Yindjibarndi Aboriginal Corporation/Western Australia/Mithril Resources Ltd

[2010] NNTTA 209

NATIONAL NATIVE TITLE TRIBUNAL                   

Yindjibarndi Aboriginal Corporation/Western Australia/Mithril Resources Ltd, [2010] NNTTA 209 (16 December 2010)

Application No:        WO10/385

IN THE MATTER of the Native Title Act1993 (Cth)

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

Yindjibarndi Aboriginal Corporation – (WC99/14)

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The State of Western Australia

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Mithril Resources Ltd

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

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  16 December 2010

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237

Mining Act 1978 (WA), ss 8, 20(5), 37, 38, 63

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea[1]

[1] Throughout this determination, reference is made to ‘Daniel O’Dea’ and to ‘Member O’Dea’; such references are to one and the same person and are to be read as  references to ‘Member O’Dea’, a duly appointed member of the National Native Title Tribunal (‘the Tribunal’).

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner[2]

[2] References, variously, in this determination to ‘Hon C J Sumner’; ‘Deputy President Sumner’; and/or ‘DP Sumner’ are references to one in the same person, and are to be so read.

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso[3]

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia (2002) 169 FLR 437

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Solicitors for the             Mr George Irving, John Toohey Chambers
native title party:            Mr Simon Millman, Slater and Gordon

Solicitor for the               
Government party:         Mr Rod Wahl, State Solicitor’s Office

Representative for the    
Government party:         Mr Greg Abbott, Department of Mines and Petroleum

Representative for the

grantee party:                 Mr Chris Clegg, Statewide Tenement and Advisory Services Pty Ltd

REASONS FOR DETERMINATION

1. On 13 January, 2010, the State of Western Australia (the ‘Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2158 (‘the proposed licence’) to Mithril Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licence comprises an area of 143.56 square kilometres and is located 52 kilometres south of Karratha, in the Shire of Ashburton and the Shire of Roebourne. The proposed licence overlaps, at 55.26 per cent, the determination area of the Yindjibarndi People [Native Title Claim No. WC99/14, registered on 14 July, 1999, as the registered claim of the Ngarluma/Yindjibarndi People, was determined by the Federal Court to hold native title on 2 May, 2005]. The Yindjibarndi Aboriginal Corporation (‘the native title party’) is the registered native title body corporate, being the prescribed body corporate on the National Native Title Register, determined by the Court to hold the native title rights and interests in trust for the common law holders.

3. The proposed licence is also 44.74 per cent overlapped by the registered claims of the Yaburara and Mardudhunera People (WC96/89 – registered from 1 August, 1996) and 0.20 per cent by the Kuruma Marthudunera People (WC99/12 – registered from 24 June, 1999).  No other native title claims overlap the tenement.

4. On 11 March, 2010, the native title party made an expedited procedure objection application to the Tribunal in respect of the proposed licence.

5. On 12 April, 2010, Deputy President Sumner was appointed as the Tribunal member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

6. On 12 May, 2010, an expedited procedure objection application was lodged with the Tribunal in respect of the proposed licence by Mark Lockyer and Others on behalf of Kurama Marthundunera (WO10/649).  On 22 September, 2010, an agreement was reached by the Kurama Martudunera native title party and the overlapping objection was withdrawn.

7. At the first status conference on 4 August, 2010, following a preliminary conference, the native title party representative requested an inquiry and the matter was adjourned to the listing hearing. This was on the basis that agreement would be reached in the interim or parties would submit contentions and evidence by the directed dates.

8. The Government party lodged its evidence and contentions on 13 and 27 August, 2010. Following a requests to amend compliance dates, the native title party filed a statement of contentions on 10 September, 2010. Native title party supporting evidence, lodged on the same date, included the signed affidavit of Mr Michael Woodley. The grantee party lodged its statement of contentions on 17 September, 2010.

9. On 8 October, 2010, I was appointed by DP Sumner as the member for the purposes of the conduct of the Inquiry. The parties had requested at the listing hearing on 2 September, 2010, that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).

Legal principles

1. 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.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]-[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.

2. Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used.  Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.

3. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President (‘Maitland Parker’) at [31]–[38], [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker.  This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March, 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in Relation to the Proposed Act

1. The Government party documentation establishes that the underlying land tenure on the proposed licence is as follows:

   • Vacant crown land (65.5 per cent overlap);
   • Indigenous Owned Lease, Mt Welcome 3114/716 (34.5 per cent overlap);
   • Historical Lease 394/438 (34.5 per cent overlap); and
   • Historical Lease 394/440 (less than 0.1 per cent overlap).

2. The DMP’s Quick Appraisal provided by the Government party notes the existence of three file notation areas. These overlap the proposed licence to varying extents, under the jurisdiction of the DMP. These are FNA/8000 (for Ngarluma Aboriginal Corporation PBC [37.7 per cent]), FNA/8001 (Yindjibarndi Aboriginal Corporation [35.3 per cent]) and FNA/8487 (for the Department of Planning and Infrastructure [33.8 percent]).

