NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People/Western Australia/Luigi Bondini; Alwyn Joan Bondini; Allarrow Pty Ltd, [2010] NNTTA 38 (19 March 2010)

Application No:	WO08/313

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

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

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People – (WC99/46) (native title party)

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The State of Western Australia (Government party)

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Luigi Bondini
Alwyn Joan Bondini
Allarrow Pty Ltd (grantee parties)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Daniel O’Dea, Member
Place:	Perth
Date:	19 March 2010

Catchwords:  Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation:	Native Title Act 1993 (Cth), ss 29, 31, 151(2), 155, 237
	Mining Act 1978 (WA), s 63
	Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
	Oaths, Affidavits and Statutory Declarations Act 2005 (WA)

Cases:	Albert Little and Others (Badimia People)/Western Australia/Wildbeach Corporation Pty Ltd, NNTT WO00/167 [2001] NNTTA 36 and NNTT WO00/351 [2001] NNTTA 35 (9 May 2001), Hon Edward Franklyn QC, Deputy President
	Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member 
	Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 (1 February 2005), Hon C J Sumner, Deputy President
	Crowe & Others v State of Western Australia [2008] NNTTA 71, 218 FLR 429
	Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd, [2002] NNTTA 35 (27 March 2002), Hon C J Sumner, Deputy President
	Holocene Pty Ltd/Western Australia/Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu), NNTTA WF08/27, [2009] NNTTA 49 (27 May 2009), Hon C J Sumner, Deputy President
	Little v Oriole Resources Pty Ltd [2005] 146 FCR 576
	Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President
	Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
	Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
	Silver v Northern Territory (2002) 169 FLR 1
	Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
	Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
	Kevin Walley & Ors on behalf of the Ngoonooru Wadjari People and the Wajarri People/Western Australia/Giralia Resources, NNTT WO01/179 and WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner, Deputy President (Reported - Walley v Western Australia (2002) 169 FLR 437)
	Western Australia/David Daniel and Ors (Ngarluma and Yindjibarndi)/Valerie Holborow and Ors (Yaburara and Mardudhunera)/Wilfred Hicks and Ors/(Wong-goo-tt-oo), NNTT WF02/17, WF02/18, WF02/27, [2003], NNTTA 4 (21 January 2003), Hon C J Sumner, Deputy President
	Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Representatives of the	Ms Louahna Lloyd, Yamatji Marlpa Aboriginal Corporation
native title party:	Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Representatives of the	Mr Domhnall McCloskey, State Solicitor’s Office
Government party:	Mr Greg Abbott, Department of Mines and Petroleum
Representatives of the	Mr Ken Green, Green Legal
grantee parties:	Dr Michael Ruane, Reward Minerals Ltd

REASONS FOR DETERMINATION
[1]	On 19 December 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P51/2439 (‘the tenement’) to Luigi Bondini, Alwyn Joan Bondini and Allarrow Pty Ltd (‘the grantee parties’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
[2]	The tenement comprises an area of 87.34 hectares located 37 kilometres south easterly of Meekatharra.  It is 100 per cent overlapped by the registered claim of the Yugunga-Nya People (WC99/46 - registered from 12 June 2000).  No other native title groups overlap the tenement. 
[3]	On 29 February 2008, the native title party made an expedited procedure objection application to the Tribunal. 
[4]	On 3 April 2008, Deputy President Sumner was appointed as the Member for the purposes of the conduct of the inquiry.  In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted.  These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. 
[5]	At the listing hearing on 19 November 2009 the parties agreed that the matter would proceed to a determination on the papers.  This followed a number of conferences and twelve requests to extend direction compliance dates to enable parties to negotiate a Heritage Agreement and an exclusion zone around registered sites within the tenement area. The matter was to proceed to inquiry on the direction compliance dates as amended, and approved by DP Sumner on 11 September 2009. 
[6]	The Government party lodged its contentions and evidence on 11 May and 22 May 2009.  The native title party lodged its contentions and evidence variously on 9 November 2009, 20 November 2009 and 11 December 2009.  The grantee parties lodged their evidence and contentions on 22 December 2009. 
[7]	On 23 November 2009, I was appointed by DP Sumner as the Member for the purposes of the conduct of the inquiry. 
[8]	The parties had requested at the listing hearing on 17 June 2009 that the inquiry be heard ‘on the papers’, that is, without holding a further hearing.  I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).
Legal principles
[9]	Section 237 of the Act provides: 
 ‘237	Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)	the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)	the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)	the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
[10]	In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]-[35]).  I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened. 
[11]	Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’).  Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used.  Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable. 
[12]	With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President (‘Maitland Parker’) at [31]-[38] and [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker.  This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340) 
Contentions of the Government Party
[13]	The Government party documentation establishes that the underlying land tenure on the tenement is as follows:
•	15.3 per cent Pastoral Lease no 3114/584 (‘Hillview’);
•	82.9 per cent Pastoral Lease no 3114/550 (‘Polelle’);
•	Less than 1% Road Reserve. 
 (‘AHA’) adjacent to the tenement as follows: 
•	Site ID 11133 – Mount Yagahong (ceremonial, mythological, man-made structure – permanent register, closed access, no restriction);
•	Site ID 11139 – Yakong (ceremonial, mythological, repository/cache, permanent register, closed access, no restriction);
[16]	The Government party’s Quick Appraisal documentation indicates that, as of 8 May 2009, there is one active tenement and one pending tenement that affect the tenement.  They overlap the tenement between 64.6 per cent and 100 per cent.  The pending exploration licence E51/1005 and pending prospecting licence P51/2438 are currently subject to expedited procedure objection applications with the Tribunal (matter Nos. WO08/273 and WO08/297).  
[17]	The Quick Appraisal documentation lists some activity in the area of the tenement dating back to 1958, including previous exploration and mining. 
[18]	The grant of the tenement will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4). 
[19]	In addition, the grant of the tenement will be subject to the following conditions 5-6: 
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 utilizing equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanized equipment.
