Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another

[2014] NNTTA 23

NATIONAL NATIVE TITLE TRIBUNAL

Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (4 March 2014)

Application No:                WO2013/0791

IN THE MATTER of the Native Title Act1993 (Cth)

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

Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (WC1999/010) (native title party)

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The State of Western Australia (Government party)           

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Peter Romeo Gianni (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  4 March 2014

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Cases:Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tullock v Bushwin’)

Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little v Oriole Resources’)

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)

Mantjintjarra Ngalia 2/Western Australia/Ausnico Limited [2013] NNTTA 172 ('Mantjintjarra v Ausnico')

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

Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker v Western Australia No 2’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (‘Ashwin v Cliffs Asia Pacific’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals Limited’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (‘Ashwin v Gianni’)

Silver v Northern Territory (2002) 169 FLR 1 (‘Silver v Northern Territory’)

Smith v Western Australia (2001) 108 FCR 442 (‘Smith v Western Australia’)

Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)

Representative of the     

native title party:             Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors

Representatives of the     Ms Shelley Moore, State Solicitor’s Office
Government party:          Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the    
grantee party:                  Mr Peter Gianni

REASONS FOR DETERMINATION

1. On 24 April 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 E57/929 (‘the proposed licence’) to Peter Romeo Gianni (‘the grantee party’). The notice includes a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).

2. The notice describes the proposed licence as comprising an area of approximately 123.25 square kilometres located 97 kilometres south westerly of Sandstone, in the Shire of Sandstone. The notification date for the notice was 24 April 2013 and the 4 month close of notification was 26 August 2013.

3. The proposed licence overlaps the registered native title claim of the Wutha People (WCD1999/010 – registered from 15 June 1999) by 7.18 per cent, in the northerly portion of the proposed licence. On 17 July 2013, the Wutha People (‘native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence. No other registered claims or determinations overlap the proposed licence.

Background

1. The grantee party advised at an adjourned preliminary conference held in relation to the matter on 24 September 2013 that its preference was for the matter to proceed to inquiry. Directions for the inquiry were set with a listing hearing scheduled for 5 December 2013.

2. In compliance with these directions the parties, with the exception of the grantee party, provided submissions and evidence: the Government party’s initial evidence on 21 October 2013 through the Department of Mines and Petroleum (‘DMP’); the native title party on 4 November 2013; and the Government party’s contentions on 18 November 2013. The grantee party was directed to provide submissions and evidence on or before 11 November 2013 but advised at the Listing Hearing on 5 December 2013 that they would rely on the Government party’s contentions and evidence.

3. At the listing hearing, the parties agreed that the matter could proceed to be heard on the papers according to s 151(2) of the Act. I was appointed as the Member to conduct the inquiry by President Raelene Webb QC on 6 January 2014.

4. On 13 January 2014, the Tribunal provided parties with a map of the area of the proposed licence (dated 9 December 2013) stating I would rely on it for the purposes of this inquiry. The topographic map includes information from the Register of Aboriginal Sites, native title determination application boundaries and relevant tenure information. No objections to the use of the map in my deliberations were received from the parties.

Conduct of the inquiry

1. The native title party did not provide any evidence, statements or documents in support of its contentions. In addition, in its statement of contentions, the native title party expressed its intention to call witnesses to give oral evidence, and outlined the evidence to be given, if the matter were to be decided otherwise than ‘on the papers’ pursuant to s 151(2) of the Act. Specifically, the native title party stated (at (11)) that it intended to call Ms June Ashwin and Mr Geoff Ashwin to give evidence of:

• the likelihood of direct interference to the carrying on of the community and social activities of the native title party if the proposed licence is granted;

• the native title party’s traditional relationship with the land;

• the stories and dreamings told by the Wutha people from generation to generation since time began; and

• the relationship between the community and social activities of the native title party and the Wutha people’s relationship with the land and the stories and dreamings told by the Wutha people.

1. The native title party’s contentions do not state the qualifications of the proposed witnesses, though I do note that Ms Ashwin and Mr Ashwin are registered claimants as they are two of the four named persons who comprise the Applicant for the Wutha native title determination application.

2. The Tribunal did not receive anything definitive from the native title party that it had conclusively abandoned its request for an oral hearing and the native title party’s contentions did not specifically address why, in its view, the issues for determination cannot be adequately determined in the absence of the parties (as per s 151 of the Act). In order to avoid any doubt, I caused an email to be forwarded to all of the parties directing that if the native title party maintained its request for an oral hearing, it was to provide such supporting information by 14 January 2014. No affidavit evidence or any other communication has been received from the native title party. The Government party and grantee party had previously each informed the Tribunal that they agreed to the matter being heard on the papers.