3. There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence.

4. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals four registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) (‘AHA’) within the tenement as follows:

   • Site ID 6928 – Zebra Hill (Permanent register, open access, no restrictions – mythological).
   • Site ID 6934 – Munni Munni Creek (Permanent register, open access, no restrictions – engraving).
   • Site ID 18088 – Maitland River (Stored data, closed access, no restrictions – ceremonial, mythological, historical).
   • Site ID 18996 – Munni Munni 2/2001 (Lodged, open access, no restrictions – artefacts/scatter)

5. Government party documentation indicates a live exploration tenement and a live mining tenement overlapping the area of the proposed licence at 0.1 per cent and 0.5 per cent respectively. There are three pending tenements overlapping the proposed licence: an exploration tenement at 2.2 percent; a mining tenement at 0.1 percent; and a prospecting tenement at 0.4 per cent.  There are a large number of ‘dead’ exploration licences, mining licences, mineral claims and temporary reserves, active between 1966 and 2009, overlapping the proposed licence.

6. The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4). Additional conditions imposed require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities (conditions 5-6).

7. The following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:

• The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

• The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

• The grant of this licence does not include the land the subject of prior Exploration Licence E47/587, E47/905 & E47/1074. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.

• The land the subject of this licence affects a Heritage Place – Aboriginal Heritage Area (AHA) 74 registered pursuant to the Heritage Act of WA Act 1990

1. In addition, the Government party proposes to impose a condition which allows the native title party, within ninety days of the grant of the licence, to request the grantee party execute a Regional Standard Heritage Agreement, within thirty days of the request, of the type ‘endorsed by peak industry groups and Pilbara Native Title Service’ in favour of the Yindjibarndi Aboriginal Corporation.

Evidence provided by the native title party

1. The submissions of the native title party include the signed affidavit of Mr Michael Woodley (‘MW Aff’), sworn on 10 September, 2010, and made in the following terms:

   ‘AFFIDAVIT OF MICHAEL WOODLEY

   I, Michael Woodley, Chief Executive Officer of Yindjibarndi Aboriginal Corporation; and, Chief Executive Officer of Juluwarlu Aboriginal Corporation, of 664 Lockyer Way, Roebourne, in the State of Western Australia, make oath and say as follows:

   1.I am a member of the Yindjibarndi People (the society of Aboriginal people whose native title rights and interests were recognised by the Federal Court of Australia in Daniel v State of Western Australia [2005] FCA 536, and upheld by the Full Court of the Federal Court, in Moses v State of Western Australia [2007] FCAFC 78) and a member of the Native Title Applicant, in the Yindjibarndi #1 Native Title Determination Application (WAD6005/03).

   2.I am the Chief Executive Officer of Yindjibarndi Aboriginal Corporation, the Native Title Party in this matter and a senior Yindjibarndi Lawman.  As such, I am authorised to make this affidavit, on behalf of the Native Title Party, and on behalf of the Yindjibarndi People, and the other senior Yindjibarndi Lawmen.

   3.Except where I say otherwise, the facts set out in this affidavit are within my own knowledge and belief and, to the best of my knowledge and belief, they are true and correct.

   4.I make this affidavit in support of the Statement of Contentions filed by the Native Title Party objecting to the expedited procedure for the grant of Exploration Licence E47/2158 to Mithril Resources Ltd (“Mithril”).

   5.I am aware that the Government is wanting to grant Exploration Licences in the Yindjibarndi Native Title Area to Mithril, and is saying that Yindjibarndi shouldn’t get the right to negotiate because the Government reckons Mithril’s work isn’t likely to interfere with any of our community activities or with any of our sites or areas of significance; and that the work won’t be a major disturbance.  The Yindjibarndi disagree.

   Community Activities

   6.The Yindjibarndi People, as a community, looks after the area of our country where Mithril wants its exploration licence and we do a lot of community activities in that area to make sure it is looked after in the proper way.  The reason we do this is because Yindjibarndi country is a religious domain for us.  We believe it is inhabited by the spirits of our old people and by Marrga, powerful spirit beings from Ngurranyujunggamu, which in Yindjibarndi language means “when the earth was soft”.  The Ngurranyujunggamu is our “Dreamtime”; but for us, this is not just something that happened a long time ago because we believe it is still here today.  We live in the Ngurranyujunggamu.

   7.The Yindjibarndi People believe that Yindjibarndi country was created by Marrga in the Ngurranyujunggamu, after laws were given to the Marrga by Minkala, our sky god.  The Marrga foresaw their own passing and so they gathered together all the Ngaardangarli (Pilbara Aborigines), at Gumunha, in the heart of what is now Yindjibarndi country – not far from the area where Mithril wants its exploration licences.  In those times, all the Ngaardangarli spoke a common language, were of one group, and carried no responsibility for any particular Law or country.  The Marrga divided the Ngaardangarli into different groups and put each group into the domain where the Marrga had put their language and Law.  Each group was commanded by the Marrga to speak for their domain in the language of that domain and to look after their domain in accordance with the Law for that domain.