6.	The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
i.	The grant of the Licence; or
ii.	Registration of a transfer introducing a new Licensee;
advice, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

[20]	The following Endorsements (which differ from conditions in not making the licencee liable to forfeiture of the licence for their breach) will be imposed: 
1.	The licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; 
2.	The licencee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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 grant of this licence does not include the land the subject of Exploration Licence 51/960 and the land available for application for Exploration Licence 51/1005.
[21]	Attached to the contentions of the State at Annexure B was a copy of the statutory declaration executed by Helen Symes on behalf of the grantee parties declaring that they had offered to enter into a Regional Standard Heritage Agreement (RSHA) with the native title party by executing the RSHA and forwarding it to the Yamatji Land and Sea Council and inviting them to accept the offer.  The execution of that document, the forwarding of it to the native title party’s representative and the provision of such a statutory declaration to the State is, as I understand it, a requirement imposed by the State on grantee parties before the State will make the statement to the effect that the expedited procedure should apply.  In essence, that document, should it be entered into by the native title party, will require the grantee parties to conduct a heritage survey over the area of its intended exploration before any ground disturbing work can be undertaken.
Evidence provided by the native title party
[22]	The native title party lodged affidavits of Evelyn Gilla, a named applicant on the Yugunga-Nya claim, Ron Shay, Rhonda Shay, Allan Shay, and the affidavit of Stephen Wayne Morgan, which attaches the Anthropological Report of M. V. Robinson.
Affidavit of Evelyn Gilla (EG Aff.)
1.	I am a member of the Yugunga Nya native title claim group, which is a registered claim, and an Applicant for the Yugunga Nya native title claim.
2.	I have been shown a map of the tenements P51/2438 and 2439 and E51/1005.  I have also been shown a map of these tenements in relation to Mount Yagahong P01015 and Yakong P01022 registered sites by my lawyers from Yamatji Marlpa Aboriginal Corporation.  I sometimes refer to Mount Yagahong and Yakong Registered sites as Yagahong Hill.
3.	I believe the area of the registered sites Yakong and Mount Yagahong should be larger than it is.  This is because the two smaller Hills to the east which are a part of the story, are not included.  These Hills are called Big Bungoo and Little Bungoo.  The other reason why I believe the area registered should be larger than it is, is because there are so many other sites in the area which are not registered with the Department of Indigenous Affairs.  We want to register a 3 kilometre buffer zone around the Hills.
4.	I am able to talk about this area because it is my Mother’s country, and I am authorised, as an elder, to speak for Yagahong Hill, and to know the sites and traditional stories for that whole place.
5.	I was born at Yuna Downs Station and have lived most of my life in and around Meekatharra and in the area of the tenements around Yagahong Hill.
6.	The proposed tenements are in an area that is very important to the Yugunga-Nya people.  In know the story for the registered sites of Yagahong Hill and Yakong, and for other unregistered sites in the area, but I am not allowed to talk about it.  Bad things can happen if people talk about a site when they are not allowed to.  It is very important to the Yugunga Nya people that people do not disturb or touch the sites.
7.	My mother taught me how to hunt for goanna when I was about three or four.  She taught me how to follow the tracks and eventually when I was about eight or nine years of age, she taught me how to stone the goanna.  She also taught me how to find bardi, or witchetty grubs.  I have passed this knowledge on to the young ones and in doing so, these things have become community activities that we still take part in.
8.	My Mum used to take me out with my kids and show me all the special places.  She would teach us how to track emu, collect bush tucker and cook quandongs.  My Mum showed us sites and water holes all around Yagahong Hill.  We still go to these places today to camp, visit, hunt and gather and look after things in our traditional ways.
9.	My Mum also taught me all the bush medicines.  The medicines are secret and we are not allowed to tell anyone except our children.
10.	I’m very proud of my Mum’s country.  Yagahong Hill is the most important part of our country.  You would never starve around Yagahong Hill because there is lots of bush tucker out there.  Coglas, Gubijas (beans), damper, kangaroo, goanna, honey ants – they are all out there and we still eat that food.
11.	We lived on our own most of the time and would get scared when people came to visit.
12.	When we were little there were corroborrees.  People used to travel from everywhere far away to get to these meetings.  There were sacred corroborrees at Yagahong Hill.  There were special, sacred corroborrees there.
13.	Yagahong Hill carries important information for us.  That is the place where the Dingo was chasing the Emu and caught it.  You can see the places on the Emu where the dingo bit into him.  There is a song associated with that place but I can’t sing it.  Only the men can sing it.  My brothers are the custodians for that place.
14.	My grandson and nephews have been through the law business.  They are men now.  We are still very traditional and practise our culture, the law for the men and the law for the women.  My daughter Becky has gone through women’s law.
15.	I was born in the bush and spent all my early life in the bush.  There are places out there for men and places for women and you need to know these things or you can get sick.  Yagahong Hill itself is for men and women can only go around the base of it.  The two chicks following the Emu are the two little Hills to the East of Yagahong Hill.  They are places for women, and the women in our community still go out to those two little Hills to visit, camp, hunt and gather.
16.	Mum used to tell us that the Hills were like telegraph lines of communication.  But Yagahong Hill itself is most sacred and it gives us people messages.
17.	There are secret ways to tell when people, who don’t belong, come into our country.  People can be killed though sickness if they go onto sacred ground or take objects they are not meant to.
18.	My mother never lived in a proper house, only in a bush camp that my father built for her.  It was by itself.  We never had electricity or anything like that.  She would take me camping around Yagahong Hill all the time.  Not just at the base of the Hill but all around that place.  We would go walking and we used to get water from tree roots.  My mother taught me which trees to look for and how to find the roots and dig them out.  We would also look for emu eggs and cook them in the ashes or make cakes out of them.  We still hunt for bush tucker and teach children how to do all these things.  Traditional food is something I love to have whenever I can.
19.	My mother taught me all about Yagahong Hill and how it was important not to climb it.  I have passed that knowledge onto my children and nephews and nieces.
20.	Our people know where their country is.  When elders get together they talk about, and say clearly, where their country is.
