidence presented by the native title party did not refer with any specificity to the Register of Sites and did not attempt to establish any particular significance of any site on the Register by reference to its identification, description or status on the Register. No attempt was made to correlate the sites on the Register with any site indicated on the Map, so as to demonstrate its particular significance to the native title party.
In his statement, Billy Patch says that the area of the proposed tenements is of particular significance for the native title party in relation to the Wati Kutjara Deaming and particularises the ‘main’ places as 585, 1812, 1811, 00029 and 1164. All of those sites and areas are located on the Map on the area of exploration licence 53/870. Site 585 appears on the Map lying between the two proposed tenement areas but is not encompassed within either. This evidence is confirmed in Calderwood at xv and xvii. Dr Sackett confirms Billy Patch’s authority to speak about the Wiluna area Dreaming and sacred sites (at para 7) and see Calderwood at iii. Dr Sackett also says that there are at least 35 Wati Kutjara Dreaming places in the claim area (para 9) although s/he makes no particular observations about any particular sites or areas on the proposed tenements themselves.
On the basis of this evidence, I find that Mr Patch’s authority to speak for the native title party has been established by the expert anthropologists’ evidence in the sense required by Justice R D Nicholson in Albert Little at [79]. In relation to exploration licence 53/870, his evidence and Mr Calderwood’s evidence establishes that the ‘main’ places particularised by Mr Patch are areas of particular significance to the native title party. However, in relation to exploration licence 53/872 there is before me no evidence of any particular significance attached to any site or area on that tenement by the native title party. There is only an assertion by Mr Rynne’s contentions in paragraph 13-14 that Site 512 is of particular significance. Mr Patch did not refer to that site as a ‘main’ place and in my view if the area were of particular significance in the requisite sense he would have indicated that. I therefore find that there are no sites of particular significance to the native title party on the area encompassed by exploration licence 53/872.
Consequently, the issue of likelihood or otherwise of interference with the areas or sites of particular significance on exploration licence 53/870 only arises for determination. In my view, the presumption of regularity does not lead me inexorably to find in this case that no such likelihood exists. I appreciate that in the usual case the decision of Justice RD Nicholson in Albert Little at [77] that, given the protective effect of the sections in the Aboriginal Heritage Act, the chance of interference is remote is binding upon this Tribunal but the assessment of such likelihood is a matter to be assessed on the facts of each case. In this matter, the grantee has given no evidence of his intention to comply with the Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers or any details as to how in fact he will proceed so as not to interfere with the important sites on the tenement. The area of the proposed tenement has been shown to be extremely site-rich: see Re Mirriuwungand Gajerrong Peoples (1996) 128 FLR 90. In these circumstances, it is incumbent upon the grantee to lead some evidence upon the basis of which the Tribunal might be assured that interference, intentional or otherwise, is not likely given the practical difficulties associated with avoiding interference with sites in extremely site rich areas. In conclusion, I find that the grant of exploration licence 53/870 only is likely to interfere with sites or areas of particular significance.

Section 237(c)

The Government party addressed this issue in paragraph 6 of its standard form contentions. Corsers addressed the issue briefly at page 7 and Mr Rynne at paragraph 19 where he contended: “Given the cultural richness of the area there is a real chance that exploration may cause major disturbance.”
For the native title party, evidence was led to indicate that there has been some past exploration activity leaving behind capped drill holes: Farmer at para 5, Calderwood at para xviii. There was also evidence that exploration activity elsewhere near Wiluna has interfered with water sources and wildlife and created respiratory problems in the communities from dust generated by use of heavy equipment: Calderwood at para xviii. Ken Farmer at para 7 says that the community is also concerned that ground disturbing activity damages the natural vegetation and the ability to access bush tucker is interfered with.

On the basis of the evidence before me I conclude that the exercise of the rights conferred by the licences could result in some disturbance to land in the area of the proposed tenements. However, having regard to the nature of the conditions and regulatory regime which would apply to the exercise of the exploration licence when granted, and to the fact that there has been previous mining activity on the land, I find that the grant of the tenements 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 such lands or waters.

Determination

The determination of the Tribunal is that the grant of exploration licences 53/870 and 53/872 to Stephen Grant Povey are not acts which attract the expedited procedure under the Native Title Act 1993.

J. Stuckey-Clarke

Member

19 December 2001