   8.Yindjibarndi country is acknowledged and respected by all Ngaardangarli as a holy place, because it is the centre where all Law began; and the Law carried by Yindjibarndi, which is called “Birdarra”, is referred to by the other Ngaardangarli as Thudungu – the big sister (‘sitting on top’) of all other Law.  Yindjibarndi do not say this; instead, we refer to the Law of our neighbours, which is called “Wallijingha”, as the “top” Law.  In this way, we each show our respect for the other’s Law.

   9.The Yindjibarndi People must look after Yindjibarndi country because we belong to that country.  I do not feel or see myself as something that is separate and different from my country.  My spirit comes from my country and is always connected to it through the Ngurranyujunggamu.  It’s the same for all Yindjibarndi.  This is why, if Yindjibarndi country is hurt because our Law is not being followed, Yindjibarndi people suffer.  The Marrga still live in Yinjibarndi country and so do the spirits of our old people.  They watch us always to make sure we look after our country the proper way.  Throughout Yindjibarndi country you can see pictures of the Marrga, carved in rocks and left behind for us today as proof that they are still here.

   10.Under our Law, if we look after our country the proper way, the country looks after us and provides for us, but if we break our Law, or allow others to break it, then we suffer.  Our people can get sick or die, or the country can dry up and we get nothing.  Under our Law, “the proper way” means that Manjarnhu (strangers) should wait outside Yindjibarndi country until invited in by the bosses for our country.  The Yindjibarndi People must meet with Manjarnhu to understand how they will fit in with us, we must introduce them to our country, and we must reach an agreement with them to ensure they will not act in any way that breaks the Law for our country.  This is what we have always done because this is the only way to ensure that Yindjibarndi country will continue to look after us and provide for us.  For the Yindjibarndi People these are the community activities that we must carry out as a matter of religious observance.

   11.Important decisions about things that will affect Yindjibarndi country, such as the exploration work that Mithril wants to do, can’t be made by one person or even one family alone.  Some Yindjibarndi people and their families may have a greater say than others in the Ngurra (home area) that they come from, but in the end Yindjibarndi People, as a community, must agree.  Making decisions about looking after Yindjibarndi country is a very important community activity; and the Yindjibarndi People spend a lot of time doing this, because our Law requires us to do it.  The Yindjibarndi Aboriginal Corporation helps to carry out this community activity by organising field trips and meetings so that the Yindjibarndi community can make informed decisions.

   12.In the past, a lot of Manjarnhu have come into Yindjibarndi country without waiting to be invited.  They were not properly introduced to our country, no agreements were reached, Yindjibarndi Law was broken, special places were destroyed and Yindjibarndi people suffered.  The Yindjibarndi People do not want this to continue happening.

   13.To prevent this, the Yindjibarndi People, as a community, makes sure that Manjarnhu who come into Yindjibarndi country look after our country and show respect for it.  Today, people who respect our culture and religion contact the Yindjibarndi Aboriginal Corporation to ask about visiting Yindjibarndi country.  Sometimes we arrange for Yindjibarndi people to go with them and sometimes we arrange for Yindjibarndi people to tell them where they can go and where they should stay away from.

   14.Likewise when mining companies want to come into our country, we negotiate agreements with them to ensure they look after Yindjibarndi country in the proper way.  These agreements allow us to check up on the mining companies, especially when they are ready to leave, to make sure they are looking after our country.  Yindjibarndi people will go out and make sure the mining companies have cleared up and that they have done all the things they agreed to do to look after Yindjibarndi country.

   15.If the Yindjibarndi People are not allowed to negotiate an agreement with Mithril, then we will not be able to undertake this important community activity to look after our country the proper way.

   16.The most important community activity undertaken by the Yindjibarndi People is looking after sites and areas that are significant to us in accordance with our religious beliefs and traditions.  Looking after our sites and areas of significance, including those in the land and waters where Mithril wants its exploration licence, is an important community activity, which we must carry out in accordance with our religious beliefs because, if we did not do so, we would be breaking our Law and we would suffer.

   17.The Yindjibarndi look after sites and significant areas by ensuring that any Manjarnhu, who wish to conduct activities on Yindjibarndi country, including the land and waters where Mithril wants its exploration licences, are told where they can and cannot go to do such activities.  Sometimes this requires Yindjibarndi people to go with them to keep them away from sites and important places.  For companies, like Mithril, the Yindjibarndi People will negotiate an agreement which requires Yindjibarndi people to travel with the miner on country so we can tell the miner whether it is safe under our Law to do a particular activity in a particular area or whether it would be better to do it in a different place.  These agreements make sure that our significant sites and areas are protected by the Yindjibarndi People in the proper way under Yindjibarndi Law.

   18.Looking after our significant sites and areas in Yindjibarndi country is a very important community activity that many Yindjibarndi people spend a lot of time doing.  If this community activity is not done or is done badly then bad things can happen to the people who, under our Law, are meant to look after those sites and areas.

   19.If the Yindjibarndi People are not allowed to negotiate an agreement with Mithril, then we will not be able to undertake this important community activity and properly look after the significant sites and areas in the land and waters where Mithril wants to explore.

   Sacred Sites and Significant Places

   20.The area where Mithril wants to explore has sites and areas that are significant to the Yindjibarndi People under our Birdarra Law which we sing each year in our law ceremonies. 