21.	There are special sacred grounds all around the area of the tenements.  The old Yugunga Nya people, including my mother used to travel and camp all around the area including the area of the proposed tenements.  The area including the area of the proposed tenements is a very good place to hunt and camp and that is why we camp there a lot.  I know about those special scared grounds and some of them are within the area of the proposed tenements.  Yugunga Nya people do not want to tell people where those sites are.  They are important and special sites.  It is important to Yugunga Nya people that the sites are not interfered with or damaged.
22.	Exploration and prospecting activities including driving over the area, drilling, soil sampling, rock chipping, forming tracks, exploration camps, or even walking over the area can damage sacred and important sites.  According to Yugunga Nya traditional law and custom, some rocks should not be moved, as they form part of the sacred sites.  People can easily damage sites without knowing, especially when there are a lot of sites in the area like there are here.  I have seen where special sites have been damaged by exploration and prospecting activities.
23.	I know that some of the area of P51/2438 and 2439 has been worked in the past.  This is true of the area to the very western side of the tenements.  But there has not been any drilling to my knowledge within the 3 kilometre exclusion zone and this has resulted in there being many sites in this area which have not been affected by previous exploration and prospecting activity, and which might be affected by future activity.
24.	People need to ask us before doing things on our country.  Bill, my brother, once rang Ross Atkins who was the boss of Big bell, about a road that had been put through our land without our permission.  We should have been asked.  Ross Atkins said that the road had always been there.  That is true, but the road had changed.  No one from the family was asked to clear it.  They have destroyed water springs and holes that Mum used to take us to.  Roads have been put in right over them.  This is why we worry when a company wants to do something without having to come and talk to us first.  We know there are companies who have applied for tenements that run over the Yagahong Hill site.  We want to ensure that they talk to us about their plans so that we can have a say.  The grantee talked to us, but they did not agree to our request to stay more than 3 kilometres from the foot of Yagahong Hill.  They want to come within 1 kilometre of the foot of Yagahong Hill on the western side.  This is too close to the Hill.  We even agreed to change our 3 kilometre exclusion zone so they could come in to the old Gabanintha Pool area.  But then they said that they wanted to come further up and they want to come into the area east of old Sandstone Road.  This is too close to the Hill and it really upset me very much when I heard this is what they want to do.  We already showed we could be reasonable but we cannot say yes to 1 kilometre from the Hill.
25.	Yagahong Hill is sacred ground.  It is a religious place for us.  It is a very important place for us today because we go there to camp and pay respect, to practise our traditional law and custom, and to do things like collect food and medicine.  If drilling is allowed near Yagahong Hill then that will affect all of these traditional activities.
26.	There is a song for the Hill but that is for the men only.
27.	Only initiated men can go through the Hill, not women.  Women must stay at the bottom.  People who go onto the Hill when they are not supposed to, can get sick or die.
28.	I travel though the roads that go through the area of the proposed tenements when I travel from Leonora to Meekatharra.  I estimate that I have been on the road that goes through the area of the tenements about 5 or 6 times this year.
29.	Bush foods are an important part of our diet, mainly we eat kangaroo meat and other bush foods.  Kangaroos are part of our traditional diet.  We also hunt emu, goanna and bush turkey.
30.	Yugunga Nya people in Meekatharra go out kangaroo hunting about once every week to get some kangaroo meat for the family.  I know my nephews go out to the area in the 3 kilometre exclusion zone around Mount Yagahong Hill and Yakong all the time.  On the weekends, a couple of car loads at least will go out for the day.
31.	I have told the young people about the medicine that can be found in the plants at the Hill.  There is a lot of food there also and I have passed this knowledge on.  The Yugunga Nya still go to the Hill today to find food and medicine.  We get coglas which are bush fruit that is shaped like a pear.  We also eat berries from mulga trees, gum off trees, and beans which grow all in the area including the area of the proposed tenements.  We get these fruits whenever they are in season.  I collect them whenever I am travelling though the area.
32.	If exploration and prospecting activities are allowed within the area of the proposed tenements, it is likely that the animals that we hunt will be frightened away.  Exploration activities and driving or walking through the area will destroy some of the plants from which we collect bush tucker.
33.	Yugunga Nya people sometimes drive through the bush but we know which plants to avoid.  We drive through the area looking at different sites, visiting country and maintaining our connection to the land.  I believe the presence of trucks, drill rigs, 4 wheel drives and exploration teams would interfere with this practice.
34.	I have also seen some places where bores and drill holes have not been covered up and I have seen bungarras and rabbits and other dead animals down drill holes that have not been capped.  They fall in the hols and cannot get out.
35.	My traditional law and custom tells me that I must speak up for the Hill and look after it.
36.	The Hill is a most sacred site for the Yugunga Nya people.
[23]	I accept that Evelyn Gilla has the authority to speak for country on behalf of the native title party. 
Affidavit of Ron Shay
[24]	The affidavit of Ron Shay is very similar to that of Evelyn Gilla.  He states that he was born 30 kms east of the Hill under a Mulga tree.  He states that Yagahong Hill is the bible for the Yugunga-Nya People and connects them to country.  He confirms Evelyn Gilla’s statements that food and medicine are found in the area around Mount Yagahong and Yakong.  He also confirms that the people of the Yugunga-Nya community look after the sacred sites.  I set out below in full some of the paragraphs from the affidavit of Mr Ron Shay which significantly add to the evidence presented by the native title party, in particular, the following paragraphs:
12.	The shape of the hill is an emu lying down.  If you look at it from the side or from a plane in the air, it is an emu shape you see.  Behind that emu are two little hills, to the east, called Little Bungoo and Big Bungoo by station owners in the area.  They are the little emu chicks that are following behind their mother.  On the side of the hill where parts of it have fallen away, that is where a wild dog or dingo attacked the emu and tore away at the flesh.  That is how parts that are exposed to the weather came to be there.  This is the dreamtime story.
