NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of Mullewa Wadjari v FMG Resources Pty Ltd and Others, [2015] NNTTA 9 (12 March 2015)

Application Nos:	WO2013/0755 and WO2013/1003

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

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IN THE MATTER of an inquiry into two expedited procedure objection applications

Leedham Papertalk and Others on behalf of Mullewa Wadjari (WC1996/093) (native title party)

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The State of Western Australia (Government party)

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Maincoast Pty Ltd (first grantee party)

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FMG Resources Pty Ltd (second grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:	Ms H Shurven, Member
Place:	Perth
Date:	12 March 2015

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

Legislation:	Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Acts Interpretation Act 1901 (Cth), s 36(2)
Land Act 1933 (WA), ss 31, 33
Racial Discrimination Act 1975 (Cth)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Waterways Conservation Act 1976 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA)
Country Areas Water Supply Act 1947 (WA)
Water Agencies (Powers) Act 1984 (WA)
Water Resources Legislation Amendment Act 2007 (WA)

Cases:	Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustas Nominees’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99, (‘Cheinmora v Heron Resources’)
Cheinmora & Ors v Striker Resources & Ors [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Harvey Murray and Others on behalf of the Yilka Native Title Claimants v Drew Griffin Money and Another [2011] NNTTA 91 (‘Murray v Money’)
Jack Dann v Western Australia [1997] FCA 332; (1997) 144 ALR 1 (‘Dann v Western Australia’)
Leedham Papertalk & Ors v State Resources Pty Ltd & Anor [2012] NNTTA 126, (‘Papertalk v State Resources’)
Leedham Papertalk & Ors v West Peak Iron Ltd & Anor [2012] NNTTA 108, (‘Papertalk v West Peak Iron’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tullock v Bushwin’)
Little and Others v Oriole Resources Pty Ltd [2005] FCA 506; (2005) 146 FLR 576, (‘Little v Oriole Resources’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Parker v Iron Duyfken’)
Maureen Young on behalf of the Ngadju People v South Coast Metals Pty Ltd [2001] NNTTA 42 (‘Young v South Coast Metals’)
Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) RNTBC & Ors v FMG Pilbara Pty Ltd & Anor [2015] NNTTA 4, ('Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara’)
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108 (‘Cooke v Dioro Exploration’)
Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Nyikina & Mangala v Backreef Oil’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas v Northern Territory’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442, (‘Smith v Western Australia’)
Terry Cornwall & Ors v Western Australia & Ors [1997] NNTTA 47 (‘Cornwall v Western Australia’)
Ward & Ors v Western Australia & Ors [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557, (‘Ward v Western Australia’)
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; (2002) 191 ALR 1; (2002) 76 ALJR 1098 (‘Western Australia v Ward 1’)
Western Australia v Ward [1996] FCA 993; (1996) 70 FCR 265; (1996) 141 ALR 753 (‘Western Australia v Ward 2’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd & Anor [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the	Ms Lesleigh Bower, Corser & Corser
native title party:
Representatives of the	Ms Caitlin Brandstater, State Solicitor’s Office
Government party:	Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the	
grantee party: 	Mr Ken Green, Green Legal

REASONS FOR DETERMINATION
[1]	On 19 June 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/2596 to Maincoast Pty Ltd (‘the first grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act). The s 29 notice describes E70/2596 as comprising 70 graticular blocks (approximately 211.7039 square kilometres), located 46 kilometres north of Mullewa, in the City of Geraldton.
[2]	On 3 July 2013, the Government party gave notice under s 29 of the Act of its intention to grant exploration licence E59/1956 to FMG Resources Pty Ltd (‘the second grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act). The s 29 notice describes E59/1956 as comprising 10 graticular blocks (approximately 30.2624 square kilometres), located 55 kilometres north of Mullewa, in the City of Geraldton.
[3]	An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) within 4 months of the ‘notification 	day’ (see s 32(3) of the Act).  As explained by ss 32(3) and s 30(1)(a) and (b), the objection may be made by any registered native title claimant in respect of the relevant land or waters who is registered at four months from the notification day, provided the claim was filed before the end of three months from the notification day.
E70/2596
[4]	The notification day for E70/2596 was 19 June 2013.  The three month period for filing a native title claim was 19 September 2013.  The four month period for lodgement of objections was 19 October 2013, and by the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth), the closing date for lodgement became 21 October 2013, the next working day.

[5]	E70/2596 is overlapped as follows:
•	the Mullewa Wadjari native title claim (WC1996/093 – registered from 19 August 1996) by 100 per cent; 
•	the Widi Mob native title claim (WC1997/072 – registered from 12 December 2011) by 100 per cent; 
•	the Wajarri Yamatji native title claim (WC2004/010 – registered from 5 December 2005) by 91.55 per cent; and
•	the Amangu People’s native title claim (WC2004/002 – registered from 3 March 2005) by 8.345 per cent.
[6]	On 7 October 2013, the Mullewa Wadjari native title claim group made an expedited procedure objection application to the Tribunal in relation to E70/2596.  Both the Wajarri Yamatji and Amangu People native title claim groups also made expedited procedure objection applications to the Tribunal on 18 October 2013, but both applications were withdrawn on 11 June 2014.  No information was provided as to why those objections were withdrawn.  No expedited procedure objection application was made by the Widi Mob native title claim group and no other native title claim was filed in respect of E70/2596. As such, the Mullewa Wadjari native title claim group became the ‘native title party’ for the purposes of the inquiry into the objection to the expedited procedure against E70/2596.
E59/1956
[7]	The notification day for E59/1956 was 3 July 2013.  The three month period for filing a native title claim was 3 October 2013.  The four month period for lodgement of objections was 3 November 2013, and by the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth), the closing date for lodgement became 4 November 2013, the next working day.
[8]	E59/1956 is wholly overlapped by the native title claims of the native title party, as well as the Wajarri Yamatji and the Widi Mob.
[9]	On 9 July 2013, the native title party made an expedited procedure objection application to the Tribunal in relation to E59/1956.  The Wajarri Yamatji native title claim group also made an expedited procedure objection application to the Tribunal on 31 October 2013, but this application was withdrawn on 11 June 2014.  No information was provided as to why that objection was withdrawn. No expedited procedure objection application was made by the Widi Mob native title claim group and no other native title claim was filed in respect of E59/1956. As such, the Mullewa Wadjari native title claim group is the native title party for the purposes of the inquiry into the objection to the expedited procedure against E59/1956.

The grantee parties
[10]	On 30 January 2004 Maincoast Pty Ltd (the first grantee party), and Fortescue Metals Group Ltd (‘FMGL’) on behalf of FMG Resources Pty Ltd (the second grantee party), entered into an agreement which requires the first grantee party to transfer E70/2596 to FMGL (the ultimate holding company of the second grantee party) upon grant, and appoints FMGL as the attorney of the first grantee party for the purpose of achieving the grant of E70/2596.
[11]	Due to this agreement between FMGL and the first grantee party, the evidence presented by the first and second grantee parties in these matter's has been presented in conjunction, for both E70/2596 and E59/1956. Therefore, I will refer to E70/2596 and E59/1956 either singularly as needed, or together as ‘the proposed licences’.

Background
[12]	On 24 October 2013, I was appointed as the Member for the purposes of determining any inquiry in these matters.
[13]	Preliminary conferences were convened for E70/2596 on 5 November 2013 and for E59/1956 on 19 November 2013.  At both conferences the parties indicated they wished to negotiate agreements. 
[14]	At status conferences held on 5 March 2014 and 26 March 2014 for E70/2596, the native title party and first grantee party advised they were in the process of negotiating an agreement.  At the status conference on 30 April 2014, the first grantee party requested the Tribunal make a determination in relation to the matter for E70/2596. On the same day, I set directions for that matter to proceed to an inquiry. 
[15]	At a status conference on 19 March 2014 for E59/1956, the second grantee party requested the Tribunal make a determination in relation to the matter for E59/1956.  On the same day, I set directions for that matter to proceed to inquiry.

E70/2596 compliance
[16]	In relation to E70/2596 compliance with directions (as amended by party request on 26 June 2014), parties provided the following submissions and evidence: 
•	Government party initial evidence on 14 May 2014 through the Department of Mines and Petroleum (‘DMP’); 
•	native title party contentions and evidence on 11 June 2014 (‘NTP Contentions’) including affidavits from Mr Leedham Papertalk affirmed on 9 June 2014, and Mr Douglas James Comeagain affirmed on 11 June 2014;
•	first and second grantee parties’ contentions and evidence on 1 July 2014 (‘GP Contentions’) including the affidavit of Mr Thomas James Weaver affirmed 30 June 2014; 
•	Government party contentions (through the State Solicitor's Office, (‘SSO’)) on 8 July 2014 (‘SSO E70/2596 Contentions’);
•	native title party contentions in reply on 30 July 2014 (‘NTP Reply’) as outlined at [18]-[20] below; and
•	grantee party contentions in reply dated 1 September 2014 ('GP reply') as outlined at [18]-[20] below.

E59/1956 compliance
[17]	In relation to E59/1956 compliance with directions (as amended by party request on 26 June 2014), parties provided the following submissions and evidence: 
•	Government party initial evidence on 1 April 2014 through the Department of Mines and Petroleum (‘DMP’); 
•	native title party contentions and evidence on 7 May 2014 (‘NTP Contentions’); 
•	the grantee parties contentions and evidence on 1 July 2014 (‘GP Contentions’); 
•	Government party contentions (through the SSO) on 14 July 2014 (‘SSO E59/1956 Contentions’);
•	native title party contentions in reply on 30 July 2014 (‘NTP Reply’) as outlined at [18]-[20] below; and
•	grantee party contentions in reply dated 1 September 2014 ('GP Reply') as outlined at [18]-[20] below.

Further compliance in both matters
[18]	The NTP Reply to the GP Contentions and SSO Contentions pertained to both E70/2596 and E59/1956.  Within those contentions and by way of letter and email to parties and the Tribunal on 30 July and 1 August 2015, the native title party expressed concern about giving further evidence by affidavit and a desire to present oral evidence on-country, or to provide affidavit evidence subject to the Tribunal making directions to preserve its confidentiality pursuant to s 155 of the Act.  The grantee parties and the Government party expressed their opposition to the native title party presenting further evidence, whether orally on-country or by further affidavit the subject of s 155 confidentiality directions.  
[19]	A listing hearing was convened on 7 August 2014 to hear the parties further in relation to the request from the native title party to provide further evidence, and the opposition to that request.  At my request, on 11 August 2014 the native title party provided a copy of the proposed further affidavit evidence of Mr Leedham Papertalk it wished to include in the NTP Reply to the Tribunal, together with a draft of the       s 155 confidentiality directions it wished the Tribunal to make, for my consideration.  The affidavit evidence was given in support of the objection to both proposed licences. I concluded it was appropriate to accept the evidence, and to impose confidentiality orders on the affidavit evidence due to culturally sensitive content.  I note this affidavit was submitted only in relation to E70/2596. On 18 August 2014, I made confidentiality directions pursuant to s 155 of the Act in relation to certain paragraphs of that further affidavit evidence of Mr Papertalk, and provided that the other parties could lodge responses to the native title party reply and evidence by close of business on 1 September 2014.  
[20]	The grantee party provided its response to the NTP Reply on 1 September 2014 (‘GP Reply’), together with the undated and unsworn affidavit of Mr Peter Stanley Symonds, being the sole director of the first grantee party. An identical sworn version of the affidavit was provided on 15 October, 2014. No party objected to this sworn duplicate being provided and I accepted the evidence. Mr Symonds affidavit applied to both proposed licences. The Government party did not lodge any response to the NTP Reply.
[21]	On 28 August, 2014, the native title party wrote to all parties noting a member of the native title party had passed away, was referred to in the affidavit evidence of Mr Papertalk, and requested that person's name to be redacted from the affidavit evidence. No party objected to this request, and the name was redacted.
[22]	The native title party has not pursued its request for an on-country oral hearing. I have considered these matters and I believe they can be adequately determined ‘on the papers’ in accordance with s 151(2) of the Act.
[23]	A map was generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 14 October 2014 for comment. No party objected to the Tribunal’s use of the map. 

Legal principles
[24]	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 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.
[25]	In relation to the legal principles to be applied in this matter, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21]. These principles were recently endorsed by McKerracher J in the Federal Court decision of FMG Pilbara v Yindjibarndi Aboriginal Corporation.