   21.The original common language of the Ngaardangarli is preserved in the Burndud, the song cycle for the Birdarra Law ceremonies.  I have transcribed over eighty of these songs – word for word: its name; what it is; and what it means – because this is the foundation of all the Ngaardangarli languages.  The Birdarra is like our Bible; it contains not only the commandments of our God, Minkala, but also our history and culture.

   22.The sites and areas of significance in the country where Mithril wants to explore include watercourses, birthplaces and burial sites, Yamararra (caves), Thalu, rock carvings, artefacts, ochre quarries, flora, fauna and hunting hides.  These places are inhabited and protected by Marrga and, under our Law, a person from the Galharra group that matches each place must first approach to introduce Manjangu.

   23.It is essential for the well-being of the Yindjibarndi that Mithril is properly introduced to the watercourses in the area where it wants to explore through a religious ritual which we call Wuthurru.  Upon arriving at a watercourse an Yindjibarndi person will speak in Yindjibarndi language to the Marrga; and, taking a handful of water into his or her mouth, will blow the water back into the pool so the Marrga recognise the person as an Yindjibarndi person and will accept the person that is being introduced.

   The Wuthurru introduction ceremony is as follows:

   Ngurra gangnagarrinha yingu buluyugayi birbiwarni wanngayi thurdud mirda nhantharri bayarri...

   Country we come here today to visit you and talk straight please don’t get angry and harm us...

   Ngurra nhantharri wanggayi jujungu ngarringu nhurla yindangga mirdawa nhantharri bayarri

   Country we also ask you to let the Barrimirndi snake who lies here in this permanent pool know that we are here and ask him don’t harm us...

   Juju yinda yambali gangnagarrinha buluyugayi barni yala nyinguwayi margurra barni mirda uhantharri bayarri...

   Barrimirndi great snake and boss of this permanent pool we come to visit you, to sit by your side in respect of your laws don’t harm us...

   24.Performing the Wuthurru protects both the Manjangu and the Yindjibarndi People.

   25.Also located in the area where Mithril wants its exploration licence is the Marnmarni Thalu – the dreaming site for the blue tongued lizard.  This Thalu is associated with a nearby ochre site which must be used for the ceremonies conducted at the Thalu.

   26.We need to have an agreement with Mithril to ensure that the sites and areas discussed above are not unduly interfered with, damaged or destroyed, because if they are we will no longer be able to perform the religious ceremonies that are associated with those sites and areas.

   27.The Yindjibarndi People do not accept that the West Australian Aboriginal Heritage Act will properly protect our sites and areas of significance.  It never has before.  For example, it didn’t stop Rio Tinto from damaging Gurrwaying Yinda, in 2009 and didn’t lead to a prosecution for the offence that was committed on that site.  Likewise, the Aboriginal Heritage Act didn’t stop the destruction of a lot of significant sites and areas when the Harding River Dam was built and one of our people died because of that.

   Major Disturbance

   28.Each of the sites and areas discussed above is associated with particular religious rituals or ceremonies which we are required to perform to keep our Law, our country and our culture alive.  If those sites and areas are destroyed, it will no longer be possible to carry out these rituals and ceremonies.  It is this kind of destruction that has brought us, as a society, to the cusp of the moment where the tide of history can wash away our laws and customs.  To allow this to happen again through the grant of an exploration licence, which will permit Mithril to undertake its exploration activities on our country without our agreement, is a major disturbance as far as the Yindjibarndi People are concerned.

   29.The Yindjibarndi People are held to account for everything that happens in Yindjibarndi country.  It doesn’t matter that we are sometimes powerless and can’t stop it.  If something breaks our Law, we are responsible, and we suffer.  This has happened so often in the past that it has made the Yindjibarndi People weaker.  The judge in our Native Title Determination said that the Yindjibarndi People, as a society, had just about been washed away by the tide of history.  That hasn’t happened yet, and the Yindjibarndi People want to make sure it never happens.

   30.The spirits of our old people who inhabit that area of our country must be respected in the same way that we respect our living old people and this respect is enshrined in our Galharra.

   31.The Yindjibarndi Galharra Law today is the same law given by Minkala to the Marrga.  It was passed down to us, by the Marrga and our old people, and we are obliged to keep it going.  That is what we have done, even through the hardest of times, and it is what we must keep doing.  Galharra is a system of relationship rules, based on respect and reciprocity, which binds us together as a community and ensures that the resources of our country are properly shared by the present generation and preserved for future generations.

   32.Galharra tells us how we are all related to each other and to country.  Galharra divides all things into four groups: Banaga, Burungu, Garimarra and Balyirri.  Every animal, every plant and water place, the sun, the moon and the stars, fire, wind, water and the ngurra, and every Yindjibarndi child that is born – everything that is known to belong in Yindjibarndi country – is separated into one of these groups.

   33.The Galharra Law tells us how a person in one group must behave in relation to all people and things in that same group and in relation to all people and things in the other three groups.  Galharra is the centre of everything: it tells each of us what we must do and what we must not do in our relationships with each other and in our relationships with our country and its resources.