13.	The emu is significant to the Yugunga Nya People.  There is a constellation that you can see at night and it is in the shape of an emu.  We can read that emu in the sky.  It changes and moves.  Depending on what it is doing with its legs, it will tell you if the emu is laying eggs or not and if it is a good time to try to find the eggs for food.
21.	I am concerned that if there is drilling, the shock of the blast will disturb and crack the rock, disturb the foundations and the water systems.  It will also disturb the rock and upset our spiritual lives and our community activities.  I am also worried that if drilling happens one or two kilometres away, and there is later a mine there, that this will destabilise the hill, both physically and spiritually, and make it so that it has to be demolished for safety reasons.  I would rather keep people well away from the hill so this never happens.  The hill is too important to us and our future.
22.	There is a well that was put there near the western side of the hill by station owners.  That is where we used to draw our water from.  There’s also a natural creek alongside the western end of the hill.  I am worried that drilling will disturb these natural water sources.  If drilling disturbs these water sources, then that will affect our community activities such as camping, hunting and so on.  
29.	The hill is the single most important place for the Yugunga-Nya People.
[25]	I accept that Ron Shay is a member of the Yugunga-Nya People and is authorised to speak for country on behalf of the native title party as he is the brother of Rex Shay and Evelyn Gilla, who are named applicants to the Yugunga-Nya People’s native title claim (see the affidavit of Rhonda Shay at paragraph 4).
Affidavit of Allan Shay
[26]	The affidavit of Allan Shay is very similar to the affidavits of Evelyn Gilla and Ron Shay.  Mr Shay states that as an initiated law man he goes to Mount Yagahong and Yakong every day ‘to drive around it and make sure it is ok’ (para 8).  He asserts that as a law man it is his responsibility to look after the country.  He asserts that drilling and prospecting would impact on his activities as a custodian for the sacred sites as there could potentially be some areas that he would not be able to access, even if temporarily.  He confirms the statements of Evelyn Gilla and Ron Shay that the land around Mount Yagahong and Yakong are full of sacred sites, and states that this includes water sources, quarries and artefact scatters.  I also accept that Allan Shay is a member of the Yugunga-Nya People and is authorised to speak for country as he is an initiated law man.
Affidavit of Rhonda Shay
[27]	The affidavit of Rhonda Shay is similar to the affidavits of Evelyn Gilla, Ron Shay and Allan Shay and it confirms the important points made in those affidavits.  Ms Shay also attests that the Shire of Meekatharra has acknowledged the importance of Mount Yagahong and Yakong, and the medicinal and food plants that are gathered by the Yugunga-Nya People in that area.  I accept that Rhonda Shay is a member of the Yugunga-Nya community who is authorised to speak for country, as she is a niece of Evelyn Gilla and Rex Shay, who are part of the applicant group for the Yugunga-Nya native title claim.  
The State of the Evidence
[28]	Each of these affidavits was originally presented to the Tribunal in an unsworn form.  They were annexed to an affidavit of Louahna Lloyd which did not attest to the truthfulness or correctness of the documents but indicated that she would attempt to have them sworn at some time in the future.  This matter was raised by the grantee parties in their contentions where they correctly submitted, in my view, that procedural fairness would usually require such evidence to be verified on oath (see Western Australia/David Daniel and Ors (Ngarluma and Yindjibarndi)/Valerie Holborow and Ors (Yaburara and Mardudhunera)/Wilfred Hicks and Ors/(Wong-goo-tt-oo), NNTT WF02/17, WF02/18, WF02/27, [2003], NNTTA 4 (21 January 2003), Hon C J Sumner, Deputy President, at [28].  However, the affidavits were subsequently executed by the deponents and provided to the Tribunal (Affidavits of Ron Shay, Rhonda Shay and Allan Shay provided on 11 December 2009 and affidavit of Evelyn Gilla provided on 20 January 2009).  Those affidavits were witnessed by Ms Lloyd, solicitor for the native title party.  The grantee parties, in their submissions, raised the issue in relation to the affidavit of Mr Stephen Wayne Morgan, in which it was said that the affidavit had been witnessed by Ms Lloyd, who had clearly participated in the preparation of the native title party’s evidence and contentions for this matter.  The grantee parties made specific reference to s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) which states as follows:  
‘An experienced lawyer who has participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used, is not an authorised witness for the affidavit.’
[29]	As has been noted in this matter, Ms Lloyd has witnessed all affidavits, save her own, presented by the native title party to the Tribunal in this objection.  I note, as the grantee parties concede, that the Tribunal is not bound by the rules of evidence and in this matter I do not propose to do anything other than accept the material as sworn.  However, it is clearly unwise and undesirable in matters such as this, notwithstanding that the laws of evidence do not apply, that affidavits are being witnessed by someone who is not entitled to perform that function in relation to such materials in any proceedings to which laws of evidence do apply.  I am completely cognisant of the difficulties confronting practitioners such as Ms Lloyd in the native title jurisdiction in obtaining appropriate persons to witness affidavits.  However, I believe that it is extremely important that all efforts be made to ensure that documents are properly sworn and witnessed when they are presented to the Tribunal.
[30]	The grantee parties also raised, in relation to the evidence of the four native title claimant deponents, that there is a tendency to adopt an expanded meaning to the phrase ‘Yagahong Hill’, particularly in the affidavits of Ron Shay (para 4) and Rhonda Shay (para 3).  For the purposes of this objection, I take Yagahong Hill to mean the hill itself, that is, the area which is registered as a site under the AHA.  However, clearly, the evidence of the native title party suggests that there are concerns about the areas surrounding the hill which are as important to them, in many respects, as the hill itself.  It is part of the task which confronts me to assess the weight of that evidence in coming to a conclusion as to whether the expedited procedure should be attracted or not and, particularly, as to whether it is likely that there is to be interference with sites of particular significance to the native title party.  The desire of the native title party that the protected area be extended beyond the area of the registered sites, indicates a desire on their part to protect the wider area.  That evidence is relevant to my consideration of whether there are sites of particular significance within those areas and whether there is a likelihood that there will be interference with those sites.