Evidence in relation to the proposed acts
[26]	The Government party provided the following documents relating to the proposed licences: 
•	DMP Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licences;
•	Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’);
•	Copies of the proposed licence applications;
•	Draft Tenement Endorsements and Conditions Extracts; and
•	DMP Tengraph Quick Appraisals detailing the land tenure, current and historical mining tenements, native title areas, relevant services, and other features within the proposed licences (‘DMP Quick Appraisals’).
E70/2596
[27]	The Quick Appraisal for E70/2596 establishes the underlying land tenure of this proposed licence to be:
•	Crown Reserve 9701 for the De Grey Mullewa Stock Route at 6.5 per cent;
•	Crown Reserve 11809 for a Trigonometrical Station at less than 0.1 per cent; 
•	Crown Reserve 33466 for the Conservation of Flora and Fauna at 0.6 per cent;
•	Crown Reserve 18020 for Water at less than 0.1 per cent; 
•	Crown Reserve 19392 for a Public Utility at 0.3 per cent;
•	Crown Reserve 11808 for a Trigonometrical Station at less than 0.1 per cent;
•	Vacant Crown Land at 4.1 per cent;
•	Vacant Crown Land (No. 12695) at 1.2 per cent;
•	General Lease J271217 at 0.6 per cent;
•	Pastoral Lease 3114/900 (Wandina) at 89.7 per cent;
•	Private Land CG 6376 at 0.5 per cent;
•	Private Land CG 7624 at 0.6 per cent; and
•	Road Reserve at less than 0.1 per cent.
[28]	The Tribunal’s investigations revealed that Crown Reserve 33466 was created pursuant to section 31 of the Land Act 1933 (WA) as an A Class Reserve and was gazetted on 11 July 1975.  It was vested in the Western Australian Wild Life Authority under section 33 of the Land Act 1933 (WA).
[29]	The impact on native title of the creation of reserves, and their vesting on native title, was addressed by Gleeson CJ, Gaudron, Gummow and Hayne JJ of the High Court in Western Australia v Ward 1.  Their Honours determined (at [219]) that the act of creating reserves under section 31 of the Land Act 1933 did not, in itself, extinguish native title.  Their Honours went on to address the impact of the vesting of such a reserve under section 33 of the Land Act 1933, where they said (at [249]):
It follows from what has been said earlier that, because the vesting under s33 of the Land Act 1933 of a reserve in a body or person vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, rights are vested in that body or person which are inconsistent with the continued existence of any native title rights or interests to the land.  Accordingly, if, pursuant to the Land Act 1933, a reserve was vested in a body or person before the RDA [Racial Discrimination Act 1975 (Cth)] came into operation, native title was extinguished by that vesting.
[30]	Their Honours then went on to say (at [253]) that vesting a reserve under section 33 of the Land Act 1933 after enactment of the Racial Discrimination Act 1975 would be valid, but the Racial Discrimination Act 1975 would supply to native title holders a right of compensation for that which is lost upon vesting.
[31]	It becomes clear that upon vesting of Reserve 33466 in the Western Australian Wild Life Authority under section 33 of the Land Act 1933, the native title rights and interests in the underlying land were extinguished.  Therefore, the Tribunal has no jurisdiction to make a determination in relation to the land underlying Reserve 33466.
[32]	E70/2596 is currently subject to mineral tenure including:
•	two pending exploration licences overlapping at 2.9 and 100 per cent respectively;
•	two general purpose leases overlapping at 0.2 and 0.7 per cent respectively;
•	two miscellaneous licences overlapping at 3.2 and 0.1 per cent respectively; and
•	four mining leases overlapping between 1.9 and 3.2 per cent.
The mining, miscellaneous and general purpose leases are all held by Mount Gibson Mining Limited (‘the Mount Gibson tenements’), and further comment is made about the effect of these leases at [66] onwards of this decision.  Evidence from the native title party suggests that those tenements have been subject to mining activities by Mount Gibson Mining Limited.  The Government party, through DMP, has confirmed to the Tribunal and parties that on the death of these underlying tenements, the holder of the exploration licence for E70/2596 'can apply to have the relinquished ground amalgamated into the Exploration Licence...at which point the amalgamation application will be sent through the expedited procedure'.  As such, there is no automatic right for the grantee parties in the current matter to be granted the ground underlying these tenements, and they would need to go through a fresh s 29 process, and then Tribunal arbitration if parties were unable to reach agreement in that fresh     s 29 process.  E70/2596 has previously been subject to the following mineral tenure:
•	eight surrendered exploration licences existing between 1982 and 2003, overlapping between 0.1 per cent and 93.8 per cent; and
•	one cancelled temporary reserve existing between 1962 and 1992, overlapping by 61.1 per cent.
[33]	The Quick Appraisal outlines the following services located on E70/2596:
•	one unspecified/unknown (undeveloped) deposit (Nunierra Range);
•	four open pit (shut) mines (Tallering Peak T1, Tallering Pit T6A+B (incl T3), Tallering Peak T4 and Tallering Peak T2);
•	one prospect or undeveloped drill hole (North Ridge);
•	32 tracks;
•	one aircraft landing ground;
•	one airfield runway; and
•	three fence lines.

[34]	The report from the DAA Database shows the following registered Aboriginal sites on E70/2596:
•	Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access);
•	Greenough River (site ID 24761, mythological, open access, no gender restrictions);
•	Bangemall Creek-A-1001 (site ID 30060, artefacts/scatter, open access, no gender restrictions);
•	FL01_12001 (site ID 31721, artefacts/scatter, open access, no gender restrictions);
•	FL01_12002 (site ID 31722, artefacts/scatter, open access, no gender restrictions);
•	FL01_12003 (site ID 31723, artefacts/scatter, open access, no gender restrictions);
•	FL01_12004 (site ID 31724, artefacts/scatter, open access, no gender restrictions);
•	FL01_12005 (site ID 31725, artefacts/scatter, open access, no gender restrictions); and
•	FL01_12006 (site ID 31726, artefacts/scatter, quarry, open access, no gender restrictions).

[35]	The report from the DAA Database also shows the following 'other heritage places' located on E70/2596:
•	Tallering Rockshelter (site ID 19840, artefacts/scatter, rockshelter, open access, no gender restrictions);
•	TPAS – p68 (site ID 26584, artefacts/scatter, open access, no gender restrictions);
•	TPAS – 01 (site ID 26585, artefacts/scatter, open access, no gender restrictions); and
•	TP Isolated Find pTP017s (site ID 26586, no type description, open access, no gender restrictions).

[36]	There do not appear to be any Aboriginal communities within the proposed licences, however, the Aboriginal community of Wandanooka is approximately 22.75 kilometres south of E70/2596. 
[37]	The Draft Tenement Endorsement and Conditions Extract indicates E70/2596 will be subject to the standard four conditions (1-4) imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Bushwin [11]-[12]), and a further eleven conditions. These fifteen conditions are:
1.	All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

2.	All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.

3.	All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

4.	Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

5.	The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made; prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.

6.	The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
•	the grant of the licence; or
•	registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

7.	The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing mining on Trigonometrical Reserves 11809, 11808 and Water Reserve 18020.

8.	The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of Minister for Environment, before entering or commencing any prospecting or exploration activity on Conservation of Flora and Fauna Reserve 33466.

9.	The rights of ingress to and egress from Miscellaneous Licence 70/60 and 70/69 being at all times preserved to the licence and no interference with the purpose or installations connected to the licence.

10.	No interference with Geodetic Survey Station R 394, R 394T, NUNIERRA, YAL96, HY120, HY 121T, HY 121 and YAL143 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

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

12.	No mining on or under a strip of land 100 metres wide with the proposed railway line easement as the centreline and no materials being deposited or machinery or building being erected on such strip.

13.	Blasting operations being controlled so that no damage or injury can be caused by fly rock, concussion, vibration or other means.

14.	No use of the Mine private haulroad at any time for any purpose without the written approval of the Mt [Mount] Gibson Mining Ltd executive.

Consent to mine on De Grey Mullewa Stock Route Reserve 9701 given subject to the following:
15.	No mining operations being carried out on De Grey Mullewa Stock Route Reserve 9701 which restrict the use of the reserve.

[38]	The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted for E70/2596:
1.	The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

2.	The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.	The Licensee’s attention is drawn to the provisions of the:
•	Water Conservation Act, 1976
•	Rights in Water and Irrigation Act, 1914
•	Metropolitan Water Supply, Sewerage and Drainage Act, 1909
•	Country Areas Water Supply Act, 1947
•	Water Agencies (Powers) Act 1984
•	Water Resources Legislation Amendment Act 2007

4.	The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

5.	The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.	The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:
7.	Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
•	 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
•	 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
8.	The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.

9.	All activities to be undertaken with minimal disturbance to riparian vegetation.

10.	No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

11.	Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:
12.	The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

E59/1956

[39]	The Quick Appraisal for E59/1956 establishes the underlying land tenure of the proposed licence to include:
•	Pastoral Lease 3114/900 (Wandina) at 99.5 per cent, and
•	Road Reserve (Carnarvon Mullewa Road) at less than 0.1 per cent. 
[40]	E59/1956 is currently subject to no overlapping mineral tenure, but has previously been subject to the following mineral tenure:
•	eleven surrendered or forfeited exploration licences existing between 1982 and 2011, overlapping between 0.4 per cent and 100 per cent; 
•	eight surrendered mineral claims existing between 1974 and 1975, overlapping between less than 0.1 per cent and 4 per cent, and
•	one cancelled temporary reserve existing between 1962 and 1992, overlapping by less than 0.1 per cent.
[41]	The Quick Appraisal outlines the following services located on E59/1956:
•	one prospect or undeveloped drill hole (Tallering/Royal);
•	one geodetic survey station (HY40);
•	two minor roads (including the Mullewa Carnarvon Road);
•	nine tracks;
•	two fence lines; and
•	one well/bore with windmill (Deep Well).

[42]	The report from the DAA Database shows there is one registered site located in E59/1956 (Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access)) and no ‘other heritage places’.  This site reference refers to the overlap of a relatively small part of the Tallering Peak buffer zone, with E59/1956.  The remainder of the buffer zone falls almost entirely within E70/2596.
[43]	The Draft Tenement Endorsement and Conditions Extract indicates E59/1956 will be subject to the standard four conditions (1-4) imposed on the grant of all exploration and prospecting licences in Western Australia (as referred to at [37] of this decision), and a further three conditions which are:
5.	The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made; prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.

6.	The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
•	the grant of the licence; or
•	registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

7.	No interference with Geodetic Survey Station HY 40 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

[44]	The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) for E59/1956 are also noted:
1.	The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

2.	The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

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

In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
4.	The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.

5.	All activities to be undertaken with minimal disturbance to riparian vegetation.

6.	No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

7.	Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:
8.	The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
9.	The Licensee’s attention is drawn to the provisions of the:
•	Water Conservation Act, 1976
•	Rights in Water and Irrigation Act, 1914
•	Metropolitan Water Supply, Sewerage and Drainage Act, 1909
•	Country Areas Water Supply Act, 1947
•	Water Agencies (Powers) Act 1984
•	Water Resources Legislation Amendment Act 2007

10.	The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

11.	The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
12.	The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:
13.	Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
•	 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
•	 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