   34.The Galharra Law sets out the rules about the sharing of work, responsibilities and resources in Yindjibarndi country.  For example, the Galharra of each man and woman determines their roles and responsibilities at Birdarra ceremonies and funeral ceremonies.  These roles and responsibilities change, depending on the Galharra of the person who is at the centre of the ceremony.  The Galharra Law tell us who will be the bosses, and who will be the workers at these ceremonies.  The Galharra Law also tells us who we can marry and who we must avoid; who we must care for and who must care for us; who we must defer to and who must defer to us.

   35.In Yindjibarndi country, Galharra determines who should first approach a particular site whether that be Yinda, Wurndu, Thurla or Yijirri (water places), marndaa (hill, mountain, rock or stones), or garra, bargarra, bantha, barurru, mardarra, jurdun, thalu, etc(significant features in the landscape) depending on its Galharra.  If a man wants to work with wood, he will ensure that the tree from which he takes the wood shares his Galharra; otherwise it will be very difficult for him.  On the other hand a person should not eat the meat of an animal that has the same Galharra, because that animal is his or her brother or sister, and eating its meat will make you sick.

   36.When Ngaardangarli Manjangu (Aboriginal strangers) from neighbouring countries want to come into Yindjibarndi country, we are obliged under our Law to find out their intentions and their identification; and, if worthy, we will then do the Binjimagayi ritual and work out how their Galharra fits into our Galharra system.  If there is any doubt about their intentions, the Lawmen will insist that they do the Binga ritual and a duty will be imposed to test their character.  For example, they might be asked to hunt for, kill, and cook a particular animal for the elders.  If they fail to do this the proper way, they might be required to do it again or they might be sent back to their own country.  Doing the Binjimagayi ritual and, if necessary, the Binga ritual, guarantees that they are fully accepted by Yindjibarndi, as related members of our community for as long as they stay; they are now part of our system and must follow the rules; they now have fathers to watch over them and guide them in Yindjibarndi country and make sure they are safe; and, because they have shown us that they accept the Galharra, we are assured that they will honour the reciprocal rights and obligations of the Galharra Law.

   37.These rituals are still performed during our law time; however, Ngaardangarli who wish to visit Yindjibarndi country outside of law time will ring us and let us know what they wish to do.  If they are just passing through there’s no problem, but if they want to use the resources of Yindjibarndi country they still need our permission and they have to share what they get with us.

   38.The survival and wellbeing of Yindjibarndi depends on each of us following the Law that was given to us and ensuring that Manjangu do not do anything that breaks our Law.  Yindjibarndi country is obliged to produce and share its resources with the Yinjibarndi People, only if the Yindjibarndi People continues to follow the Law by caring for Yindjibarndi country and Yindjibarndi people in accordance with that Law.  The same applies to Manjangu:  Yindjibarndi People are obliged to share the resources of Yindjibarndi country with Manjangu, only if they too follow the Law by caring for Yindjibarndi country and Yindjibarndi people in accordance with that Law.

   39.This can easily be done with other Ngaardangarli because they have their own Galharra and we can easily fit them into our system.  It can also be done with people who are not Ngaardangarli and who don’t have Galharra, so long as they prove themselves worthy and we are confident they will abide by our law.  But with mining companies, like Mithril, it is not possible to fit them in to the Gulharra system and the only alternative is an agreement which sets the rules about how they must relate to Yindjibarndi.

   40.Allowing Mithril to explore in Yindjibarndi Country, without first talking to the Yindjibarndi People, and negotiating an agreement which ensures that Mithril looks after our country the proper way, is a major disturbance for the Yindjibarndi People.  It will break our law, it will cause further suffering for the Yindjibarndi People and it will further weaken our community.

1. The evidence of Mr Woodley is uncontested and I accept it. Mr Woodley says that he is a senior Yindjibarndi Law Man and member of the Yindjibarndi People and is recognised under traditional law as having the knowledge of sites and traditional stories in the area of the proposed licence. Although Mr Woodley is not one of the persons comprising the Applicant prior to the determination of native title, I accept that Mr Woodley is a member of the Yindjibarndi claim group and has the necessary authority to speak for country on behalf of the Yindjibarndi Aboriginal Corporation.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas; and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. DP Sumner has previously found, and I confirm, that section 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).

3. The Tribunal has held that the existence of prior mining or pastoral activities which have, in the past, or which currently affect the native title party’s community and social activities, may be taken into account in assessing whether the grant of an exploration licence is likely to further affect those activities (Walley at 441-442 [12]). The evidence establishes that some exploration activity has occurred in the tenement and vicinity over the years and continues. While it is possible, that some interference with the native title party’s community or social activities may have occurred, there is no specific evidence to support a finding that there has been any appreciable effect on the native title party’s community or social activities from previous exploration and mineral activity.

4. The Tribunal must also have regard to the fact that the grantee party’s access to the area would be temporary and be limited to the areas in which exploration is taking place. The documentation reveals the area of the proposed licence to be 143.56 square kilometres, whereas the area of the Yindjibarndi portion of the Ngarluma Yindjibarndi determination is approximately 10,320 square kilometres, much larger than the area of the proposed licence, and thus making it less likely that exploration on the area of the proposed licence will impact on community and social activities. There will be many other areas in which the native title party would be able to conduct those community and social activities if there were to be temporary interferences as a result of the exploration activities (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])). I further note that the grant of the proposed licence does not confer exclusive rights of access on the grantee party.