[31]	There is another matter relevant to the evidence of the native title party relating to certain alleged inconsistencies between the evidence of the native title party deponents and the contents of the Robinson report in relation to the ‘story’ relevant to Yagahong Hill, which is discussed below.  Apart from those issues, the evidence of the four native title deponents is uncontested and I accept it. 
Anthropological Report of M. V. Robinson
[32]	The native title party also filed an affidavit of Stephen Wayne Morgan, an anthropologist employed by Yamatji Marlpa Aboriginal Corporation.  As has been referred to above, this affidavit was also witnessed by Ms Lloyd and my comments earlier apply equally to this affidavit. 
[33]	The affidavit and the annexed report of M.V. Robinson, prepared in 1978 for the Department of Indigenous Affairs, were made the subject of an order pursuant to s 155 of the Act, restricting their contents to male persons involved in the proceedings and to be used only for the purposes of these proceedings.  A helpful commentary on how the Tribunal deals with issues of gender restricted evidence is set out in the decision of Deputy President Sosso in Crowe & Others v State of Western Australia [2008] NNTTA 71, 218 FLR 429.  The grantee parties contend that the affidavit of Mr Morgan is of little use because it speculates as to the proposal in relation to the declaration of an extended area under s 19 of the AHA and because in the expression of his expert opinion in relation to the matter, he does not state his qualifications, the grounds upon which he forms his opinion, the material on which he has based his opinion, or the reasons for his opinion.  I accept that criticism of Mr Morgan’s affidavit and it was of little assistance to the Tribunal in it coming to its conclusions.  However, the report of Mr Robinson was of considerable assistance and I will discuss the nature of that assistance when I come to deal with matters relevant to s 237(b) of the Act.  Of course, because of the nature of the order that has been imposed upon this material, that discussion will be circumscribed in a significant way and expressed in generalities.  
Evidence Provided by the Grantee parties
[34]	The evidence of the grantee parties comes in the form of an affidavit of Dr Michael Ruane sworn 22 December 2009, a map showing the tenement area and the location of Mount Yagahong and the grantee parties’ Statement of Contentions.
Affidavit of Dr Michael Ruane
1.	I am a director of Reward Minerals Ltd (ACN 009 173 602) (“Reward”).
2.	On or about 2 December 2003, Reward (as purchaser) entered into a deed with Allarrow Pty Ltd (ACN 077 863 275), Luigi Bondini, Alwyn Joan Bondini and another (as vendors) under which Reward became entitled to purchase E51/1005, P51/2438 and P51/2439.
3.	Under the terms of the Deed, Reward became entitled to, and received, signed transfers for each of E51/1005, P51/2438 and P51/2439.  Annexed and marked:
(1)	MR1 is a true copy of a Form 23 – Transfer under which Reward is entitled to become the registered holder of E51/1005;
(2)	MR2 is a true copy of a Form 23 – transfer under which reward is entitled to become the registered holder of P51/2438; and
(3)	MR3 is a true copy of a Form 23 – Transfer under which Reward is entitled to become the registered holder of P51/2439.
4.	As is apparent from its face, each Form 23 referred to in paragraph 3 has been denoted with the payment of stamp duty by the Office of State Revenue.
5.	There are no matters outstanding for Reward to become the registered holder of E51/1005, P51/2438 and P51/2439, other than registration of each Form 23 referred to in paragraph 3.
6.	Immediately following any grant of E51/1005, P51/2438 and P51/2439, I intend lodging the relevant Form 23 with the Mining Registrar to achieve the registration of Reward as the registered holder of the relevant mining tenement.
7.	For the purposes of National Native Title Tribunal matter WO08/273, WO08/297, and WO08/313, Reward is entitled to represent, and act as the agent of, the Grantee Party for E51/1005, P51/2438 and P51/2439.
8.	I have reviewed the Aboriginal Heritage Act 1978 (WA).  I am aware and understand the obligations of Reward under the Aboriginal Heritage Act 1978 (WA).
9.	Annexed and marked MR4 is a true copy of a letter dated 23 November 2009 from the Department of Mines and Petroleum to Reward.
[35]	MR1 is a copy of an executed Form 23 – Transfer of E51/1005 stamped by the Office of State Revenue, which evidences the intended transfer of the tenement to Reward Minerals Ltd.
[36]	MR4 is indeed a letter from the Department of Mines and Petroleum dated 23 November 2009.  The letter attaches a plan showing that the size of the tenement area may possibly be reduced to a small area in the south west corner of the tenement area following grant due to the Department of Mines and Petroleum taking into consideration all the overlapping granted tenements that will not be included into the grant of the tenement.
[37]	Also included in the grantee parties’ evidence is a Deed Poll made by Reward Minerals Ltd in the favour of ‘The persons on whose behalf the native title determination application the subject of Federal Court Proceeding WAD 6132/98 is made...’ and executed on 22 December 2009.
[38]	The Deed Poll is in the following terms:
RECITALS
A	Reward is entitled to become the registered holder of P51/2439.
B	Reward wishes to enter into this Deed Poll to confirm its intention not to undertake exploration within one kilometre of the base of Mt Yagahong.
OPERATIVE PART
1.	This Deed Poll is conditional on the National Native Title Tribunal determining the Matter WO08/297 that the grant of P51/2439 is an “act attracting the expedited procedure” as that term is defined by s237 of the Native Title Act 1993 (Cth).
2.	Reward undertakes to use its best endeavours to become the registered holder of P51/2439 immediately following its grant.
3.	Reward undertakes not to exercise any right or entitlement arising under P51/2439 within one kilometre of the base of Mt Yagahong.
4.	Reward undertakes not to transfer P51/2439 to any person unless that person has signed and delivered to the Yugunga Nya People a deed poll in similar form to this Deed Poll.
[39]	The map shows that the tenement does not overlap Mount Yagahong, although the eastern edge of the tenement comes extremely close to the base of Mount Yagahong and well within the 1 km exclusion zone that Reward Minerals Ltd has pledged by Deed Poll not to undertake any exploration activities or exercise any of its rights within.  Nearly all of the tenement appears to lie within the 1 km exclusion zone.