Native title party contentions and evidence
s 237 (a)
[45]	The native title party’s contentions (at 9-27) are substantially the same (with some minor variations) in relation to community and social activities conducted on both of the proposed licences, so I will address them collectively.
[46]	They refer (at 10) to the native title party’s regular four-day ‘hunting weekends’ within the proposed licence, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo. 
[47]	Both sets of contentions are supported by the affidavits of Mr Leedham Papertalk and Mr Douglas Comeagain. As noted earlier in this decision, in relation to E59/1956, Mr Papertalk and Mr Comeagain affirmed their affidavits on 5 May 2014.  In relation to E70/2596, Mr Papertalk affirmed his affidavit on 9 June 2014 and Mr Comeagain affirmed his on 11 June 2014.
[48]	Mr Papertalk deposes that he is a senior initiated man and has the right to speak on behalf of the native title party (at 3 of the E59/1956 affidavit and at 2 of the E70/2596 affidavit).  He attests he is familiar with the proposed licences and visits the areas on a regular basis (at 4-5 of the E59/1956 affidavit and at 3-4 of the E70/2596 affidavit).  Mr Papertalk is a named applicant of the native title party and I accept that he has authority to give evidence in this matter.  
[49]	Mr Comeagain also deposes that he is a senior initiated man and has the right to speak on behalf of the native title party (at 3 of the E59/1956 affidavit and at 2 of the E70/2596 affidavit).  He attests he is familiar with the proposed licences (at 4 of the E59/1956 affidavit and at 3-5 of the E70/2596 affidavit).  Mr Comeagain is a named applicant of the native title party and I accept that he has authority to give evidence in this matter.
[50]	The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:
•	The hunting weekends involve activities such as foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children (at 11, also at 12 of Mr Papertalk’s E59/1956 affidavit and at 11 of Mr Papertalk’s E70/2596 affidavit);
•	The hunting weekends occur on an almost weekly basis (if weather permits). Although known as ‘hunting weekends’ amongst the Mullewa Wadjari community, the hunting trips do not always occur on the same days of the week nor do they always include Saturday and Sunday (at 13, also at 13 of Mr Papertalk’s E59/1956 affidavit and at 12 of Mr Papertalk’s E70/2596 Affidavit);
•	Generally around 90 per cent of the Mullewa Wadjari community members attend the weekly hunting weekends, which usually amount to more than 100 people travelling on country in more than twenty 4WD vehicles.  The native title party encourages a high child to adult ratio on these hunting weekends because one of the important objectives is to educate the children about the native title party’s customs and traditions (at 13, also at 14-16 of Mr Papertalk’s E59/1956 affidavit and at 13-15 of Mr Papertalk’s E70/2596 affidavit);
•	In addition to the community-wide hunting weekends, individual members and families of the native title party also regularly travel within and across the proposed licences for hunting and gathering, foraging, fishing and camping purposes (at 14, also at 17 of Mr Papertalk’s E59/1956 affidavit and at 16 of Mr Papertalk’s E70/2596 affidavit);
•	During the hunting weekends, the community members hunt for native fauna such as kangaroos, emus, wild turkeys, goannas, porcupines, blue tongue lizards and snakes. Occasionally, the members also hunt non-native species such as goats and rabbits (at 15, also at 18 of Mr Papertalk’s E59/1956 affidavit and at 17 of Mr Papertalk’s E70/2596 affidavit);
•	A large proportion of the meats and foods gained from the hunting weekend are brought back to the Mullewa Wadjari community where they are shared amongst the members, including those who could not attend the hunting trip (at 16, also at 19 of Mr Papertalk’s E59/1956 affidavit and at 18 of  Mr Papertalk’s E70/2596 affidavit); 
•	Hunted meats are also used to trade for commodities such as petrol and diesel which is used by members of the community (at 17, also at 21 of Mr Papertalk’s E59/1956 affidavit and at 20 of Mr Papertalk’s E70/2596 affidavit);
•	The proposed licences are  also known to the Mullewa Wadjari People as being 'rich in bush tucker', including: 
•	gogola (small, green pod shaped fruit, which is very sweet);
•	jalga (bean like vegetable which can be eaten raw or cooked); and
•	the sweet sap from the Bimba trees ‘which are especially prevalent in the tenement area’,
(at 18-19, also at 22 of Mr Papertalk’s E59/1956 affidavit and at 21 of Mr Papertalk’s E70/2596 affidavit).
[51]	Contentions outline that ‘the seeds of the jalga are high in nutrients and the Mullewa Wadjari People collect them by the bag-full from within the proposed licence.  If the bush tucker is in season, then members of Mullewa Wadjari will visit the proposed licences ‘on almost a weekly basis’ to collect it’ (at 19-20, also at 23-24 of Mr Papertalk’s E59/1956 affidavit and at 22-23 of Mr Papertalk’s E70/2596 affidavit).
[52]	Contentions also state that ‘During the hunting weekends, adults within the Native Title Party will teach the children traditional knowledge’ (including travelling to significant sites, boundaries of culturally restricted areas, location of bush medicine, food and water, cooking techniques, use of tools, reading the sky, traditional language and culture, dreamtime stories, the proper use of tools for hunting and cooking, and maintaining a balance between traditional and western lifestyles) (at 21, also at 25 of Mr Papertalk’s E59/1956 affidavit and at 24 of Mr Papertalk’s E70/2596 affidavit).
[53]	Mr Comeagain deposes (at 13 of his E70/2596 affidavit), that younger members of the native title party also hunt and camp around Tallering Peak. 
[54]	The native title party also provides contentions and evidence regarding the native title party’s worship at Tallering Peak and old law grounds on the proposed licences:
•	Members of the native title party 'still worship at Tallering Peak' and have worshipped in the past at old law grounds situated within the proposed licences (at 23, also at 32 of Mr Papertalk’s E59/1956 affidavit and at 31 of Mr Papertalk’s E70/2596 affidavit);
•	Members of the native title party have a strong spiritual connection with Tallering Peak as they believe the spirits of their ancestors, in particular medicine men and initiated law men, reside there (at 28 and 30 of Mr Papertalk’s E59/1956 affidavit and at 27 and 29 of Mr Papertalk’s E70/2596 affidavit, also at 11 and 14 of Mr Comeagain’s E70/2596 affidavit) - Mr Papertalk also refers to special activities which occurred on part of the proposed licence (at 8-13), and these are noted and covered by the confidentiality orders.
•	Mr Comeagain deposes (at 13 of his E59/1956 affidavit and at 14 of his E70/2596 affidavit) that he worships at special places around Tallering Peak, including places where the spirits of the native title party’s ancestors reside, and at places where the important mythical snake (Bimbara) resides (one of which is referred to in Mr Papertalk's Reply affidavit and which is covered by confidentiality orders);
•	Mr Comeagain states that the old law grounds in the proposed licences are not now used for initiations or other big ceremonies, but that senior law men from other groups in Western Australia have requested the native title party reopen the law grounds to use for ceremonies once again (at 16 of Mr Comeagain’s E59/1956 affidavit and at 17 of Mr Comeagain’s E70/2596 affidavit);
•	Mr Comeagain deposes that he and other senior initiated men of the native title party 'still worship at special places located around Tallering Peak' (at 14 of Mr Comeagain's E70/2596 affidavit and see also 13 of his E59/1956 affidavit).  He also deposes they used the old law grounds in the proposed licences in the past (at 23 of Mr Comeagain’s E59/1956 affidavit and at 24 of Mr Comeagain’s E70/2596 affidavit).
[55]	The native title party contend (at 25-26) that if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed licences, there is a real chance or risk that such activities will interfere directly with the carrying on of the native title party’s community and social activities, in particular:
•	hunting, gathering, fishing, camping and the teaching of laws and customs to children;
•	the balance of wildlife and food sources around the proposed licences which will directly interfere with hunting, foraging and fishing activities; 
•	worship activities currently undertaken by the native title party at various sites, including Tallering Peak and previously at the old law grounds situated within the proposed licences; and
•	if land on the proposed licences is damaged, the native title party will have to travel further out in order to hunt and gather food and resources.
s 237(b)
[56]	The contentions and evidence relating to E59/1956 and E70/2596 have much in common in relation to s 237(b).  However, I note that the contentions and evidence relating to registered sites on the proposed licences are specific to each proposed licence.  Where contentions and evidence are specific to one proposed licence or the other I will identify this as so, and where contentions and evidence are the same for the proposed licences I will address them together.
[57]	The contentions addressing sites or areas of particular significance specifically in relation to E59/1956 (outlined at 28-45), in summary state:
•	The Tallering Peak site (see [42]) is on the DAA Register (at 29);
•	The fact that a site is not recorded on the DAA Register does not mean that other sites do not exist on the proposed licence (at 31); and
[58]	The native title party state there are waterholes, campgrounds and law grounds in the proposed licence which are important to them (at 32, and also at 15 of Mr Comeagain’s E59/1956 affidavit) - in relation to this part of the contentions and evidence, it is very similar to that provided in relation to E70/2596 (as noted in dot point three at [59] below).  In broad terms then, these types of sites are attributed to both proposed licences.  The grantee party has taken issue with this, suggesting that the contentions and evidence should be given little weight because of this approach.  If that was all that had been said about sites and areas on the proposed licences, I would agree with the grantee party.  However, the native title party extend these broad characterisations with further particulars specific to each proposed licence (as outlined later throughout this decision).  As such, I accept the native title party's broad assertion that these types of sites and areas exist on both licences, but note that different levels of information and evidence are provided in relation to each area and site, and I give each the appropriate weight and consideration, as outlined further in this determination. 
[59]	The contentions addressing sites or areas of particular significance specifically in relation to E70/2596 (outlined at 28-46), in summary state:
•	There are nine sites on the DAA Register (at 29) (see [34] for the full list of registered sites);
•	The fact that the DAA Register does not record any additional sites does not mean that other sites do not exist on the proposed licence (at 31);
•	There are waterholes, campgrounds and law grounds in the proposed licence which are important to the native title party (at 32, and also at 16 of Mr Comeagain’s E59/1956 affidavit);
•	There is a cave located approximately five kilometres north of the Tallering Peak mine site which contains artefacts and was occupied by the native title party’s ancestors prior to European settlement (at 32, and also at 16 of Mr Comeagain’s E70/2596 affidavit) - I note these approximate co-ordinates place the cave near to the De Grey Mullewa Stock Route Stock Route which crosses through E70/2596 and along the northern boundary of E70/2596;
•	There exists a waterhole (which is named in Mr Papertalk's reply affidavit but which is covered by confidentiality orders) which is occupied by the Bimbara and spirits of the native title party’s ancestors which must not be entered by anyone except an initiated man (at 32, and also at 39 of Mr Papertalk’s E70/2596 affidavit); and
•	There are other places within E70/2596 that are known to Mr Papertalk and other initiated men of the native title party that they have not sought to have recorded, as registration of those sites would lead to unsuitable people visiting those sites (at 33, also at 42 of Mr Papertalk’s E70/2596 affidavit).
[60]	I note that there are also four ‘other heritage places’ listed on the DAA Register for E70/2596 (see [35]), however, the native title party contentions or evidence do not specifically refer to these.  I am not able to determine whether the sites mentioned by Mr Comeagain (see [59]) are the same as any of the registered sites or ‘other heritage places’ recorded on the DAA Register but, when looked at in conjunction with the volume of registered sites and ‘other heritage places’ recorded on the DAA Register for E70/2596, it lends credence to the native title party’s assertion that there are various sites which are important to the native title party on this proposed licence.
[61]	 In relation to Tallering Peak (as a broad geographical area, rather than just 'the peak' of that feature), the native title party provides the following contentions and evidence:
•	Tallering Peak is a site of particular significance to the native title party as they believe the spirits of their ancestors reside there, and the native title party still worship at Tallering Peak (at 33-34 of the E59/1956 Contentions and at 34-35 of the E70/2596 Contentions; see also 28 and 32 of Mr Papertalk’s E59/1956 affidavit and 27 and 31 of Mr Papertalk’s E70/2596 affidavit, as well as 11 of both Mr Comeagain’s affidavits);
•	Mr Papertalk's Reply affidavit (at 4-8) outlines that worship activities are highly confidential to initiated men within the native title party;
•	Mr Papertalk also attests that the native title party believe the spirits of medicine men and initiated law men return to Tallering Peak upon their deaths (at 30 of Mr Papertalk’s E59/1956 affidavit and at 29 of Mr Papertalk’s E70/2596 affidavit);
•	The stories associated with Tallering Peak are still passed on to younger generations within the native title party (at 35 of the E59/1956 Contentions and at 36 of the E70/2596 Contentions; see also 31 of Mr Papertalk’s E59/1956 affidavit and 30 of Mr Papertalk’s E70/2596 affidavit); and
•	Significant damage is alleged to have occurred to Tallering Peak (in the narrower sense of 'the peak' of that site) due to the activities of a ‘mining company’ (which is not either of the grantee parties), which has resulted in:
­	the native title party facing negative repercussions of their failure to protect the land (at 36(i) of the E59/1956 Contentions and at 37(i) of the E70/2596 Contentions);
­	the native title party belief that their community is likely to suffer more sickness and deaths if it doesn’t do everything possible to protect sacred sites in the proposed licences (at 36(ii) of the E59/1956 Contentions and at 37(ii) of the E70/2596 Contentions); and
­	the native title party being 'vehemently opposed' to the grantee parties being granted the proposed licences (at 36(iii) of the E59/1956 Contentions and at 37(iii) of the E70/2596 Contentions).
[62]	To give context to the native title party’s opposition to the grant of the proposed licences, in his affidavits Mr Papertalk provides more detailed evidence regarding the native title party’s experience of the alleged damage to Tallering Peak by the ‘mining company’ and the consequences the native title party believes have resulted, as follows:
•	The summit of Tallering Peak was drastically altered by the mining activities of the ‘mining company’ despite Tallering Peak being a registered site on the DAA Register at that time and the request from the native title party for the mining activities to cease (at 33-35 of Mr Papertalk’s E59/1956 affidavit and at 32-34 of Mr Papertalk’s E70/2596 affidavit);
•	This damaged the native title party’s spiritual connection to country and the dreamtime spirits (at 37 of Mr Papertalk’s E59/1956 affidavit and at 36 of Mr Papertalk’s E70/2596 affidavit); and
•	The native title party believes that the spirits are angry at them as traditional custodians for allowing the damage to occur, and believe some members of the native title party community died as a result, including some senior initiated men (at 38-39 of Mr Papertalk’s E59/1956 affidavit and at 37-38 of Mr Papertalk’s E70/2596 affidavit).
[63]	In relation to the significance of the waterholes, camps, law grounds and the presence of the Bimbara spirit on the proposed licences, the native title party contends:
•	Significant waterholes are located within the proposed licences (at 38 of the E59/1956 Contentions and at 39 of the E70/2596 Contentions), and Mr Comeagain deposes:
­	some exist approximately five kilometres north-east of Tallering Peak in an area known by the native title party as the Grass Flats, which is within E70/2596 (at 27 of Mr Comeagain’s E70/2596 affidavit); and
­	some exist approximately 10 kilometres north-east of Tallering Peak within E59/1956 (at 26 of Mr Comeagain’s E59/1956 affidavit);
•	The waterholes are of particular significance to the native title party as they believe they contain the spirits of their ancestors and are surrounded by ancestral campsites (at 39 of the E59/1956 Contentions and at 40 of the E70/2596 Contentions; see also 26 of Mr Comeagain’s E59/1956 affidavit and 28 of Mr Comeagain’s E70/2596 affidavit);
•	The native title party has a strong spiritual connection to the waterholes on the proposed licences and believes that after death, the spirits of the deceased travel into such water bodies and eventually settle in the land itself, so it is important that these water bodies are not disturbed or damaged (at 40 of the E59/1956 Contentions and at 41 of the E70/2596 Contentions);
•	Mr Comeagain deposes the spirits of the native title party’s ancestors and the Bimbara watch over the country from those waterholes and the native title party are required to check on the rockholes and that the permanent springs still have life.  He deposes the rockholes were covered with rocks by the native title party’s ancestors to conceal and protect them.  Mr Comeagain also states that he and other initiated men go to these sacred places because if they don’t fulfil their duties to properly care for the places, the Bimbara and the spirits will punish the community by causing sickness and death (at 25-27 of Mr Comeagain’s E59/1956 affidavit and at 26-29 of Mr Comeagain’s E70/2596 affidavit);
•	The water bodies form a vital part of the native title party’s dreamtime stories, including the depiction of a man-like spirit snake named Bimbara who can do good things for the native title party such as provide water, fill the land with plants and animals, and encourage the growth of flora and fauna. The native title party’s belief system teaches that the descendants of these spirits will experience misfortune, ill health and possibly death if a watercourse or waterhole housing the Bimbara is disturbed (at 41 of the E59/1956 Contentions and at 42 of the E70/2596 Contentions, also at 40 of Mr Papertalk’s E59/1956 affidavit and at 39 of Mr Papertalk’s E70/2596 affidavit);
•	Mr Papertalk deposes that there are law grounds within the proposed licences where the native title party’s ancestors camped, prepared for and carried out initiation ceremonies.  He deposes he and other initiated men know where they are, as they look after and protect them by visiting them and making sure no damage has been done or the wrong people have been there so that the community won’t suffer illness or trouble from the Bimbara and ancestral spirits (at 41-42 of Mr Papertalk’s E59/1956 affidavit and at 40-41 of Mr Papertalk’s E70/2596 affidavit);
•	The nature of some sites within the proposed licences are such that even non ground disturbing work may cause interference with sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the Act (at 42 of the E59/1956 Contentions and at 43 of the E70/2596 Contentions);
•	Despite the protections afforded by the Aboriginal Heritage Act, damage as a result of mining activities has already materialised at Tallering Peak. The native title party believes in that situation, since it failed to fulfil its duty to protect the sacred site, that the death of several members of the native title party was the result of that failure (at 43 of the E59/1956 Contentions and at 44 of the E70/2596 Contentions); and
•	The significant sites existing within the proposed licence cannot be adequately protected by the Aboriginal Heritage Act because their locations are unknown to the grantee party (at 44 of the E59/1956 Contentions and at 45 of the E70/2596 Contentions).
s 237(c)
[64]	In addressing the issue of major disturbance of land or waters, the native title party contentions state (at 46 of the E59/1956 Contentions and at 47 of the E70/2596 Contentions) that regard should be had to:
•	the importance of the waterholes in the proposed licences and their significance in Dreamtime stories;
•	the significance of the old law grounds and camp sites within the proposed licences to the native title party;
•	the significance of the cave located in E70/2596 containing pre-European settlement artefacts of the native title party’s ancestors;
•	the frequent use of the proposed licences and surrounding areas for travel, hunting and gathering of bush tucker by the native title party;
•	the use of the areas of the proposed licences for the education of younger members of the native title party; 
•	the special significance of Tallering Peak to the native title party; and
•	the existence of unregistered sites in the proposed licence areas that are unknown to the grantee party.