5. The principle issue under s 237(a) is whether the extent of those community or social activities is such that exploration is likely to interfere with them. Mr Woodley says that members of the native title party ‘do a lot of community activities’ in the area of the proposed licence (MW Aff, para 6). The evidence of Mr Woodley, however, in relation to community and social activities that occur over the proposed licence is relatively limited and focuses on the overarching principle of managing the Yindjibarndi country and overseeing access to areas and sites of significance. No specific evidence was provided regarding the frequency and nature of activities within the proposed licence itself. Further, there is no evidence of members of the native title party living near the proposed licence and no established physical communities of claim group members in the immediate vicinity which might help support an inference that the community or social activities are of an intensive nature. Mr Woodley deposes that he lives in Roebourne, approximately 50 kilometres north east of the proposed licence area. The evidence provided does not support a finding that the native title party’s community or social activities are likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.

6. The native title party contends that there is a positive determination of native title in favour of the Yindjibarndi People, meaning that the Yindjibarndi People constitute an Aboriginal community whose existence was given legal recognition at the time of determination, and, accordingly, that community is situated in the land and waters of the proposed tenement. It is not necessary to address this contention because a determination that the expedited procedure does not apply is justified by my findings in relation to s 237(b).

7. The task of the Tribunal in these proceedings is confined to considering whether, on the evidence before it, exploration activity is likely to result in interference or disturbance of the kind referred to in s 237 of the NTA. The evidence in this matter does not support a finding of this kind.

Sites of particular significance (s 237(b))

1. In relation to this limb of s 237, the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there are four registered sites within the area of the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

3. The evidence of Mr Woodley deposes that watercourses traverse the area of the proposed licence area (MW Aff, para 22-23). Mr Woodley deposes to the importance of  initiating visitors to the area with a religious ritual called Wuthurru in relation to this and the other watercourses which traverse the proposed licence (MW Aff, para 23). Mr Woodley describes the ceremony as involving a ‘Yindjibarndi person [who] will speak in Yindjibarndi language to the Marrga; and, taking a handful of water into his or her mouth, will blow the water back into the pool so the Marrga recognise the person as an Yindjibarndi person and will accept the person that is being introduced’ (para 23). Tribunal mapping identifies a number of watercourses which intersect the proposed licence.  

4. A further significant area is Marnmarni Thalu, which Mr Woodley says is located within the area where Mithril wants its exploration licence (MW Aff, para 25). Mr Woodley deposes that this is the dreaming site for the blue tongued lizard. The site is also ‘associated with a nearby ochre site which must be used for the ceremonies conducted at the Thalu’ (MW Aff, para 25).

5. Mr Woodley also states that there are many sites and areas of significance in the areas Mithril wants to explore which include ‘watercourses, birthplaces and burial sites, Yamararra (caves), Thalu, rock carvings, artefacts, ochre quarries, flora, fauna and hunting hides’ (MW Aff, para 22). However, Mr Woodley deposes to these being in the ‘area’ Mithril want to prospect, but does not specify that any of these particular significant sites fall within the proposed licence area.

6. The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the general area of the proposed licence, many of which are, given their nature, of particular significance to the native title party.  I am satisfied that the site identified in the native title party evidence, being Marnmarni Thalu is a site of particular significance to the native title party. The mapping evidence also establishes that there are numerous registered sites surrounding the proposed licence. The permanent registered DIA sites consisting of mythological, engraving, ceremonial and artefacts/scatter further supports the native title party assertions. Further corroboration of sites and areas of significance is included in paragraph 22 of Mr Woodley’s affidavit, as noted above.

7. The affidavit of Mr Woodley evidences concerns about mining companies entering the proposed license area without permission and consultation with traditional owners. Mr Woodley deposes that the Yindjibarndi people need to be involved in showing Manjarnhu (strangers) who wish to conduct activities on Yindjibarndi country what they can and cannot do (MW Aff, para 17). Mr Woodley deposes that ‘looking after our significant sites and areas in Yindjibarndi country is a very important community activity that many Yindjibarndi people spend a lot of time doing. If this community activity is not done or is done badly then bad things can happen to the people, who, under our Law, are meant to look after those sites and areas’ (MW Aff, para 18). The evidence is tendered as corroboration of the fact that the areas and sites identified in the evidence are of particular significance to the native title party in accordance with their traditions.

8. I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed, that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). 

9. The grantee party indicates in its statement of contentions lodged with the Tribunal on the 17 September, 2010, that it will carry out its work program in compliance with all legislative requirements, including the AHA and Mining Act, and will comply with all conditions imposed by the Government party.