[40]	Mr Ruane’s evidence, including the map, is not contested and I accept it.
Community or social activities (s 237(a))
[41]	The Tribunal is required to make a predictive assessment of whether the grant of the tenement and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’).  The notion of direct interference involves an evaluative judgment 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 (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]). 
[42]	The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration and prospecting licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.  
[43]	The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community and social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect those activities (Walley at 441-442 [12]). 
[44]	The evidence produced by the native title party is not specific as to whether any of the activities that might form the subject of community or social activities for the purposes of s 237(a) are conducted specifically on the area the subject of P51/2439.  The evidence relates to the area covered by three tenements which are the subject of objection applications, including this one, P51/2438, which is a small prospecting licence immediately adjacent and exploration licence E51/1005, which is a much larger area which entirely subsumes the two smaller areas and includes areas a long way from the location of Moung Yagahong.  Consequently, it is difficult to assess whether the evidence that has been presented relates specifically to any particular tenement, but I take it, generally, that the evidence being given relates to the area in and around Mount Yagahong and in particular, within a 3 km zone around the base of that hill.  It is with that reservation that I set out the evidence as follows.  
[45]	The evidence establishes that the area of P51/2439 is a good place for hunting and getting bush food.  Bush foods are an important part of the diet of members of the claim group.  Yugunga-Nya People hunt kangaroo in the tenement area regularly.  The affidavits of Evelyn Gilla, Ron Shay, Allan Shay and Rhonda Shay establish that the hunting of kangaroos in the tenement area is a frequent occurrence.  Ms Gilla at paragraph 30 of her affidavit indentifies that the hunting of kangaroos for meat can be a weekly occurrence.  The area the subject of the tenement has been a part of a pastoral lease for many years (see para 15 and 22 of the affidavit of Ron Shay).  Evelyn Gilla proposes to the fact that there has been mining activity in the area of this tenement in the past, on the very western side of the tenement, but she says that there has been no drilling within the 3 km exclusion zone (EG Aff., para 23).
[46]	Bush Tucker is also collected in season (EG Aff., para 31), although the frequency of this activity generally by claim group members is not specified.  Ms Gilla estimates that she goes through the area five or six times a year (EG Aff., para 28) and collects bush tucker whenever she is in the area (EG Aff., para 31). 
[47]	Ms Gilla expresses concern that animals will be frightened away by exploration activities and that exploration activities and driving or walking through the area will destroy plants from which bush tucker is collected (EG Aff., para 32).
[48]	Mr Allan Shay states that he visits Mount Yagahong and Yakong daily and takes care of the area as this is his responsibility as an initiated lawman.  He expresses concern that prospecting and exploration activity in the area may prevent him from accessing necessary areas, even if only temporarily, which will prevent him from carrying out his traditional duties.
[49]	The evidence produced does not mention access to the area by other members of the native title claimant group. There are also no communities within or near the tenement area. 
[50]	As Ms Gilla and Mr Ron Shay no longer live in the region, being resident in Leonora and Geraldton respectively, their evidence tends to focus on their past involvement with the area and their knowledge of the current involvement of the claimant group.  Ms Rhonda Shay is a member of the claim group resident in Meekatharra and does attest to the hunting and gathering activities of the claimant group in the area.  She attests to gathering food and plants from the tenement area, and to making traditional medicines from some of those plants.
[51]	It would seem clear that members of the native title party conduct hunting and gathering for food and medicine, as well as visiting the area for the purposes of recreation and education on a regular basis.  However, the evidence is not specific to the area of the proposed tenement.  The area of the proposed tenement is small, being some 87.34 ha in its totality.  Further, by virtue of the Deed Poll provided by the grantee parties, the grantee parties will be prevented from conducting exploration activities within 1 km of the base of the Yagahong Hill.  The grantee parties have provided a map attached to their evidence, setting out the geographical extent of a 1 km exclusion zone and how that would impact this tenement P51/2439 (I attach a copy of that map).  As can be seen from that map, after the 1 km exclusion zone is taken into account, the area that will be available to the grantee parties for exploration within the tenement will be negligible - a thin slither on the western side.  Given the extent of the area of the claim, I cannot find that there is any realistic risk of interfering with these activities, should the tenement be granted subject to the Deed Poll.  Even if the Deed Poll had not been presented by the grantee parties, it would seem to me, difficult to come to the conclusion that the interference with the hunting activities would be such that could be in any way characterised as substantial or that it would lead to an incapacity of the native title party to pursue those community and social activities in other parts of the area the subject of their native title claim.  
Sites of Particular Significance (s 237(b))
[52]	The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions.  The Register kept under the AHA shows there are two registered sites within vicinity of the tenement, but this does not mean there may not be other sites or areas of particular significance within the area or in the vicinity.  Similarly, a registered site is not, necessarily, a site of particular significance for the purposes of s 237(b).  The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The AHA protects all Aboriginal sites, whether on the Register or not. 
[53]	The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member, (‘Butcher Cherel’) (at [81]-[91])).  The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether the presumption of regularity and the protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.  In making that assessment, the intentions of the grantee parties are critical. 
[54]	The native title party refers to Mount Yagahong and Yakong the two sites on the Register as the ‘most important part of our country’ and ‘the most sacred site for Yugunga Nya people’ (EG Aff., paras 6 and 33).  This is corroborated by the evidence of Mr Ron Shay, Mr Allan Shay and Ms Rhonda Shay.  The sites are not within the area of the tenement but the eastern end of the tenement immediately abuts the base of Yagahong Hill.  The other parties do not dispute the importance of Mount Yagahong and Yakong to the Yugunga-Nya People.  I find that this site is of particular significance to the native title party in accordance with their traditions.