Grantee party contentions and evidence
[65]	The grantee parties provided a statement of contentions in relation to both E59/1956 and E70/2596, dated 1 July 2014, as well as the affidavit of Mr Thomas Weaver, the Native Title Manager for FMGL, affirmed on 30 June 2014.  The second grantee party is a wholly-owned subsidiary of FMGL and it appears that FMGL determines the overarching policies and procedures under which its subsidiaries operate.
[66]	The grantee parties point out (at 4.4 of the GP Contentions) that 2,205.93 hectares of E70/2596 is overlapped by tenements already granted by DMP - as noted at [32] of this decision, these are the Mount Gibson tenements.  The grantee party make the point that, pursuant to s 57(2c)-(2ea) of the Mining Act, the areas of those current tenements cannot be included in the grant of the proposed licences, which reduces the area of E70/2596 which will be available to the first grantee party.  I note that examples of the Mount Gibson tenements are M70/1063-I, M70/896-I, M70/1064-I, G70/192 and others, including two miscellaneous licences and two general purposes leases, as outlined at [32].
[67]	The GP Contentions also point out that it is unclear whether many of the sites (registered or unregistered) said to be within E70/2596 (including Tallering Peak) lie within those areas that overlap the Mount Gibson tenements (at 9.6).  I note Tribunal mapping indicates that all the ‘other heritage places’ and the following registered sites listed as lying within E70/2596 actually lie partially within the Mount Gibson tenements (for a full list see [34] and [35]):
•	Tallering Peak (site ID 4454, ceremonial, mythological, repository/cache, closed access, male only access);
•	FL01_12001 (site ID 31721, artefacts/scatter, open access, no gender restrictions);
•	FL01_12002 (site ID 31722, artefacts/scatter, open access, no gender restrictions);
•	FL01_12003 (site ID 31723, artefacts/scatter, open access, no gender restrictions);
•	FL01_12004 (site ID 31724, artefacts/scatter, open access, no gender restrictions);
•	FL01_12005 (site ID 31725, artefacts/scatter, open access, no gender restrictions); and
•	FL01_12006 (site ID 31726, artefacts/scatter, quarry, open access, no gender restrictions).
[68]	The grantee party further contend that the area referred to as ‘Tallering Peak’ by Mr Papertalk and Mr Comeagain in their affidavits is commonly known as ‘Tallering Hill’, and it is Tallering Hill which has been mined by Mount Gibson Mining Ltd (at 9.5).
[69]	The grantee parties contend that the affidavit of Mr Weaver supports the following contentions (at 6.3):
•	The grantee parties are cognisant of their obligations under the AHA;
•	The grantee parties have adopted processes and procedures to avoid interference with Aboriginal sites;
•	The grantee parties ascribe to the Guidelines for Consultation with Indigenous People by Mineral Explorers, published by DMP; and
•	The grantee parties’ policy is not to undertake ground disturbing activities without a heritage survey having been first undertaken.
[70]	Mr Weaver attests the grantee parties are cognisant of their obligations under the AHA (at 10) and FMGL has an Aboriginal Heritage Department, which is responsible for ensuring that it meets its obligations under: the AHA; any agreements between FMGL and third parties; and any other areas that FMGL accepts are of particular importance to Aboriginal people (at 11).
[71]	Mr Weaver goes on to outline the process FMGL uses to minimise the risk of damage to heritage sites. The process utilised by FMGL and its subsidiaries involves the requirement for the internal issue of ‘ground disturbance permits’ (‘GDPs’) before employees or contractors can undertake any ground disturbing work (at 12).  According to Mr Weaver’s affidavit, various matters must be satisfied before a GDP is issued, including Aboriginal heritage (at 12).  For example, Mr Weaver deposes that the following must be addressed before a GDP can be issued:
•	all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements must be in place;
•	ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;
•	identify whether a heritage survey is required;
•	ensure that access to the GDP area is defined;
•	evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ heritage sites or exclusion zones;
•	check that all approvals such as those relating to s18 of the AHA are in place; and 
•	any other applicable items.
[72]	As noted by Member McNamara in Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara (at [71]), information about procedures and guidelines adopted by the grantee parties is of great assistance and it is open to the Tribunal to conclude that the rights conferred on the grantee parties will be exercised consistently with those procedures and guidelines.  With that in mind, the question becomes whether those procedures and guidelines prevent the likelihood of direct interference with sites of particular significance, and this must be assessed on a case by case basis.
[73]	According to Mr Weaver’s affidavit, FMGL is aware of the Register of Aboriginal Sites maintained under the AHA and also maintains its own record of Aboriginal heritage sites through the various heritage surveys that FMGL has carried out (at 16 and 17).  FMGL maintains its own geographic information system, which uploads the information from the Register of Aboriginal Sites on a monthly basis, and also includes all the information gathered from the various heritage surveys undertaken by FMGL (at 17).
[74]	The grantee parties contend they are willing to enter into Regional Standard Heritage Agreements (‘RSHAs’) with the native title party for both proposed licences, and that paragraphs 18 and 19 of Mr Weaver’s affidavit constitute such an offer (at 6.5).  Mr Weaver states he is authorised by the grantee parties to enter into an RSHA with the native title party for each proposed licence (at 18 and 19). I note that the terms of the offer is that it 'may only be accepted by the Native Title Party delivering two copies of the Regional Standard Heritage Agreement to FMG, marked for my attention and otherwise signed by the Native Title Party prior to any determination by the Tribunal of the Native Title Party's objection...', in respect of both proposed licences.  He also states that FMGL endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by DMP (at 20).  A copy of a statutory declaration sworn by an agent of the second native title party to the effect that an executed RSHA had been sent was annexed to the Government party’s E59/1956 contentions.  However, as the native title party notes (at 11.1 of their contentions in reply), that RSHA was directed to the Wajarri Yamatji People (which, as noted earlier, also overlaps these proposed licences), and not the native title party.  In addition, I note the affidavit deposed that the second grantee party sent the executed RSHA in relation E59/1956 care of the Yamatji Marlpa Aboriginal Corporation (YMAC).  YMAC are not the authorised representative for the native title party, but are the authorised representative of the Wajarri Yamatji people.  
[75]	I note the Government party have stated they intend to impose an RSHA condition on the grant of E59/1956. That RSHA condition refers to an RSHA endorsed by 'peak industry groups', and so the native title party appear to have a choice of RSHA.  
[76]	The Government party have added no similar RSHA condition to the grant of E70/2596.  As noted above, the grantee party, through Mr Weaver's affidavit, has offered an RSHA to the native title party for this proposed licence.  Member McNamara, in Mungarlu Ngurrankatja Rirraunkaja (Aboriginal Corporation) v FMG Pilbara canvassed this point in relation to similar evidence provided by the same grantee party in that matter.  At [101] he outlined (emphasis added):
...I do note that the grantee party’s offer of the RSHA is conditional on its acceptance and execution by the relevant native title party prior to any determination by the Tribunal. While the DMP Guidelines provide that the Government’s policy is to progress applications for exploration licences through the expedited procedure ‘only after it is satisfied that the explorer has formally agreed to address Aboriginal heritage concerns within the tenement application’ (including by way of an offer to enter into an RSHA), and the principles of the DMP Guidelines are endorsed by the grantee party, the policy regarding the use of the expedited procedure does not appear to have been strictly followed in this case. In these circumstances, it is difficult to conclude that the grantee party remains willing to engage with the native title parties on the basis of the RSHA.   
[77]	In this present matter, a determination will be made through the inquiry process.  The Government party has provided an RSHA condition to be applied on grant of proposed licence E59/1956, but not on E70/2596.  As such, it is not clear what heritage process, apart from the grantee parties internal processes, as described and evidenced by the grantee parties, will apply to the proposed licences, particularly E70/2596, once a determination is made by the Tribunal.  In addition, an RSHA is generally considered most relevant to s 237(b) of the Act, and I am mindful that while ground disturbing activity is likely to trigger a consultation process under an RSHA, in this case, as noted above, which RSHA, if any in the case of E70/2596, may apply is in doubt. I also need to consider the extent to which non ground disturbing activity may directly interfere with sites of particular significance to the native title party.  This is explored further when considering the issue of interference at [175]-[184] below.
[78]	Mr Weaver has attached to his affidavit at TJW3, TJW4 and TJW5, a copy of each grantee party’s outline of proposed works, which formed part of their applications to DMP for the proposed licences.  The work programs for the proposed licences state that the initial phase of exploration work will comprise:
•	a literature search and analysis of previous publicly available data;
•	the acquisition of aerial photography, satellite imagery, aeromagnetic or other geophysical data sets to be ortho-rectified and imported into its data management system;
•	geological mapping and rock chip sampling;
•	interpretation of historical, geophysical and geochemical data sets and target selection;
•	administration, management and supervision; and
•	gridding, access and Aboriginal heritage clearance.
[79]	Further work, depending on the results from the first phase of work, may include:
•	reverse circulation and diamond drilling;
•	interpretation, resource estimation and technical reporting; and
•	metallurgical testing.

s 237(a)
[80]	The grantee parties contend the grant of the proposed licences will not directly interfere with the community and social activities of the native title party for the following reasons (at 10.3):
•	Due to the overlap of the Mount Gibson tenements, the affidavits of Mr Papertalk and Mr Comeagain in relation to E70/2596 do not definitively state the native title party undertakes any community and social activities within E70/2596 (at 10.3(1)) - my understanding of this contention is that the grantee parties are referring to activities within the grantable portions of the proposed licences (that is, those portions which do not fall within the Mount Gibson tenements);
•	To the extent activities not involving worship at Tallering Peak (‘non-worship activities’) occur within the proposed licences, the native title party does not address:
­	the frequency with which they occur on the proposed licences;
­	the content of the non-worship activities that might occur on each occasion; and
­	the duration on each occasion of the carrying on of the non-worship activities on the proposed licences,
and without such information the grantee parties contend the Tribunal cannot assess any likelihood of interference arising from the grant of the proposed licences (at 10.3(2));  
•	The area in which the native title party’s non-worship activities occur has been assessed by the grantee parties as covering over half of the native title party’s native title claim area of 35,621.0516 square kilometres, of which the proposed licences only cover 219.84 square kilometres, which is less than 1.3 per cent of the area in which those hunting activities may occur (at 10.3(3)), and so it is unlikely that the grant of the proposed licences will interfere with the ability of the native title party to undertake those activities;
•	The area of the proposed licences has been subject to prior mineral exploration activity, as well as an underlying pastoral lease and stock route, and it is likely that these activities have impacted, and continue to affect, the extent to which community and social activities can be carried out on the proposed licence.  The grant of the proposed licences would likely have an effect no more significant than the past and continuing use of the area (at 10.3(4)-(5));
•	There are no Aboriginal communities in the area proposed licences (at 10.3(6));
•	Hunting and mineral exploration are inherently capable of coexistence (at 10.3(7));
•	Tallering Peak is located within the Mount Gibson tenements so the grant of the proposed licences is unlikely to affect the ability of the native title party to worship at Tallering Peak (at 10.3(8)); and
•	The native title party has not explained the frequency of its worship activities, the duration of those activities on each occasion or what those activities comprise, and without that information it isn’t possible to conclude the grant of the proposed licences will cause direct interference with those activities (at 10.3(9)).
s 237(b)
[81]	In relation to Tallering Peak, the grantee parties contend:
•	Only a portion of the buffer zone for the Tallering Peak registered site lies within E59/1956.  As it is a closed site, the co-ordinates for the actual site are not available so it cannot be concluded that the site actually lies within E59/1956 (at 11.5-11.8);
•	It is not clear that Tallering Hill is within the buffer zone for the Tallering Peak registered site, and the evidence of Mr Papertalk and Mr Comeagain has focussed on Tallering Hill rather than the significance of the Tallering Peak registered site (at 11.8-11.9); and
•	It is not possible to conclude from the native title party’s evidence that:
­	the Tallering Peak registered site is a site of particular significance to the native title party;
­	the Tallering Peak registered site is at risk of interference by the grant of E59/1956 as it is unclear whether the site itself exists within E59/1956 and the native title party evidence has not made this clear; and
­	Tallering Hill is not at risk of interference by the grant of E70/2596 as it is located on the Mount Gibson tenements,
(at 11.10).
This argument is largely resolved through the reply of the native title party as outlined at [122] of this decision.
[82]	In relation to the two 'other heritage' sites on E70/2596 that are not located within the Mount Gibson tenements (Greenough River ID24761 and Bangemall Creek ID30060), the grantee party contends the native title party has not addressed the significance of those sites and so the Tribunal should not find those sites to be sites of particular significance (at 11.13).
[83]	In relation to the native title party’s evidence and contentions regarding waterholes and law grounds located on the proposed licences, the grantee parties contend:
•	Mr Papertalk makes somewhat identical statements in his affidavits for both proposed licences, stating there is a law ground and water hole in each of the proposed licences and providing no further information to assess the actual location of those sites.  The grantee parties contend it is for these reasons that little weight should be given to this evidence (at 11.14) - this argument has been addressed earlier in this decision;
•	The evidence provided in relation to the law grounds and water holes is insufficient to determine that they are sites of particular significance (at 11.15);
•	Water holes occupied by Bimbara appear to be somewhat common with the native title party’s claim area, based upon evidence submitted by the native title party in several other expedited procedure inquiries (at 11.16);
•	There is nothing in the evidence of the native title party to show that the water holes stand out as sites of particular significance in comparison to other bodies of water in the native title party’s claim area (at 11.17); and
•	Mr Papertalk submitted evidence in Papertalk v West Peak Iron and in Papertalk v State Resources that ceremonial grounds exist that are still in use today by the native title party, as opposed to the law grounds in the proposed licences mentioned by Mr Papertalk as places where initiations used to be done, and there is nothing in the evidence to suggest they are currently used for any purpose (at 11.18).
[84]	I note that while there are many similarities between Mr Papertalk’s affidavits in relation to E59/1956 and E70/2596, and between Mr Comeagain’s affidavits in E59/1956 and E70/2596, there are also differences where the deponents refer to areas specific to each particular tenement in the relevant affidavit.  For example, paragraphs (16) and (27) of Mr Comeagain’s E70/2596 affidavit, and Mr Papertalk’s evidence relating to Bangemall Pool in his E70/2596 affidavit (see (49)-(54)).  I note also that the grantee parties refer to other matters which have been subject to a determination by the Tribunal, relating to other tenements, where the native title party have referred to the importance of various waterholes, worship areas, and other features on those tenements.  The grantee parties say, in effect, that this dilutes the evidence of the native title party.  However, I accept there will be features of importance and particular significance in various places within the native title party claim area.  Whether or not they are significant for the purposes of each arbitral process is a matter for the evidence.  I do note, in the previous matters referred to by the grantee parties and other matters where the native title party has been the objector, that Tallering Peak has consistently been referred to as the most significant, and central point for the traditions of the native title party.  The expedited procedure has been held to apply in those other matters, and I note that Tallering Peak, in each of those matters, has been many kilometres away from the tenement which was subject to the arbitral process.  In the present matter, for E70/2596, the proposed licence is directly adjacent to an area that contains Tallering Peak, and is covered by a large portion of the buffer zone on the DAA register associated with Tallering Peak.