10. The contentions of the grantee party advise, at paragraph 34, that a detailed outline of the first two years of the proposed exploration programme has been provided for the consideration of the native title party. The contentions submit that:

    ‘(a)An assessment of the known registered sites and commitment that no exploration activities are planned in the vicinity of the registered sites. Furthermore, the Grantee party has voluntarily agreed to impose a 200 metre buffer in respect of those sites for no other buffer is imposed;

    (b)examples of the type of exploration activities that would occur during the various phases of exploration; including soil sampling, magnetometer survey and drilling techniques together with what would comprise a normal temporary exploration camp;

    (c)an example of the type of rehabilitation complete by the Grantee party;

    (d)A brief overview of the topography, vegetation and previous ground disturbance as a result of past exploration activities.’

11. The grantee party also indicates that, on the 23 April, 2010, it offered to enter into the preferred Land Access & Heritage Agreement with Yindjibarndi Aboriginal Corporation which incorporated several amendments (which the contentions of the grantee party outline at paragraph 17). The grantee party further contends that ‘each of the activities carried out by the native title party in accordance with ‘looking after country’ is compatible with the expedited procedure applying. In other words, there is nothing preventing the native title party from monitoring and discussing the activities of the grantee party (see paragraph 15 of the contentions of the grantee party).

12. The grantee party says that the exploration targets are nickel, copper and platinum group metals (see exhibit A of its contentions). It is anticipated non-ground-disturbing activities, including ground reconnaissance mapping, geochemical sampling of rocks and ground geophysical activities, may occur in the first year. Following this, it is further anticipated ground and/or geophysics testing and subsequently drill testing may occur within the proposed licence. While the rights given under an exploration licence may not be exercised to their fullest extent, the evidence establishes that there may be ground-disturbing activity, with the potential to interfere with significant Aboriginal sites.

13. There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. Its contentions reveal an awareness of its obligations in this respect. The fact that the grantee party was prepared to enter into a heritage agreement is a relevant factor which indicates the grantee party’s awareness of the need to avoid interference with sites of particular significance.

14. I note the native title party made the following contentions in relation to the Tribunal’s application of the ‘presumption of regularity’:

    The Presumption of Regularity

22The Native Title Party disputes the contention, in paragraph 9 of the State’s Contentions, regarding the “presumption of regularity”, by which the Government Party contends, “it may be presumed that a grantee party will act lawfully in exercising rights given under an exploration licence”. The Native Title Party assumes, for present purposes, that the words “act lawfully” refer to future compliance, by a grantee party, with any conditions imposed on the grant, including environmental conditions and conditions regarding places and objects that are subject to the provisions of the AHA.

15Although the Tribunal consistently refers to and relies upon the “presumption of regularity”, when making a predictive assessment (under NTA s. 237) about the future behaviour of a grantee party; and, in so doing, cites as authority earlier Tribunal cases such as Western Australia v Smith (2000) 163 FLR 32 (‘Smith’), Young v Western Australia (2001) 164 FLR 1 at [56] (“Young”); and Silver v Northern Territory of Australia (2002) 169 FLR 1 at [24] (‘Silver’), the Tribunal, in those earlier cases, does not cite any judicial authority in support of the application of that presumption to the Tribunal’s inquiry. Neither does the Government Party in the State’s Contentions.

16This approach appears to have commenced in Smith, where Deputy President Franklyn held (at [51]):

... in my opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the Grantee would act in breach of the conditions (emphasis added).

17Having declined to make such an improper assumption, Deputy President Franklyn then, without reference to any judicial authority, elevated the contrary assumption (that a grantee party will never breach the conditions of a grant) to the status of a presumption of law by holding (at [52]) that “the presumption of regularity must prevail in the absence of evidence to the contrary” (emphasis added).

18The Native Title Party contends that the presumption of regularity cannot properly be applied to the Tribunal’s inquiry in respect of the future behaviour of a grantee party

19In Kingham v Sutton[4], the Full Federal Court of the Federal Court (at [58]) held:

[4] [2002] FCAFC 107, per Wilcox and Marshall JJ.

The essence of the presumption of regularity is that “official appointments were duly made and that official acts were duly performed”, see G. D Nokes, An Introduction to Evidence, 2^nd ed 1956 at 64.

20The Full Court continued (at [59]):

As Wigmore, in Evidence in Trials at Common Law Vol 9, reveals at para 2534, the presumption of regularity is:

“... more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules”.
It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured evidence; second, that it involves a mere formality or detail of required procedure in the routine of a litigation or of a public offer’s action; third, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability.”

21The issue in question before the Full Court[5] was whether in circumstances where 458 union members had sworn affidavits attesting they had signed a petition for a referendum, the Court at first instance should have applied the presumption of regularity in respect of the personal identities of a further 1,257 signatures on the petition.

[5] Ibid., at [54]-[55]

22The Full Court was of the view that only the first of the four conditions was relevant to the issue in that case and that the better view of that was:

the issue was capable, and remains capable, of being resolved by evidence which was procured in respect of the 458 people who were in the same position as the 1257 whose signatures are in dispute.