[55]	The area in which the tenement is situated is an important area for the native title party and they depose to the fact that there are special sacred grounds within it and all around it (see paragraphs 3, 6, 21 and 22 of the affidavit of Ms Gilla; paragraph 4 of the affidavit of Mr Ron Shay; paragraph 4 of the affidavit of Mr Allan Shay; paragraph 3 and 15 of the affidavit of Ms Rhonda Shay).  They decline to say where these sites are located within the general area, if they are located within the tenement, or the nature and reason for their significance.  They decline to say where these sites are because they do not wish to reveal the location and they cannot speak about them in general company.  (EG Aff., para 6).  In previous matters the Tribunal has found that general evidence from an anthropologist to the effect that there are likely to be sites of significance in an area such as that deposed to by Mr Morgan, is insufficient to establish their existence for the purpose of s 237(b) (see Albert Little and Others (Badimia People)/Western Australia/Wildbeach Corporation Pty Ltd, NNTT WO00/167 [2001] NNTTA 36 and NNTT WO00/351 [2001] NNTTA 35 (9 May 2001), Hon Edward Franklyn QC, Deputy President).  In this case there is direct evidence of the existence of sites of special significance to the native title party, other than the two registered sites outside the area of the tenement, but it is vague as to location and imprecise as to why those sites are beyond ordinary significance to the native title holder.  The native title party did not seek to provide any further evidence protected by confidentiality orders, which was an option open to it.  
[56]	In the present matter, the native title party argues that within a 3 km radius of Mount Yagahong and Yakong exist some sites of particular significance.  All four of the deponents (who are members of the claimant group and initiated in the Yugunga-Nya People’s law) depose from their own knowledge to the existence of some ‘special sacred grounds’ which are ‘important and special sites’ within the area of the tenement.  The reason given by Ms Gilla for not disclosing the location or discussing the sites is that she ‘is not allowed to talk about it’.  Ms Gilla states that ‘bad things can happen if people talk about a site when they are not allowed to.  It is very important to the Yugunga-Nya People that people do not disturb or touch the sites’ (EG Aff., para 6 and 21).  Mr Allan Shay confirms at paragraph 16 of his affidavit that he cannot talk about the other sacred sites, but confirms that they are important to the story and song for Mount Yagahong.  Ms Rhonda Shay confirms at paragraph 15 of her affidavit that she cannot talk about the sacred sites surrounding Mount Yagahong, but that they are part of the story of Mount Yagahong.  
[57]	The stories of the importance of Mount Yagahong and Yakong, two registered sites to the native title party, are deposed to by all four deponents on behalf of the native title party.  Mr Ron Shay and Ms Gilla tell complimentary stories about the nature of those sites by reference to ancestral beings and the dreaming, which are complimentary of one another (para 12 of the affidavit of Mr Shay and para 13 of the affidavit of Ms Gilla).  They tell the story of the emu trailed by its two chicks, being the sites referred to as Big Bungoo and Little Bungoo, as they are called by the pastoralists.  The side of the hill itself where part of the hill has fallen away, is said to represent the site where a wild dog or a dingo attacked the fallen emu and consumed it in part.  The grantee parties take issue with this on the basis that the story related by Mr Ron Shay and Ms Gilla is somewhat at odds with the story described by Mr Robinson on page 9 of his report.  The two stories are slightly different in that the protagonist, in the attack on the emu, is identified differently by Mr Robinson than by the native title deponents.  In my view, that discrepancy is both understandable from the perspective of regional variations of stories and a matter of detail rather than substance.  The grantee parties also suggest that Mr Robinson is unclear that the site that he is referring to is actually the site that is registered as Yagahong Hill.  I am satisfied, on the balance of probabilities, that the sites are one and the same.  In these circumstances I have no hesitation in concluding that Mount Yagahong and Yakong are both sites of very particular significance to the native title party.  I am also prepared to conclude on the evidence that there may be other sites which are of particular significance to the native title party within the area of the tenement under consideration. 
[58]	The grantee parties dispute that the areas surrounding Mount Yagahong and Yakong contain sites of particular significance to the Yugunga-Nya People and argue that the native title party’s evidence does not disclose the location of any particular site, nor the reason for its ‘particular’ significance.
[59]	The Tribunal has dealt with the matter analogous to the current situation in an objection determination made some years ago in an area adjacent to the area the subject of this determination, involving the same native title group (see Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd, [2002] NNTTA 35 (27 March 2002)) (‘Gilla’).  In that matter DP Sumner was confronted with very similar evidence to that presented in this case by the native title party.  The area concerned was some 10 to 15 kms south of Mount Yagahong.  In that matter, evidence from Ms Evelyn Gilla and Mr Rex Shay was adduced to the effect that there were ‘special sacred grounds’ and ‘special sites’ within the tenement area which were important to the native title party, but their location or the nature of their significance was not elaborated on.  The area in question was, in fact, adjacent to a registered site which was accepted as a site of particular significance (see Gilla at [18]).  Notwithstanding that lack of specificity, DP Sumner was prepared to come to the conclusion that there may be sites of particular significance within the area based on generalised evidence that had been provided by the native title party.  He subsequently went on, after considering the presumption of regularity, to conclude that there was a likelihood that these sites would be interfered with.  However, in my view, that case can be clearly distinguished from this one.  In that matter, as was noted by DP Sumner, the grantee party had declined to participate in the proceedings and had not attempted to negotiate with the native title party to seek to reach an agreement on the withdrawal of the objection or made clear either its exploration intentions or any mechanisms by which it attempted to avoid interference with such sites (see Gilla at [20]).  In any event, I am satisfied that the evidence in this matter, despite its vagueness, does establish that there may be sites of particular significance, other than the registered sites within the area of the tenement.  I come to that conclusion primarily because of the paramount importance of the two registered sites to the native title party.  It seems to me probable, in light of the evidence, that there are associated sites in the shadow of the hill, not dissimilar to the two chicks to the east, but not as readily apparent.