s 237(c)
[85]	The grantee parties contend the grant of the proposed licences is unlikely to involve major disturbance to land or waters for the following reasons (at 12.2):
•	The proposed licences are almost entirely covered by a pastoral lease and stock route, meaning there is past and continuing disturbance notwithstanding any grant of the proposed licences (at 12.2(1));
•	The area of the proposed licences has been subject to prior mineral exploration tenure (at 12.2(2));
•	The grantee parties’ exercise of their rights conferred by a grant of the proposed licences will be regulated by the State’s regulatory regime (at 12.2(3));
•	The native title party has not displaced the presumption of regularity and, therefore, it must be assumed the grantee parties will comply with the State’s legislative regime (at 12.2(4));
•	The grant of the proposed licences will be subject to the conditions and endorsements the State has proposed to impose upon any such grant (see [37]-[38] and [43]-[44]) (at 12.2(5)); and
•	There are no sensitive topographical, geological or environmental factors relevant to the proposed licences which might suggest that exploration activities would result in major disturbance to land or waters.
Government party contentions and evidence
[86]	The Government party has provided similar contentions in relation to both the proposed licences and I will address them as such.  Where the contentions differ between the proposed licences, I will indicate so.
[87]	The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (as noted at [37]-[38] and [43]-[44] of this decision).  
[88]	In relation to the native title party’s concerns alleging damage done to Tallering Peak by the mining activities of another grantee party, the Government party says the evidence must demonstrate that the particular grantee undertaking the particular act will not comply with the regulatory regime. They state evidence alleging other grantee parties have contravened the law is irrelevant, unless that evidence can reasonably lead the Tribunal to conclude that the particular grantee in question will do the same, which is not the case in these matters (at 25 of both sets of Contentions).
[89]	The Government party states, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statute law, regulations or conditions imposed upon them (at 23 of both sets of Contentions).  Rather, the Government party contends the grantee party’s contentions provide a firm basis for concluding that the criteria of s 237 of the Act will not be breached (at 26 of both sets of Contentions).
s 237(a)
[90]	The Government party accepts (at 42 of the E59/1956 Contentions and at 45 of the E70/2596 Contentions), based upon the native title party’s contentions and the evidence in the affidavits of Mr Papertalk and Mr Comeagain, that the various community and social activities (as outlined at [50]-[54]) take place within the proposed licence area and surrounding areas. They contend (at 43 of the E59/1956 Contentions and at 46 of the E70/2596 Contentions) there is not likely to be interference with those activities because:
•	the proposed exploration is to be conducted in a manner which will not adversely impact on heritage sites and will respect local Aboriginal cultural concerns; 
•	the grantee parties have indicated a willingness to enter into a RSHA and this indicates their willingness to consult with the native title party and avoid activities likely to interfere with the activities of the native title party;
•	in relation to E59/1956, the Government party has indicated its intention to impose a condition on the grant of that proposed licence requiring the second grantee party to enter into a RSHA with the native title party within 30 days of receiving written notice from the native title party requiring this to occur;
•	the proposed licences have been subject to prior mineral exploration and mining activity, and are almost entirely overlapped by a pastoral lease. Therefore, some of these interests would have at least affected any native title rights to control access to and use the proposed licences. Further, the activities of the native title party have been ‘subject to, or coexistent with, all of these lawful activities for a significant period of time’;
•	any intersection between the community and social activities of the native title party and the grant of the proposed licences would be the same as, or no more significant than, the previous and continuing use of the proposed licence areas;
•	there are no Aboriginal communities within the proposed licences;
•	the low scale and infrequent exploration activities planned by the grantee parties, their intention to conduct their activities with cultural sensitivity, and the comparative sizes of the proposed licences compared to the native title party’s native title claim area do not appear likely to have any disruptive effect upon activities in the proposed licence areas;
•	while it may be possible for the activities of the native title party and grantee parties to come into contact from time to time, it is not apparent that the activities of the native title party will be prevented or disrupted to any significant extent;
•	hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting; and
•	in relation to E70/2596, to the extent that activities of the native title party consist of law ceremonies within the proposed licence area, the grantee party’s activities may only potentially intersect with those ceremonies during the limited period in which law business is held. There may be a small possibility that the grantee party could approach near a ceremony whilst it is being conducted in the absence of cooperation between the native title party and the second grantee party.

s 237(b)
[91]	In relation to s 237(b), the Government party submits that an area of particular significance means an area which stands out in some way from the general background of other sites and the country as a whole, and the evidence must show that it stands out in this way (at 55 of the E59/1956 Contentions and at 57 of the E70/2596 Contentions).
[92]	At paragraph 55 of the E70/2596 Contentions, the Government party accepts that Tallering Peak is a site of particular significance to the native title party. However, at paragraph 53 of the E59/1956 Contentions, the Government party accepts the grantee party’s contention that, based upon the description of Tallering Peak and its alleged damage by previous mining operations, there is confusion as to whether the native title party is referring to Tallering Peak or Tallering Hill in its evidence so it cannot accept that the Tallering Peak site on the DAA Register is a site of particular significance. As such, there appears to be some disparity in the Government party’s approach to that site, although it may be they are referring to the relatively small overlap with E59/1956 and the buffer zone of the Tallering Peak site as making that site not of particular significance for that particular proposed licence.  Nevertheless, as noted earlier, I accept that the term ‘Tallering Hill’ can be used for ‘Tallering Peak’ for the purposes of the traditions of the native title party.  I also accept that the area around Tallering Peak and Tallering Hill is of particular significance to the native title party (see for example the buffer around Tallering Peak, which is itself a closed access, male only, mythological site according to the DAA Register). See also my comments at [122] of this decision.
[93]	While the native title party identifies water holes, camping grounds and law grounds within the proposed licences as sites of particular significance, the Government party contends that insufficient evidence has been provided by the native title party to show this (at 54-56 of the E59/1956 Contentions and at 56-58 of the E70/2596 Contentions).
[94]	In its E59/1956 Contentions, the Government party also points out that, while waterways are important to the native title party, the conditions and endorsements to be placed over the proposed licences does not permit exploration at large to occur over waterways, and there is no evidence provided by the native title party to displace the presumption the second grantee party will not comply with those conditions (at 57 of the E59/1956 Contentions).
[95]	The Government party states (at 59 of the E59/1956 Contentions and at 60 of the E70/2596 Contentions) that, in the event there are any sites of particular significance within the proposed licence, interference is unlikely because:
•	there is no evidence the caves, water holes, watercourses or camp sites referred to by the native title party extend into the proposed licences;
•	proposed exploration activities will be low impact and carried out in a way which will not adversely impact on heritage sites and will respect local Aboriginal cultural concerns;
•	the native title party’s concerns regarding disturbance of the Bimbara overestimate the activities of the grantee parties should the proposed licences be granted.  There is no evidence that the grantee parties will conduct activities with those effects, but rather their activities will cause relatively minor ground disturbance.  Any negative effects will be further mitigated through the proposed conditions and endorsements the Government party intends to place on the grant of the proposed licences;
•	the proposed licences have been subject to prior mineral exploration and possibly mining activity. The proposed activities of the grantee parties are likely to be the same as, or no more significant than, the previous and continuing use of the land; and
•	the AHA and its associated processes are likely to prevent interference with any sites of particular significance.
[96]	The E59/1956 Contentions also add (at 59):
•	to the extent that Tallering Peak is the site addressed by the native title party in their evidence, the second grantee party is aware of the existence of the site and its legal obligations.  The second grantee party has also agreed to work with the native title party, at least through an RSHA, to avoid interfering with such sites; and
•	evidence regarding interference with ancestral spirits reflects a general spiritual concern to which s 237(b) does not apply: it must attach to physical interference with an identified area or site of particular significance in order for s 237(b) to be enlivened.  There is no evidence of a specific area or site to which the concern relates, but rather the Bimbara and ancestral spirits are said to inhabit all of the watercourses in E59/1956.

s 237(c)
[97]	The Government party submits that s 237(c) is only enlivened where there is a significant, direct, physical disturbance of the land or waters (by which the Act intends digging, drilling or some other means by which land or waters are moved, removed or diverted) (at 66 of both sets of Contentions).  It further argues that the qualification of ‘major’ must be given its ordinary meaning and is to be objectively assessed, and that while the perspective of Aboriginal people is relevant, it does not convert the notion into a subjective one to be determined solely by the opinions of the native title party (at 67 of both sets of Contentions).
[98]	The Government party states (at 68 of both sets of contentions) that major disturbance to land or waters is unlikely because: 
•	the proposed exploration activities are low-impact, and any ground disturbing activities are intended to be conducted in a manner which will respect local Aboriginal cultural concerns and not adversely impact on heritage sites; 
•	the State’s regulatory regimes, and the proposed conditions and endorsements, are likely to avoid and/or mitigate any disturbance to land or waters;
•	any authorised disturbance to land and waters caused by the grantee parties may be mitigated by the proposed conditions requiring rehabilitation of the land following completion of exploration;
•	the proposed licences have been subject to prior mineral exploration and mining activity, and are largely covered by a pastoral lease. The activities proposed by the grantee parties are likely to be the same as, or no more significant than, the previous and continuing use of the areas; and
•	the proposed licences do not have particular characteristics that would be likely to result in major disturbance as per s 237(c).