23In so doing the Full Court (at [63]) applied what was said in Morris v Kanssen[6] about the presumption of regularity; namely:

[6] [1946] AC 459, per Lord Simonds at 475

“It is a rule designed for the protection of those who are entitled to assume, just because they cannot know, that the person with whom they deal has the authority which he claims. This is clearly shown by the fact that the rule cannot be involved if the condition is no longer satisfied, that is, if he who would invoke it is put upon his inquires. He cannot presume in his own favour that things are rightly done if inquiry that he ought to make would tell them that they were wrongly done.

1. This is why the operation of the rule is generally limited to cases concerning the exercise of power by public officials. As was pointed out by McHugh JA, in Minister for Natural Resources v New South Wales Aboriginal Land Council[7]:

   [7] (1987) 9 NSWLR 154, (at 164), cited with approval by Buchanan J, in Phosphate Resources Limited v Minister for the Environment and the Arts [2002] FCA 1521, at [160]

   ‘Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’

   25The Native Title Party contents that the question, in the present proceedings, as to whether a grantee party will act lawfully and comply with all the conditions attached to the grant of the Proposed Tenement, is not one to which the presumption of regularity can properly be applied, for the following reasons:

   25.1    the issue does not concern the exercise of power by a public official;

   25.2    it does not concern past events;

   25.3    it does not involve a mere formality or detail of required procedure;

   25.4    it does not involve the security of apparently vested rights; and

   25.5    there are no circumstances that add some element of probability.

26In respect of the last condition, the Native Title Party contends there is cogent evidence, which demonstrates that the public officials responsible for enforcing compliance with environmental conditions and Aboriginal heritage conditions are, in fact, incapable of enforcing compliance by grantee parties.

27In relation to the enforcement of environmental conditions, a press release issued on 13 November 2007 by then Resource Minister, Francis Logan, states:

Resources Minister Francis Logan has called on mining companies to clean up their act of face losing their Tenement, after an examination of exploration sites uncovered widespread environmental and regulatory breaches.

Mr Logan said recent inspections of 56 different exploration sites had found 46 that had breached exploration tenement conditions – an 82 per cent failure rate.

The Minister said the breaches included uncapped drill holes, the construction of exploration camps without approval, excessive clearing for drill pads and access tracks and a failure to rehabilitate these areas.

28 No evidence has since come to light to suggest that this situation has changed.

29The public officials, charged with enforcing compliance with Aboriginal heritage conditions are those in the Department of Indigenous Affairs (“DIA”). However, the DIA’s submissions to the Functional Review Committee established to review the DIA’s performance[8], in 2006, stated (at 56-57)

[8] Submission by the Department of Indigenous Affairs to the Functional Review Committee Established

“Although in 2003 Parliament substantially increased penalties for damaging sites under the AHA, DIA’s capacity to respond to the priority placed on heritage protection is limited by lack of resources and on ground staff. Criticism is directed at DIA’s perceived failure to protect Aboriginal sites and to prosecute those who damage or destroy sites.

...

The imbalance between the resources required to protect Aboriginal sites in WA and the resources at DIA’s disposal are illustrated by the duties of DIA’s Senior Heritage Officer based in Broome. This officer is responsible for all heritage matters rising in the Kimberley, Pilbara and parts of the Murchison regions....

Similarly, although DIA attempts to monitor compliance by land owners and developers with the conditions of the consent given by the Minister under section 18 of the AHA, financial and human resources are focussed on the government priority of progressing applications through the section 18 development approvals process. For example, new funding for DIA through the Keating Review process will enable the DIA employ to additional heritage staff, but these officers will be devoted to supporting the development process....

The results of the DIA’s inability to effectively monitor or enforce the State’s heritage protection regime is:....

·   DIA is seen as an agency which facilitates the destruction of Aboriginal sites by developers and as incapable of effectively monitoring the conduct of developers;

...; and

·   The risk that important heritage sites may be damaged or destroyed.”

30Again, no evidence has since emerged to suggest that this situation has changed.

31 In light of the above contention, the Native Title Party submits that the Government Party cannot properly contend that the presumption of regularity has any part to play in the Tribunal’s inquiry [numbering as in original].

However, since I have found that the expedited procedure is not attracted, regardless of whether or not such a presumption applies, and despite the Government party’s regulatory regime, it is not necessary to further consider the contentions on this point in this matter.

1. Weighing all these factors, and particularly the nature and extent of the sites of particular significance which have been identified, and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). While the grantee party indicates awareness of registered sites in the proposed licence area, unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them. This is a case where the potentially site rich nature of the proposed licence area means there is a real risk of interference, despite the best intentions of the grantee party meeting its own standards of compliance with the site protection regime based on the AHA, i.e., it is a case where the regulatory regime is not adequate to prevent the likelihood of interference with sites of particular significance to the native title party in accordance with their traditions.

2. The native title party questioned the adequacy of the State’s regulatory regime, including the effectiveness of the AHA. It is not necessary to address this contention further, given my comments above.

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

1. No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).

Determination

1. The determination of the Tribunal is that the grant of exploration licence E47/2158 to Mithril Resources Ltd is not an act attracting the expedited procedure.

Neville MacPherson
Member
16 December 2010

3 References, variously, throughout this determination to ‘John Sosso’ and/or to ‘Deputy President Sosso’ are references to one in the same person, and are to be so read.