[60]	I now turn to whether the presumption of regularity and protective provisions of the AHA and associated procedures are sufficient to ensure that it is unlikely (in the sense of there being no real risk) of the sites on the tenement being interfered with.  The Tribunal has often, but not necessarily always, held this to be the case (see cases cited in Kevin Walley & Ors on behalf of the Ngoonooru Wadjari People and the Wajarri People/Western Australia/Giralia Resources, NNTT WO01/179 and WO01/180, [2002] NNTTA 24 (8 March 2002), Hon C J Sumner, Deputy President (Reported - Walley v Western Australia (2002) 169 FLR 437) at [51]).
[61]	The grantee parties draw the Tribunal’s attention to the comments of DP Sumner in Holocene Pty Ltd/Western Australia/Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu), NNTTA WF08/27, [2009] NNTTA 49 (27 May 2009), where he recognised that the grantee party understood its obligations under the AHA and would comply with its responsibilities.  In that matter, Holocene Pty Ltd was a wholly-owned subsidiary of Rewards Minerals Ltd, which is the beneficial holder of the tenement in these objection proceedings.  The grantee parties argue that the comments of DP Sumner apply equally to Reward Minerals Ltd, implying that Reward Minerals Ltd will comply with its obligations under the AHA.  I agree with that submission and find that the grantee parties understand its obligations under the AHA and will abide by them.
[62]	I note that Reward Minerals Ltd has executed a Deed Poll not to come within a 1 km radius of the base of Mount Yagahong in relation to the tenement.  By the execution of the Deed Poll, the grantee parties have created for themselves a binding obligation to the native title party to withhold from the conduct of any exploration activities within the area referred to in the Deed, which is enforceable against it by the native title party.  Similarly, as has been mentioned before, the grantee parties have executed a RSHA which has been forwarded to the native title party representatives, which would require it to conduct a heritage survey in accordance with that Agreement, should any ground disturbing work be undertaken.
[63]	In this case, the grantee parties have not provided any evidence of their exploration intentions to determine the type of work that the grantee parties intend to conduct over the area of the tenement. In the absence of evidence to the contrary I must assume that the grantee parties will fully exercise their rights under the Mining Act 1978 (WA), (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]) except within the 1 km exclusion zone that Reward has bound itself by Deed Poll within which not to engage in any exploration activities nor exercise its rights under the terms of the grant and its commitment to a RSHA.
[64]	The Government party contends in its submission, that in making a predictive assessment, the Tribunal can have regard to the enhanced effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites (see Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Champion’) at [71], (see the Government party’s contentions at paragraph 21) and the grantee parties’ attitude to the RSHA: Champion at [30]-[34] (see the Government party’s contentions at paragraph 23). They contend that the Tribunal may have regard to the extent the grantee parties will go to ensuring that the risk of interference is minimised: Champion at [30] and [34] (see the Government party’s contentions at paragraph 24).  Furthermore, the Government party contends, by way of example, that in Silver v Northern Territory (2002) 169 FLR 1 at [49] Member Sosso referred to the desire of the grantee party to ensure that any exploration activities are ‘conducted in a culturally sensitive manner’ (see the Government party’s contentions at paragraph 24). 
[65]	The evidence establishes the existence of other sites of particular significance on the tenement whose location is known to the native title party but not to other people and the precise location of which has not been disclosed in these proceedings.  Consultation with the native title party will be necessary to avoid damage to these sites.  The grantee parties have attempted to negotiate with the native title party in relation to the size of an exclusion zone surrounding Mount Yagahong and Yakong, but the parties have not been able to come to an agreement.  The native title party argues that it wishes for a 3 km exclusion zone due to all the other sites of particular significance in the area, but the grantee parties will only agree to a 1 km exclusion zone.
[66]	In this case, it appears that all but a slim section of the tenement area falls within the 1 km exclusion zone that Reward Minerals Ltd has bound itself to.  However, I must also consider the potential impact upon sites of particular significance within the tenement area that falls outside the 1 km exclusion zone.  I am assisted in this inquiry by reference to the determination of the Tribunal in Butcher Cherel at [81]-[91] and the cases sited therein.  In that matter, the Tribunal found that although there were sites of particular significance in the area of the tenement, and even in the absence of a formal RSHA, the AHA protection would be sufficient because of the extensive evidence of the intentions of the grantee parties to protect any such site of significance and consult with the native title party before ground disturbing work was undertaken.  In this matter I have come to the conclusion that there are sites of particular significance within the area of the tenement, notwithstanding that the two registered sites fall outside the tenement and that the evidence provided by the native title party deponents is imprecise.  The fact that the two registered sites are adjacent to the area and not within it does not mean that they are irrelevant to the consideration of whether those sites may be disturbed by the conduct of exploration activities in the very close vicinity.  I have come to the conclusion that it is not likely that these sites of particular significance will be interfered with if this tenement is granted for the following reasons:
i.	the existence of the Deed Poll which excludes any exploration activity within 1 km of the base of Mount Yagahong, ie a very high proportion of the tenement area itself;
ii.	the undertaking of the grantee parties to enter into the RSHA;
iii.	the general provisions of the AHA in Western Australia;
iv.	the fact that by virtue of these proceedings the grantee parties are now alerted to the possibility that there may be sites of particular significance within the area still available to them for exploration within the tenement, if granted; and finally
v.	the generalised nature of the evidence relating to the sites within the area.
On the basis of all these factors, I find that although there may well be sites of particular significance within the area of the tenement, it is unlikely that they will be interfered with in these particular circumstances.
Major Disturbance to Land and Waters (s 237(c))
[67]	The task of the Tribunal in relation to this limb of s 237 is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee parties to do so (see Little v Oriole Resources Pty Ltd [2005] 146 FCR 576).  In this matter, it does not appear to me that any of the evidence presented by the native title party deponents raises issues which might be relevant to this limb of s 237.  Further, the contentions of the native title party press the issue.  In those circumstances I am unable to find any evidence which would lead me to the conclusion that there is any likelihood that such disturbance might occur.
Determination
[68]	The determination of the Tribunal is that the grant of prospecting licence P51/2439 to Luigi Bondini, Alwyn Joan Bondini and Allarrow Pty Ltd is an act attracting the expedited procedure. 

Daniel O’Dea
Member
19 March 2010