Native title party reply and grantee parties’ reply
[99]	The native title party lodged contentions in joint reply in relation to both E70/2596 and E59/1956.  The Reply Affidavit of Mr Papertalk was submitted only in relation to E70/2596. In relation to the Government party Contentions, the native title party has largely addressed the E59/1956 Contentions, but has said (at 13) it applies its arguments in respect of the E59/1956 Contentions, where relevant, to the E70/2596 Contentions.
[100]	The grantee parties lodged a joint reply dated 1 September 2014 in response to the native title party’s reply. The Government party did not lodge a reply.
[101]	In its reply, the native title party challenges various aspects of the grantee parties’ and Government party’s contentions, including the Government party contention (at 24 and 26 of the Government party Contentions) that the native title party’s concerns about exploration activities in general, or things done by other grantee parties, are not sufficient to overcome the assumption that the grantee party will not comply with the relevant legislation.  The native title party argues that:
•	while the grantee parties may comply with the relevant regulatory regime, they may still cause events to occur that have effects covered by one or more of the aspects of s 237 because the grantee parties do not have the relevant expertise in respect of the relevant facts and issues to assess what effects under s 237 its activities may have (at 1.3-1.4);
•	the people in possession of the relevant expertise are the elders of the native title party, and the evidence of the native title party as to the prevalence of sites of particular significance within the proposed licences establish that the risk of an event under s 237 is high (at 1.5 and 1.7);
•	the grantee parties’ willingness to enter into an RSHA is subject to the unilateral decision-making of the grantee parties, there is no compulsion for them to do so, and any entity that the grantee parties may transfer the proposed licences to in the future are also not bound to enter into any such agreement with the native title party (at 1.8-1.10);
•	despite the amount of data possessed by the grantee parties in relation to heritage matters in the areas of the proposed licences, no register of site data can be an exhaustive source of accurate site information (at 1.11-1.12);
•	there will be no reliable protection for the prevalent and significant sites identified in the native title party’s evidence against the risks identified in s 237 of the Act if the proposed licences are granted.  The native title party’s application should not fail because it has not lodged evidence as to the precise identity, description and location of all the sites which Mr Papertalk and Mr Comeagain say are at risk and require protection because it does not have the resources to place evidence of all such sites before the Tribunal (at 1.13-1.15).
[102]	The grantee parties respond that the statements of the native title party at 1.8-1.10 of their reply are incorrect.  They say that the second grantee party and FMGL have offered the RSHA and if that offer is accepted then a binding contract arises which contains a provision regarding assignment of the proposed licences (at 3.2). The issues around the RSHA have been canvassed at [74]-[77] of this decision.
[103]	I note the native title party’s Reply statement that its application should not fail because it has not lodged evidence as to the precise identity, description and location of all the sites which Mr Papertalk says are at risk and require protection.  Apart from Tallering Peak as a broad area of significance, Mr Papertalk and Mr Comeagain have identified caves, law grounds and waterways within the proposed licences, as sites of particular significance to the native title party, and have said there may be other sites within the proposed licences.  
[104]	I appreciate that resources are required to present evidence of sites and areas of particular significance.  However, the Tribunal does not necessarily need evidence of all the sites of particular significance on a tenement.  Some further detail about the caves, waterholes and law grounds would assist the Tribunal in making an assessment regarding the likelihood of interference and in relation to the limbs of s 237 of the Act.  For example, what is it about them, as distinct from other caves, waterholes and law grounds in the native title party claim area, which makes them of particular significance.  
[105]	The native title party has provided sufficient evidence in relation to Tallering Peak and the area around Tallering Peak, for me to conclude it is a site of particular significance. That site in the sense of its broad description as registered with the DAA largely falls within E70/2596, and while the 'Peak' itself is within the Mount Gibson series of tenements (and so not affected by the grant of this proposed licence), the buffer zone around Tallering Peak extends outside of the Mount Gibson tenements, through E70/2596, and over the eastern border of E70/2596.  As noted earlier, the DAA registered site of Tallering Peak (ID 4454) is a closed access, male only, mythological site.  The only other DAA site on that proposed licence which does not fall within the Mount Gibson series of tenements is the Greenough River (ID 24761).  However, this river travels within the De Grey Mullewa Stock Route (on a north/south axis through the proposed licence) and so is unlikely to suffer interference from activities of the grantee party given condition 15 to be imposed by the Government party which prohibits mining to the extent that it restricts the use of the Reserve.  In addition, I do not have sufficient detail as to why parts of the River within this proposed licence (as compared to other parts of the River) may be a site of particular significance to the native title party.  I note that no RSHA condition has been proposed to be included in the conditions of grant for this proposed licence.  I will turn to the issue of interference with the Tallering Peak buffer zone later in this decision.
[106]	The buffer zone around Tallering Peak also extends across the southern border of E59/1956, and the native title party has located significant waterholes which are surrounded by camps to the north east of that proposed licence.  However, unlike the sites on E70/2596, there is limited detail about the sites on E59/1956, and while I accept this is an important area for the native title party, I am unable to conclude that these sites are of particular significance to the native title party.  In addition, I note the Government party will impose an RSHA condition on the grant of E59/1956.
[107]	The native title party takes issue with paragraph 25 of the Government party’s Contentions, where the Government party contends that evidence of breaches of the regulatory regime by other grantees is irrelevant to the current matters unless it can reasonably lead the Tribunal to conclude the particular grantee parties in question will do the same.  The native title party responds as follows (at 2.2):
•	the evidence concerns the desecration of a significant site the subject of these proceedings, which the native title party remains deeply aggrieved about;
•	the grant of further mining tenements over and around that site increases the chance of further disturbance of the site, whether intentional or not;
•	it is evidence that the AHA does not afford adequate protection for Aboriginal heritage sites in all circumstances, and the protection offered by the AHA to traditional owners is dependent upon a grantee party’s willingness to comply with the regulatory regime and their own internal policies regarding heritage protection; and
•	it is evidence of the detrimental long-term negative effects that desecration of a sacred site has on traditional owners.
[108]	The grantee parties say (at 4.1-4.2) that the Government party Contentions have addressed what evidence may be necessary to displace the presumption of regularity, but the native title party has not addressed that issue.  I agree with the arguments of the Government party and the grantee parties, to the extent that the past actions of another miner/explorer are not relevant to how the grantee parties in this matter will behave in relation to the proposed licences.  
[109]	The native title party has also challenged (at 4-7) the Government party’s contentions in relation to s 237(a) of the Act, specifically paragraphs 43(a), (b), (c) and (e) of the Government party contentions (I assume the reference at 7 to paragraph 44(e) to be a typographical error – it should read 43(e)).  At paragraph 43(a), the Government party stated that any ground disturbing activities will be respectful of local Aboriginal cultural concerns and will not adversely impact on heritage sites.  At paragraph 43(e), the Government party contended (amongst other things) that the grantee party intends to conduct its exploration activities with cultural sensitivity.  The native title party reply in relation to both those contentions is that:
•	‘the good intentions of the Grantee Party do not form a reasonable basis to conclude that the proposed grant attracts the expedited procedure’, as the grantee party ’lacks the relevant expertise to recognise, identify and understand the traditional, community and/or social significance of sites’ (at 4.2); 
•	‘the good intentions of the Grantee Party are not legally enforceable’ and ‘may change with the passage of time’ (at 4.3); and
•	‘the grantee party might assign the tenement to a third party whose intentions might not conform to those claimed by the Government party on behalf of the grantee party’ (at 4.4).
[110]	The grantee parties state that the expressed intentions of the second grantee party and FMGL in relation to the proposed licences are relevant according to Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15]).  They state there is no evidence that the second grantee party or FMGL (after becoming the registered holder of E70/2596) will assign either of the proposed licences, and the assertions of the native title party are speculative (at 6.2-6.3).
[111]	The native title party takes issue with the Government party’s contention at 43(b) that a grantee party’s willingness to enter into a RSHA is a relevant factor in determining whether there is likely to be interference with the social and community activities of the native title party, and this expression of intention by the first grantee party indicates its willingness to consult the native title party and avoid activities likely to interfere with the activities of the native title party.  In addition to the arguments mounted as outlined in the paragraphs above, the native title party responds (at 5):
•	the terms of the RSHA are unacceptable to the native title party, and while the native title party’s alternative heritage agreement was provided to the grantee parties they were unable to reach agreement as to its terms (at 5.4(a)-(b));
•	‘in the native title party’s experience, a grantee party’s willingness to consult a native title party exists on the basis that any such consultation occur exclusively on the grantee party’s terms, which are not necessarily acceptable to the native title party as being reasonable and within the beneficial intentions of the Act’ (at 5.4(c)); and
•	‘the grantee party might assign the tenement to a presently-unknown third party whose unenforceable intentions cannot presently be ascertained’ (at 5.4(e)).
[112]	The grantee parties respond that even though the native title party has rejected the grantee parties’ offers of an RSHA for the proposed licences, the fact of the offers is still relevant according to President Webb in Yindjibarndi Aboriginal Corporation and FMG Pilbara (at [32]).  They state the fact that the offers are made adds credibility to the statements by the grantee parties concerning their approaches to protecting Aboriginal heritage and assists the Tribunal in making its predictive assessment (at 20.2-20.5).
[113]	The arguments raised by the native title party here are much the same as those considered at [107].  I reiterate my comments at [72].
[114]	The Government party states (at 43(c)) that some of the past and current mining and pastoral activities on the proposed licences are likely to have extinguished at least any native title rights to control use of, and access to, the relevant land. They contend the Tribunal is entitled to take this context into account in determining the likelihood of interference that the grant of the proposed licences may have on the community and social activities of the native title party.  The native title party reply states (at 6.2) this assertion by the Government party identifies that the risks described in s 237 of the Act are impossible to evaluate, so the expedited procedure should not apply. The grantee parties state (at 8.2) they support the position of the Government party and contest the native title party’s assertion at 6.2 of their reply that the risks are impossible to evaluate.
[115]	I am unable to accept the native title party argument, as there are clear processes outlined in Federal Court and Tribunal decisions for evaluating such risks. For example, the Tribunal is required to undertake a predictive assessment of whether the grant of the exploration licence and the exercise of rights conferred by it would or would not be likely (in the sense of a 'real chance') to result in the interference or disturbance referred to (see Smith v Western Australia at [23]; Cheinmora v Striker Resources at 39; Cornwall v Western Australia at 4).  FMG Pilbara v Yindjibarndi Aboriginal Corporation affirmed it is the task of the Tribunal to make a predictive analysis as to whether interference is likely to arise and to make a finding in relation to the interference (at 40), and stated (at 47):
...determining what is likely to occur in the future is a matter of speculative, though informed, appraisal and not fact finding about present or past events, though those findings will inform the appraisal.
[116]	The native title party challenge the Government party’s submissions (in paragraphs 44 to 50 of the Government party Contentions) in relation to s 237(b) of the Act (see [91]-[96]).  The native title party reply states (at 8):
•	the Government party’s contentions advocate that the Tribunal should engage in conjecture about how the grantee party might conduct itself in the future (at 8.1);
•	the Act is beneficial legislation and protection of the right to negotiate should not be narrowly construed (at 8.2);
•	the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act involving a real chance or risk of interference or major disturbance of the kind contemplated by s 237 of the Act, and that this argument is supported by the Explanatory Memorandum to the Native title Amendment Bill 1997 which requires the arbitral body to undertake a predictive assessment (at 8.3-8.4);
•	The evidence of Mr Papertalk and Mr Comeagain was genuine and should be applied to reach a finding that the risks identified by s 237 of the Act are too serious to justify the application of the expedited procedure in this matter (at 8.5-8.6); and
•	regarding the limitations on the native title party’s ability to identify every site that stands out in the proposed licence area, the Tribunal should have regard to the following factors (at 8.7):
­	the relatively large size of the proposed licences;
­	the content and extent of elaboration in the affidavits of Mr Papertalk and Mr Comeagain;
­	the beneficial nature of the Act;
­	Aboriginal and Torres Strait Islander peoples are the most disadvantaged group in Australian society;
­	the impracticality of the expectation on the native title party that they provide complete documentary evidence of every site on the proposed licences that stands out; and
­	the identification, evaluation and appropriate and lawful management of all such sites is the activity which s 237 of the Act seeks to protect and enforce.
[117]	The grantee parties say in relation to paragraph 8.5 of the native title party reply, they have some concerns regarding the evidence of Mr Papertalk, which they later set out in their response to paragraphs 9 and 27 of the native title party’s reply (at 10.1).  In relation to paragraph 8.7 of the native title party reply, the grantee parties say the Tribunal must make a finding that an area or site is of particular significance based upon evidence, and it is unclear to them how the matters referred to in paragraph 8.7 of the native title party reply are relevant to that process (at 10.2).
[118]	In relation to the native title party’s first point at 8.1, I repeat my comments at [103]-[104].
[119]	The native title party’s points at 8.2-8.4 repeat established points of law, and do not support the argument it makes at 8.5-8.7.  In relation to the authenticity of the evidence of Mr Papertalk and Mr Comeagain, neither the Government party nor the grantee parties dispute how genuine it is.  I also believe that the evidence of Mr Papertalk and Mr Comeagain is genuine and accept it on that basis. 
[120]	Regarding the native title party’s arguments at 8.7, I agree that all relevant matters must be weighed in making the decision as to whether the expedited procedure should or should not apply.
[121]	The native title party addresses (at 9.1) the issue raised by the Government party (at 53 of their E59/1956 Contentions), where they align with the argument raised by the grantee parties that it is unclear to them whether the evidence of Mr Papertalk and Mr Comeagain regarding Tallering Peak actually refers to the registered site or to Tallering Hill. The native title party states the further affidavit of Mr Papertalk affirmed 7 August 2014 (‘Papertalk Reply Affidavit’) clarifies the issue, as the native title party view Tallering Peak and Tallering Hill as one geographical site which they refer to as ‘Tallering Peak’ (at 9.2).  The Papertalk Reply Affidavit confirms this is the view of the native title party (at 3). As noted earlier (at [81]) Tallering Hill is located on Mount Gibson tenements, and Tallering Peak is a DAA registered site. However, as also noted earlier in this decision, I accept that, for the native title party this area as a whole is one site, which they refer to interchangeably as Tallering Hill or Tallering Peak.
[122]	In response, the grantee parties say:
•	the map attached to the Papertalk Reply Affidavit (marked as ‘LP1’) clearly differentiates between Tallering Peak and Tallering Hill, and even though Mr Papertalk deposes the native title party consider Tallering Hill and Tallering Peak to be one geographical site, the two places clearly have separate peaks (at 11.3); and
•	the clarifications provided by Mr Papertalk do not assist in understanding where the worship activities occur and whether they occur within either of the proposed licences (at 11.4).
[123]	I note the Papertalk Reply Affidavit is subject to non-disclosure directions pursuant to s 155 of the Act, made by me on 18 August 2014.  I will not disclose the confidential details of this affidavit, and will only make the references necessary for the purposes of supporting the Tribunal’s reasons for determination in these matters.  
[124]	The native title party takes issue with the Government party’s assertion (at 59 of the Government party Contentions) that the native title party’s concerns regarding disturbance of the Bimbara overestimate the activities of the grantee parties, should the proposed licences be granted.  The native title party states (at 10):
•	s 66 of the Mining Act permits holders of exploration licences to ‘take and divert water from any natural spring, lake, pool or stream situate in or flowing through the land, and to sink a well or bore on the land and take water therefrom’ (at 10.2);
•	the Federal Court in Western Australia v Ward 2 held the Tribunal must assume that if an activity is permitted under a tenement then it is possible that the grantee party will carry it out (at 10.3); and
•	the grantee parties have only provided details of their exploration activities for years one and two of the proposed licences if granted, but the life of an exploration licence is five years which provides the grantee parties much time to engage in the taking or diversion of water which would disturb the Bimbara spirit (at 10.4-10.5).
[125]	The grantee parties respond that firstly there is no evidence the activities the native title party are concerned with are likely to occur, and secondly that Mr Papertalk has confirmed that Bangmulla Pool [Bangemall Pool] does not lie within the proposed licences (at 12.1-12.2).
[126]	In relation to the grantee parties’ first point, I refer to paragraphs [29]-[30] of the Tribunal’s decision in Silver v Northern Territory, which affirms the Tribunal’s view that ‘...in the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement.’  However, the grantee party is bound by the conditions and endorsements the Government party has said it intends to place on the grant of the proposed licences (see [42]-[45]).
[127]	In relation to Bangmulla Pool, I cannot see where Mr Papertalk has stated that Bangmulla Pool does not lie within the proposed licences, although my reading of the map annexed to his Reply does indicate that it is partially within E70/2596, but is wholly or largely within the Mount Gibson mining tenements.  Mr Papertalk states in the Papertalk Reply Affidavit that without a survey being conducted, he is unable to be more precise (at 48).
[128]	In relation to the E70/2596 Government party contentions, the native title party takes issue with the Government party’s contention in relation to s 237(a) of the Act (at 37) that spiritual activities are within the scope of that section only when the activities are rooted in physical activities. The position at law has been outlined in this decision at [146]-[148] and confirms the Government party view. The native title party states:
•	in the Papertalk Reply Affidavit, ‘...Mr Papertalk provides particulars as to the physical component of the worship activities engaged in by the native title party at and around Tallering Peak’ (at 14.2); and
•	Mr Papertalk and Mr Comeagain request the opportunity to give oral evidence on country about this issue (at 14.3).
[129]	The grantee parties state there is nothing in the Papertalk Reply Affidavit that makes reference to such worship activities which are currently carried on, and they doubt the activities occur, at least on the proposed licences (at 16.1-16.4).  However, I do note that while the Papertalk Reply Affidavit does state damage to 'the peak' of the geographical feature has adversely affected the native title party's ability to attend to their religious practices at that specific point, the initial affidavit's of Mr Papertalk, and Mr Comeagain, clearly state that worship activities are 'still' carried out in the area of Tallering Peak - I take this to mean the broader area of Tallering Peak as marked by the DAA registered site.  
[130]	At 15.1 of their contentions, the native title party has raised concerns in relation to paragraph 56 of the Government party’s E70/2596 contentions, where it is stated it is not clear whether the caves or any of the watercourses or camping grounds mentioned by the native title party in their evidence fall within E70/2596.  In response, (at 15.2) the native title party refer to the map attached to the Papertalk Reply Affidavit, on which Mr Papertalk has marked the location of those sites.
[131]	The grantee party responds:
•	the following places marked on the map attached to the Papertalk Reply Affidavit are either wholly or substantially within the Mount Gibson tenements (at 17.4):
­	‘Bangmulla Pool’, ‘Law Ground” and ‘Cave’ (wholly within);
­	‘Workshop’ (almost wholly, if not wholly, within); and
­	‘White Ochre’, ‘Caves’ and ‘Red Ochre’ (substantially within);
•	the site marked ‘Pool’ lies outside the Mount Gibson tenements and it is not apparent that this place is referred to in Papertalk Reply Affidavit, Mr Papertalk’s E70/2596 Affidavit or Mr Comeagain’s E70/2596 Affidavit (at 17.4);
•	the boundaries are, at best, approximations (at 17.5); and
•	it is not apparent that the ochre is used, or has been used since the mid-1970s, for any traditional purposes (at 17.6).
[132]	The native title party does not disagree with the statements of the grantee parties at paragraph 4.4 of the grantee parties’ contentions (see [66]), however, the native title party says of paragraphs 4.4-4.6:
•	it is a matter of public knowledge that the Mount Gibson Mining Ltd mining operations on the Mount Gibson tenements will soon end, based upon information obtained from that company’s website, and so it is likely in the near future that the area of the Mount Gibson tenements will become available to the grantee parties (at 16.2-16.3);
•	it is reasonable to infer that Mount Gibson Mining Ltd will surrender the Mount Gibson tenements when it ends its mining operations (at 16.4); and
•	it is appropriate for the Tribunal to take into account the likelihood of the close future surrender of the Mount Gibson tenements and their subsequent availability to the grantee parties (at 16.5).
[133]	The grantee parties respond that the native title party’s comments are speculative, and even if Mount Gibson Mining Ltd does cease its mining operations in the short term, Mount Gibson Mining Ltd would still retain the Mount Gibson tenements in order to rehabilitate the land (at 18.1).  The grantee parties further argue that even if the Mount Gibson tenements were surrendered, it is a remote possibility that either of the grantee parties would apply for, and be granted, exploration licences over those areas (at 18.2).  I do not agree with the statements of the native title party, for the reasons outlined at [66] of this decision.  
[134]	The native title party raises issues regarding the agreement between FMGL and the first grantee party regarding the transfer of E70/2596 to FMGL upon grant, which was outlined at paragraph 5 of the grantee parties’ contentions.  The native title party states:
•	the terms of the agreement may be varied at any stage without notice to the native title party (at 17.2);
•	the native title party is unaware of how soon after grant of E70/2596 the first grantee party is required to transfer it to FMGL, so there remains an element of uncertainty about who will carry out exploration on E70/2596 (at 17.4-17.5); and
•	the first grantee party has not provided evidence as to the existence or nature of its internal policies regarding the protection of Aboriginal heritage, and it is unclear whether policies comparable to those of FMGL exist within the first grantee party (at 17.6-17.7).
[135]	In response to the concerns of the native title party, the grantee parties have provided in support of their reply:
•	a current ASIC Current Extract for the first grantee party dated 29 August 2014 listing Mr Peter Stanley Symonds as the sole director and secretary of the first grantee party;
•	a sworn affidavit of Mr Symonds deposing to the agreement to transfer E70/2596 to FMGL upon grant of that tenement (‘the Symonds Affidavit'); and
•	an email exchange between Mr Symonds and an employee of FMGL confirming the veracity of the contents of the Symonds Affidavit.
[136]	In his affidavit, Mr Symonds confirms that the first grantee party and FMGL are parties to an agreement dated 30 January 2004, which provides that, immediately upon grant of E70/2596, the first grantee party will transfer that tenement to FMGL (at 4-5).  The Symonds Affidavit also confirms that, to the extent E70/2596 is held by the first grantee party upon grant (at 6):
•	FMGL may, as the agent of the first grantee party, exercise the exploration rights conferred by E70/2596; and 
•	the first grantee party does not intend to exercise any exploration rights conferred by E70/2596.
[137]	The grantee parties argue that from the Symonds Affidavit the Tribunal can conclude that during the period between the grant of E70/2596 and its transfer to FMGL, the first grantee party will not exercise any exploration rights conferred by the grant of that proposed licence other than by authorising FMGL to do so, and FMGL has already provided evidence of how it intends to exercise the rights available under E70/2596 (at 19.8).
[138]	A common sense reading of the evidence provided by the grantee parties is that E70/2596 will be transferred to FMGL as soon as it is granted, and that FMGL will carry out the exploration activities on E70/2596, as outlined by the affidavit of Mr Weaver and the work program submitted for E70/2596 by FMGL.  In Nyikina & Mangala v Backreef Oil, Siopis J (at [65]) supported the notion that the Tribunal can take into account evidence of future dealings where there is evidence before it of those future dealings.  Indeed, the Symonds Affidavit confirms the contractual requirement for the first grantee party to immediately transfer E70/2596 to FMGL upon grant.
[139]	The native title party’s reply (at 18), raises an objection to paragraph 10(5) of the grantee parties’ contentions, where the grantee parties contended the community and social activities carried on by the native title party on the proposed licences have been subject to past and present mineral exploration, mining and pastoral activities, and any intersection between the grant of the proposed licences and the non-worship activities of the native title party would be no more significant than the previous and continuing use of the proposed licence areas.  The native title party disagrees and states:
•	the activities permitted under the proposed licences are very different in nature to pastoral activities (at 18.2); and
•	if the proposed licences are granted, the grantee parties may deem it necessary to erect fences or other barriers within the proposed licences which will restrict access by the native title party and prevent them carrying out non-worship and worship activities within those fenced off areas (at 18.3).
[140]	The grantee parties argue that is it not apparent to them why the activities permitted under the proposed licences are very different in nature to pastoral activities, considering they have already outlined the activities they intend to undertake, and which are less than what is permissible under s 66 of the Mining Act.  They also point out that their exploration activities on the proposed licences must be undertaken in accordance with the State’s regulatory regime (at 21.1).
[141]	The grantee parties state that a pastoralist is entitled to erect fences, create roads and establish water bores, provided those activities are done for pastoral purposes.  They state on this basis it is not unreasonable to surmise that the activities of pastoralists are likely to intersect with the native title party’s community and social activities to a similar extent as is likely with the grantee parties activities on the proposed licences (at 21.2-21.3).
[142]	The native title party take issue with paragraphs 10.3(8)-11.10 of the grantee parties’ contentions, particularly at 10.3(8) which states that the grant of the proposed licences would be unlikely to have any effect upon the native title party’s ability to worship at Tallering Peak.  The native title party responds:
•	in Dann v Western Australia, Tamberlin J held (at 367) that interference with the community life of the native title party did not require a physical interference, but rather a disruption of the spiritual connection with the land was sufficient to prevent application of the expedited procedure (at 19.2);
•	the Papertalk Reply Affidavit includes particulars as to the nature of the worship activities (at 19.3); and
•	on the basis of the information contained in the affidavit of Mr Papertalk and the Papertalk Reply Affidavit, the carrying out of certain mining activities at or around Tallering Peak (including those permitted under the proposed licences) are sufficient to disrupt the native title party’s spiritual connection with the land (at 19.4).
[143]	The grantee parties argue that the native title party’s contentions at paragraph 19 of the native title party reply are misguided, as Dann v Western Australia predated the 1998 amendments to the Act, which included amendments to s 237 (at 22.1).  The grantee parties cite Member Sosso (at [63] of Silver v Northern Territory) and President Webb (at [16] of Yindjibarndi Aboriginal Corporation v FMG Pilbara) as providing confirmation of the Tribunal’s position regarding s 237(a) following the 1998 amendments to the Act (at 22.3 and 22.4).  The grantee party cites (at 22.4) President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara as affirming the approach of the Tribunal to s 237(a) since the 1998 amendments to the Act, when she states (at [16]): 
...the focus is on ‘community and social activities’ which are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the land.
[144]	The grantee party states that the Papertalk Reply Affidavit does not mention any activities which are carried on after the mid 1970s (at 22.6).
[145]	I agree that the position put by the native title party here is incorrect at law.  The grantee party puts the correct position when they say that in Silver v Northern Territory Member Sosso (as he then was) identified (at [53]) spiritual issues fall outside s 237(a).  The grantee party also was correct in its citation of President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara.  The focus of the Tribunal must be on the physical aspect of the worship activities.  In Mungarlu Ngurrarankatja (Aboriginal Corporation) v FMG Pilbara  Member McNamara affirmed the approach in Silver v Northern Territory and identified that while the Tribunal may take into account non-physical or spiritual aspects of a particular activity, there must be evidence that the proposed future act is likely to result in direct physical interference with the particular activity (at [104]).  The carrying on of any exploration activities around Tallering Peak is not enough to displace the application of the expedited procedure on the basis of disruption of the native title party’s spiritual connection with the land alone.  The native title party must show how the grant of the proposed licences will interfere with the physical aspects of the worship activities in a way that would satisfy the provisions of s 237(a) of the Act.
[146]	Evidence suggests the native title party still worships at special places around Tallering Peak, including places where the spirits of the native title party’s ancestors reside.  Worship activities are also said to have occurred in the past at old law grounds.  While the level of detail of the current worship activities around Tallering Peak is not sufficient to lead me to conclude such community and social activities would be likely interfered with by the exploration of the grantee parties for the purposes of s 237(a) of the Act, such activities do support the importance of this area for the native title party, as a site of particular significance, for the purposes of             s 237(b) of the Act, and I outline more about that under the analysis for that section below.  Finally, at 11.12-11.19 of the grantee parties’ contentions, they assert the native title party has not provided sufficient information regarding the significance and location of the other two registered sites within E70/2596 (being the Greenough River and Bangemall Creek) or the water holes and old law grounds within the proposed licences.  The native title party reply (at 20 and 21) states that the Papertalk Reply Affidavit addresses this.  
[147]	I note the Papertalk Reply Affidavit states:
•	there is an area marked on the map attached to the Papertalk Reply Affidavit which is filled with many artefacts and tools created by the native title party ancestors to hunt and prepare food (which Mr Papertalk calls 'the workshop').  (I confirm that this area is marked on the map and it appears to be wholly or largely within the Mount Gibson tenements);
•	Mr Papertalk revises his evidence in the E70/2596 Papertalk Affidavit to say it appears the law ground he thought was in E70/2596 may actually just outside of that proposed licence but a survey may yield a different result (at 26);
•	Mr Papertalk advises that initiation ceremonies were once conducted at that law ground, and although it is not currently used for that purpose it still retains particular significance to the native title party who are currently considering reopening it to carry out their traditional ceremonies at that place once again (at 34-38);
•	Mr Papertalk has marked Bangemall Pool on the map, explained that a special entity lives there (which is covered by confidentiality orders in relation to the comments in his Reply affidavit), and he details the significance of the entity to the native title party. (I confirm the Pool is partially outside E70/2596 and is largely or wholly within the Mount Gibson tenements - see further commentary at [127] above);
•	Mr Papertalk marked places on the map where red and white ochre are collected for transport to the law grounds for use during ceremonies, and expressed his concern that these places may be damaged if E70/2596 is granted resulting in the ochre not being available to the native title party for their traditional purposes (at 56-59).  (I note these places seem to be partially within the Mount Gibson tenements); 
•	Mr Papertalk confirmed the Bimbara lives in the Greenough River, and disturbance of Bimbara may result in sickness and death within the native title party, as the Bimbara will be unhappy the native title party failed to protect its home - as noted at [105] above, this river travels within the De Grey Mullewa Stock Route (on a north/south axis through the proposed licence) and so is unlikely to suffer interference from activities of the grantee party; and
•	I confirm Mr Papertalk has marked two sets of caves on the map and he says the caves are significant to the native title party as their ancestors used to camp there (at 64-67) - I note these caves appear to be wholly or largely within the Mount Gibson mining tenements.
[148]	The grantee parties state the evidence provided by the native title party is insufficient to show the Greenough River to be a site of particular significance, as nothing in the evidence distinguishes that part of the Greenough River flowing through E70/2596 from any other portion of the river, and Mr Papertalk’s evidence as to the consequences of the Bimbara being disturbed are speculative (at 23.4).  As noted at [105] above, I agree with this concern, and further note it is within the De Grey Mullewa Stock Route C.
[149]	In relation to the native title party’s contentions at paragraph 21 of the native title party reply, the grantee parties state:
•	the boundaries of the Workshop area are either not within E70/2596 or only overlap E70/2596 by the barest of margins, and the Workshop area is within the Mount Gibson tenements (at 24.4);
•	the Papertalk Reply Affidavit does not address the issue raised by the grantee parties at paragraph 11.14 of their contentions, which said Mr Papertalk identified a law ground and waterhole in identical terms in each of his E70/2596 and E59/1956 affidavits (at 24.7(1));
•	the Papertalk Reply Affidavit does not provide any details of the particular significance of a water hole and law ground he states as being within E59/1956 in his E59/1956 affidavit (at 24.7(1));
•	the Papertalk Reply Affidavit says (at paragraph 31) that the law ground in E70/2596 is the most important law ground for the native title party but:
­	the law ground has not been used since the mid 1970s;
­	the native title party currently use other ceremonial sites, such as those cited by the native title party as being currently used in Papertalk v West Peak Iron and Papertalk v State Resources, and it might reasonably be expected that the more important ceremonial sites are those currently used by the native title party, and that this would be addressed in the Papertalk Reply affidavit;
(at 24.7(2)).

Considering the evidence
Community or social activities (s 237(a))
[150]	The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).
[151]	The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether their activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. I adopt the approach taken in Silver v Northern Territory (at [29]-[30]), where it was outlined that: 
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement...evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

[152]	The grantee parties’ (and FMGL’s) intended activities have been outlined in terms of their initial exploration programs, and their general approach to their activities, outlined at [70]-[79] of this decision. 
[153]	The native title party’s submissions relating to s 237(a) of the Act are outlined at [50]-[55] above, which relate to its non-worship and worship activities on the proposed licences. In response to the native title party’s contentions, the Government party states (see [90]) it accepts that members of the native title party carry out community or social activities such as camping, fishing, hunting and education of its children within the proposed licences. The Government party submits that while the evidence demonstrates this, there is not likely to be direct interference due to the factors listed at [90] above.
[154]	In relation to these points, I accept past and present exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party if and where they exist.  While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tullock v Bushwin at [122]).  It is unlikely that pastoral activities have interfered to any extent with native title party activities, as Mr Papertalk attests to liaising with the pastoral owner when conducting activities or travelling through the areas.
[155]	The total area of the Mullewa Wadjari People claim is approximately 35,621.0516 square kilometres and the proposed licences are approximately 30.2624 (E59/1956) and 211.7039 (E70/2596) square kilometres respectively. Consistent with previous Tribunal decisions, such as Cooke v Dioro Exploration, I find the size of the proposed licences, in the context of the much larger native title determination area, makes it less likely that the proposed exploration activities will interfere with the native title party’s non-worship community or social activities.
[156]	Further, while the native title party has provided evidence of the frequency of its non-worship community and social activities, and the specific activities that take place on the proposed licence areas, the native title party has not provided contentions or evidence as to why these activities could only take place on the proposed licences as compared to taking place elsewhere within the larger native title determination area, apart from the proximity to the Tallering Peak/Tallering Hill area.  
[157]	I acknowledge that the Wandanooka Aboriginal community is approximately 22 kilometres away from the proposed licences, and this proximity adds weight to the claims of the native title party that its members regularly visit the proposed licence areas to conduct the  community and social activities outlined at [50]-[54]. However, the Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place.  In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way.  I believe this is such a case.
[158]	In relation to worship activities specifically, I acknowledge and accept that the worship activities outlined at [54] around Tallering Peak occur on the proposed licences.  Due to the reasons listed at [152]-[157], I am unable to find that the grant of the proposed licences is likely to directly interfere with the native title party carrying out their worship activities.  The grantee parties are aware the native title party undertakes worship activities around the Tallering Peak area.  The grantee parties have also expressed a positive attitude towards communicating with the native title party.  If communication occurs between the native title party and the grantee party, it seems unlikely there will be a direct interference with the worship activities of the native title party.  
[159]	In the circumstances, taking into account the evidence available, I am unable to conclude there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))
[160]	The native title party contentions directed at s 237(b) of the Act are outlined at [56]-[63] in this decision.  
[161]	The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted above, it is established in DAA documentation that within E70/2596 there are nine registered sites and four ‘other heritage places’, and within E59/1956 there is one registered site.  However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity.  
[162]	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 ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the AHA, those sites may still be ‘areas or sites of particular significance’ to the native title party ‘in accordance with their traditions’ as per s 237(b) of the Act.  
Tallering Peak/Tallering Hill
[163]	Mr Papertalk and Mr Comeagain have both deposed to the significance of Tallering Peak to the native title party.  While I am aware the grantee parties have raised issue as to whether the native title party is referring to Tallering Hill or Tallering Peak when it refers to the particular significance of Tallering Peak, I accept the explanation of Mr Papertalk (for example, at 3 of the Papertalk Reply Affidavit) that Tallering Hill and Tallering Peak form the one larger geographical site. The Government party contentions for E70/2596 'accepts there is sufficient evidence to demonstrate that Tallering Peak is a "site of particular significance"' (emphasis in original).  The grantee party does not accept the specific site of Tallering Peak, or the area around Tallering Peak (as for example, described on the DAA register) is a site of particular significance. 
[164]	Based upon the evidence provided by Mr Papertalk and Mr Comeagain about the spiritual practices associated with Tallering Peak and Tallering Hill, and the significance of the area around Tallering Peak and Tallering Hill for the traditions of the native title party, which has also been consistently referred to in evidence provided in many previous arbitral decisions of this Tribunal, I accept that Tallering Peak and Tallering Hill, and the larger geographical site as marked by the buffer zone around Tallering Peak (as shown on Tribunal mapping and the DAA Register), is a site of particular significance to the native title party.
[165]	I accept the grantee parties’ argument that the geographical features 'Tallering Peak' and 'Tallering Hill' lie within the Mount Gibson tenements (this is also evident from Tribunal mapping), and those areas of land will not be included in the grant of the proposed licences.  However, the larger geographical area surrounding Tallering Peak, as marked on the DAA Register, extends through the centre east portion of E70/2596, and through a smaller portion of the south west of E59/1956.  About one fifth of the buffer zone is within Mount Gibson tenements, and the remaining four fifths is within the areas to be granted to the first and second grantee parties.  It is registered with the DAA as being closed and male only; as such, I suggest it is a sensitive area, further supporting its status as a site of particular significance.  

Water
[166]	Mr Papertalk and Mr Comeagain depose that the native title party has a very strong cultural connection to the water courses located within the proposed licences and identifies the reasons for that connection (see for example [63]).  The grantee parties and the Government party imply there are random references to waterholes and water related features, which contain spirits, in relation to this matter. However, I find the native title party quite specific in respect of identifying waterholes five kilometres north east of Tallering Peak in E70/2596 (the 'grass flats'), and 10 kilometres north east of Tallering Peak in E59/1956. The sworn evidence is that they contain spirits of ancestors and are surrounded by campsites.  The Government party states there is no evidence the waterholes extend into the proposed licence, however, the deponents swear that they do in relation to these particular areas.  These seem to be separate from the Bangmulla Pool (in E70/2596) which was referred to in the native title party evidence in reply (and marked on the Map attached to Mr Papertalk's affidavit), and which I refer to in more detail below.    
[167]	While the grantee parties and Government party seem to state the native title party have referred to 'waterholes' which all contain spirits which settle into the land, I read the evidence to mean these particular waterholes (at five and 10 kilometres from Tallering Peak) are the ones which they are focussing on as being of particular significance.  Initiated men go to these sacred places to care for them.  While I accept there is sufficient evidence to suggest these areas are important to the native title party, I do not believe that evidence is sufficient for me to conclude that these two waterholes are of particular significance to the native title party.  Mr Papertalk has also identified Bangemall Pool [Bangmulla Pool] and the Greenough River in his evidence and has stated that a sacred entity lives in those waterways.  The entity is named but is covered by confidentiality orders in relation to Bangemall Pool.  In relation to that Pool, Mr Papertalk recounts a specific story that is associated with the Pool and the entity within the Pool, and how the story is passed on through generations.  In contrast, the evidence provided in relation to the Greenough River is quite broad, the native title party has not identified why it is a site of particular significance to the native title party against the background of watercourses in general (see Cheinmora v Striker Resources at 34), and it is within an Area C Reserve.  On this basis, I cannot say that the Greenough River, for the purposes of these proposed licences, is a site of particular significance to the native title party.
[168]	The evidence Mr Papertalk has provided in relation to Bangemall Pool is subject to     s 155 non-disclosure directions, which prevents me from disclosing details of the evidence.  The evidence outlined by Mr Papertalk relates to ceremonial practices undertaken by his family members at Bangemall Pool and the significance of those practices.  In my view, there is sufficient evidence before me to support a finding that Bangemall Pool is a site of particular significance to the native title party.  However, native title party evidence also suggests it lies partially within E70/2596, but is wholly or largely within the Mount Gibson mining tenements – as such, I do not believe it would be interfered with by exploration activities of current grantee parties, for the reasons outlined at [66] of this decision.  
[169]	The only other waterhole/pool which is referred to specifically by the native title party is that marked on Mr Papertalk’s affidavit map called ‘Pool’ which is directly to the south of Bangemall Pool – there is no further evidence about the ‘Pool’ so I cannot draw any conclusion that it is a site of particular significance. 

Campgrounds/Cave
[170]	Campgrounds are referred to in broad terms in the native title party initial evidence as being associated with the waterholes at five and 10 kilometres north east of Tallering Peak.  The grantee party and Government Reply materials raise doubts about these sites, and in Reply the native title party provide a marked up map (albeit it appears to be only a portion of E70/2596) which refers to: a) a 'cave' which is marked as being in a portion of ground which is not to be granted as part of this proposed licence; and b) to ‘caves’ near Tallering Peak.  Both of these 'cave' areas appear to be within the Mount Gibson mining tenements.  As such, on their own I could not conclude the campgrounds or caves are of particular significance.  
Lawgrounds
[171]	At 41-42 of Mr Papertalk’s E59/1956 Affidavit and at 40-41 of Mr Papertalk’s E70/2596 Affidavit, he identifies that law grounds exist within the proposed licences where the native title party’s ancestors camped, prepared for, and carried out initiation ceremonies.  He states that he and other initiated men look after and protect those sites.  Mr Comeagain states (at 23 of Mr Comeagain’s E59/1956 Affidavit and at 24 of Mr Comeagain’s E70/2596 Affidavit) that the law grounds have not been used for ceremonies since the mid-1970s.  Mr Papertalk confirms this at 34 of the Papertalk Reply Affidavit.  At 27 of the Papertalk Reply Affidavit, Mr Papertalk corrects his earlier evidence by saying that upon closer examination it appears that the law ground originally identified as being within E70/2596 is not actually within E70/2596 but slightly to the east of Bangemall Pool [Bangmulla Pool] and very close to that proposed licence.  
[172]	There is no further evidence provided in relation to the law ground said to be within E59/1956, and there is nothing that assists me to reach a conclusion that the law ground within E59/1956 is a site of particular significance.  The law ground identified as being just outside of E70/2596 has a little more evidence provided, but like the E59/1956 law ground, there is simply insufficient evidence for me to reach a conclusion that it is a site of particular significance to the native title party.  The fact that ceremonies have not been conducted at the sites since the mid-1970s does not assist the native title party but it would not be fatal if other evidence were available to demonstrate the particular significance of the sites to the native title party.  However, the lack of evidence provided by the native title party leads me to find the law grounds are not sites of particular significance to the native title party for the purposes of         s 237(b) of the Act.
Workshop / Red and White Ochre sites
[173]	Mr Papertalk has identified a ‘workshop’ (at 21-25 of the Papertalk Reply Affidavit) and red and white ochre sites (at 56-59 of the Papertalk Reply Affidavit) that exist within E70/2596.  Mr Papertalk has stated the workshop area is filled with artefacts and tools created by the native title party’s ancestors, but has provided little other information.  He has not provided any information in relation to the particular significance of this area to the native title party.  In relation to the red and white ochre, Mr Papertalk has said that this ochre would be used in ceremonies at law grounds in E70/2596 should ceremonies be resumed there.  The workshop area appears to be within the Mount Gibson tenements, and also within a centre portion of the proposed licence which is not for grant to the grantee parties, and as such even were there sufficient evidence for me to conclude the workshop was a site of particular significance, which there is not, there would be no likelihood of interference from the grantee party activities.  Similarly, with both ochre sites, there is insufficient evidence to conclude they are sites of particular significance, and they appear to be largely within the Mount Gibson tenements in any event, and so again, unlikely to be subject to interference from the activities of the grantee parties in this matter.
Interference
[174]	Of assistance to the Tribunal may be information such as: are these areas visited by members of the native title party; for what purpose; how often; are the sites cared for; are they incorporated into ceremonies or other stories of the native title party; are they related to sites outside of the proposed licence?  These are only some of the types of information which have been provided by native title parties in previous inquiries before the Tribunal. In essence, as much information as possible, given the resources available, can be provided about why such sites are important. The native title party is not under a compulsion to highlight a great many sites of particular significance on a tenement. A single site which is at risk of interference as per s 237(b) of the Act may suffice for the Tribunal to find that a future act should not be subject to the expedited procedure. Each matter is assessed on a case by case basis - the more information and evidence all parties can provide in relation to any assertions they make, the clearer a picture the Tribunal has in relation to the features on the proposed licence, and how they relate to the application of the expedited procedure as per s 237 of the Act.  
[175]	In addition, if areas are sensitive, the Tribunal may cover evidence with a non disclosure order under the Act (see s 155), as in this matter.  If a written affidavit is not likely to capture the relevant information, other media may be used, such as evidence spoken on a DVD.  In Ward v Western Australia Carr J said (at 26):
...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 evidence.

[176]	As the native title party note (at paragraph 1.5 of its reply contentions), the elders of the native title party are the people with that knowledge and expertise so it is reasonable to expect that if sites of particular significance to the native title party exist within the proposed licences, they will lead the requisite evidence to support those claims. 
[177]	In this matter, the native title party have provided such information.  They have created a picture of the site of Tallering Peak/Tallering Hill, and the area surrounding those sites, as being an area of particular significance to this native title party.  This area is visited by members of the native title party, and largely falls within E70/2596.  The purpose of the visits, and the importance of the area, has been outlined as including being an area where worship takes place and where the native title party spirits return.  The native title party attests to the fact that the area has places which are cared for and they are important to the stories of the native title party.  I accept that it has been used intensively by ancestors, and is still cared for by the native title party in present times.
[178]	In relation to proposed licence E59/1956, the edge of the buffer zone around Tallering Peak does extend over the south of the proposed licence border, however, Tallering Peak is at least some several kilometres from the edge of that buffer zone border, and the overlap is not extensive.  In addition, the Government party has included a condition on grant that the RSHA can be applied to that proposed licence.  No such condition has been imposed by the Government party on E70/2596.
[179]	The buffer zone for the Tallering Peak site, as registered on the DAA database, stretches largely through E70/2596.  I accept that the geographical 'Peak' and the 'Hill' sit on the Mount Gibson tenements, and the native title party have provided information which alleges those geographical sites have been disturbed by activities of that tenement holder.  I accept that the grantee parties in the current matter have played no part in any disturbance which may have been caused by other tenement holders.  I also accept that the actual Peak and Hill sit on land which is not part of the grant of E70/2596.  However, Tallering Peak is only some 300 metres approximately from the grantable border of E70/2596 (which is adjacent to the Mount Gibson tenements), and the grantable border is also approximately 800 metres from Tallering Hill.  The Mount Gibson tenement borders stop just after Tallering Peak and so the borders of the present grantee party tenements are very near Tallering Peak, for E70/2596.  
[180]	I have taken into account the extensive policies and procedures outlined by Mr Weaver that the grantee parties undertake prior to engaging in any ground disturbing activities, and while I do give weight to these policies and guidelines, I am not certain they negate a real risk of interference with the Tallering Peak geographical site, particularly given the offer of an RSHA is only open to the native title party in relation to E70/2596 until this Tribunal hands down its determination in this matter.  While I have no doubt the grantee party will abide by the AHA, I am not convinced that this automatically means there will not be a real risk of interference with the broader Tallering Peak area.  For example, activities which the grantee party may define as non ground disturbing according to its GDP process, such as rock chip sampling, disturbance of topsoil or surface layer rock using hand held tools, may not necessarily be non ground disturbing from the point of view of the native title party given the sensitivities related to this site.  In addition, I could not see whether activities such as driving across the area for the purpose of surveys was covered by the GDP process.  I note the decision of McKerracher J in FMG Pilbara v Yindjibarndi Aboriginal Corporation where His Honour observed (at 76) '...that interference that may appear trivial to a person not a member of the native title party for the purposes of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.' 
[181]	In relation to ground disturbing activities, I note the grantee party have outlined their activities for the first two years, but the activities for the further 3 or more years of the licence grant are dependent on the outcome of the first two years.  Blasting operations may be envisaged by virtue of the imposition of the Government party's condition 13 (as outlined at [37] of this decision), and even if blasting did not occur, the Mining Regulations 1981 (at Regulation 20) outline the amount of earth, soil, sock, stone, fluid or mineral bearing substance which may be 'excavated, extracted or removed during the period for which the licence remains in force is 1,000 tonnes' with further amount requiring the Minister's approval.
[182]	As President Webb QC noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [18]):
	As explained in Parker v Ammon at [35], whilst the Tribunal is entitled to have regard, and 	give considerable weight, to the Government party’s site protection regime (relevantly in this 	matter, the provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’)), this does not 	mean that in all cases the protective regime will be adequate to make interference unlikely 	under s 237(b).  This approach was approved by Siopis J in Parker v Western Australia at 	[18]. 
[183]	In addition, the Tribunal examined this type of question in Young v South Coast Metals  (at [57]) where the conclusion was:
	...the issue then becomes one whereby the grantee may not have to be in breach of 	section 17 of the Aboriginal Heritage Act 1972 to “interfere” with the site. I am of the view 	that the concept of “interference” in section 237(b) is of potentially wider import than the 	proscribed activities in section 17. For example, the driving of vehicles, including heavy 	machinery, over [a DAA registered site], may not result in a breach of section 17, but it could 	result in interference pursuant to section 237(b) depending on the circumstances.
[184]	I accept the grantee parties are aware of the Tallering Peak site as registered on the DAA database, and they confirm they are aware of their obligations under the AHA in relation to this site.  However, the grantee parties also note the co-ordinates of this site are not known as it's a closed site.  Given the sensitivities around this Tallering Peak site, I am not convinced that interference for the purposes of s 237(b) of the Act would not occur within the buffer zone around Tallering Peak which lies on the grantable portion of E70/2596, without negotiations between the grantee parties and the native title party.
[185]	Taking all of these factors into account, I find there is a real risk of interference with sites of particular significance on E70/2596 as a result of the grant of the proposed licences, as envisioned by s 237(b) of the Act, but not on E59/1956. 

Major disturbance to land and waters (s 237(c))
[186]	The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).
[187]	The native title party contentions directed at s 237(c) of the Act are outlined at [64] of this decision.
[188]	The Government party (at 66 of both sets of contentions) states that s 237(c) is only enlivened where there is a significant, direct physical disturbance of the land or waters (by which the Act intends digging, drilling, or some other means by which land or waters are moved, removed or diverted).
[189]	It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas v Northern Territory at [84]). To that extent, I agree with the Government party’s response that s 237(c) relates to significant, direct physical disturbance of land or waters. 
[190]	The Government party contentions note that the grant of the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land, for the reasons outlined at [98] of this decision.  The grantee parties’ contentions align with those of the Government party and are outlined at [85] of this decision.
[191]	In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
•	there is no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters
•	the conditions imposed on the proposed licences deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;
•	the grantee parties are willing to enter into RSHAs with the native title party;
•	the endorsements on the proposed licences direct the grantee parties’ attention to the Environmental Protection Act 1986 (WA), the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), the Water Conservation Act 1976 (WA), the Rights in Water and Irrigation Act 1914 (WA), the Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA), the Country Areas Water Supply Act 1947 (WA), the Water Agencies (Powers) Act 1984 (WA), and the Water Resources Legislation Amendment Act 2007 (WA);
•	the endorsements on the proposed licences restrict the grantee parties’ interference with water resources on the proposed licences; and
•	there is no evidence that the grantee parties are likely to fail to comply with the regulatory regime.
[192]	Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.

Determination
[193]	The determination of the Tribunal is that the act which is the grant of exploration licence E59/1956 to FMG Resources Pty Ltd is an act attracting the expedited procedure, and the act which is the grant of exploration licence E70/2596 to Maincoast Pty Ltd is not an act attracting the expedited procedure.

Helen Shurven
Member
12 March 2015