3. The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are very similar to a number of previous expedited procedure determinations involving the Wutha People made by the Tribunal. It appears that the native title party may have developed a standard practice of stating in their contentions that they will provide oral evidence. Then, at the stage when all submissions are with the Tribunal and the matter is ready to proceed to inquiry, they either provide no further communications, or state they do not wish to provide any further material, even when given the express opportunity to do so. Some recent determinations with similar circumstances involving the Wutha People are Ashwin v Doray Minerals Limited, Ashwin v Gianni, Ashwin v Cliffs Asia Pacific. The Government party has included in its submissions (at (29) that in its view; the issues for determination in these proceedings can be adequately determined in the absence of the parties and do not require an oral hearing.  Taking into account the principles outlined at [11]-[13] by Member O’Dea in the Ashwin v Doray Minerals Limited decision I have decided to proceed with this matter on the papers. There was simply no support from the native title party that the issues cannot be adequately determined in the absence of the parties (as per s 151 of the Act).

Legal principles

1. Section 237 of the Act provides:

237     Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

1. In Walley v Western Australia, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.

2. In relation to s 237(a), I adopt the legal principles identified in Tullock v Bushwin at [10]-[16].

3. With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Parker v Ammon at [31]–[38] and [40]-[41] (see also Parker v Western Australia; Parker v Western Australia No 2).  I also adopt those set out by Deputy President Sosso in Silver v Northern Territory.

4. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little v Oriole, especially [41]-[57]).

Evidence in relation to the proposed act

1. The Government party provided the following documents in relation to the proposed licence:

   ·     A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.

   ·     Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).

   ·     A copy of the tenement application;

   ·      A Draft Tenement Endorsements and Conditions Extract; and

   ·     A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.

2. The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:

   ·     Pastoral lease 3114/873 (ATLEY) overlapping the proposed license at 99.5 per cent;

   ·     Water reserves CR17231 and 12864, overlapping the proposed licence at less than 0.1 per cent and 0.2 per cent respectively;

   ·     two live exploration licenses, both overlapping the proposed license at 2.4 per cent;

   ·     one live mining license, overlapping the proposed license 4.2 per cent; and

   ·     nine live prospecting licenses, overlapping the proposed license between 0.1 per cent and 1.1 per cent.

No party has provided information or evidence about the extent to which this underlying tenure overlaps the native title party claim area within the proposed licence, however, Tribunal mapping suggests the pastoral lease does cover the claim and proposed licence overlap.

1. The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:

   ·     16 exploration licences granted between 1990 and 2007, overlapping the proposed licence between 0.2 per cent and 97.6 per cent, all now surrendered or expired;

   ·     22 GML licenses granted between 1910 and 1983, overlapping the proposed license between 0.1 per cent and 0.2 per cent, all now forfeited or surrendered;

   ·     one miscellaneous license granted in 1991 and surrendered in 1992, overlapping the proposed license at 0.2 per cent;

   ·     24 mining leases granted between 1988 and 2008, overlapping the proposed license between 0.1 per cent and eight per cent, all now surrendered;

   ·     over one hundred and seventy mineral claims granted between 1970 and 1981, overlapping the proposed license between 0.1 per cent and 1 per cent, all now surrendered, forfeited or cancelled;

   ·     one MHL granted in 1922 and forfeited in 1928, overlapping the proposed license at 1 per cent;

   ·     15 prospecting licences granted between 1994 and 2008, overlapping the proposed license between 0.1 per cent and 0.9 per cent all now expired; and

   ·     two temporary reserves, cancelled in 1962 and 1973 respectively and overlapping between 2.4 [er cent and 100 per cent.

Again, no party has provided information or evidence about the extent these mineral tenures cover the claim/proposed licence overlap. Clearly, however, there has been a significant amount of such activity over the proposed licence a whole.

1. The quick appraisal outlines the following services located on the proposed licence:

   ·     five minor roads

   ·     nine tracks;

   ·     eight wells/bores, five of these with windmills;

   ·     three fence lines;

   ·     four yards; and

   ·     one landmark area.

2. The report from the DAA Database shows there is one Aboriginal site located on the proposed licence, being:

   ·     Site ID 4615 – Pincher Hill - ceremonial - man-made structure - open access - no gender restrictions.

3. However, a map produced by the Tribunal shows the site is located wholly outside the Wutha claim/proposed licence overlap, approximately 5 kilometres east of the claim boundary.

4. There do not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.

5. The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]) which 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.

The proposed licence will also be subject to one further condition:

5. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Reserves 17231 and 12864.

1. 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:

   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 Proclaimed Ground Water Areas the following endorsement applies:

   3.    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:

   4.    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

   5.    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.

   6.    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:

   7.    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 DoW.

   In respect to Waterways the following endorsement applies:

   8.    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’s statement of contentions

1. The native title party’s contentions are summarised in the following three paragraphs.

2. Interference with Community or Social Activities (s 237(a))

   ·     The grant of the tenement is likely to interfere directly with the carrying on of the community and social activities of the Wutha people (at 5).

   ·     The grantee party will be able to exercise rights and interests in the land that will interfere with the native title party’s ability to access the land (at 5(a)).

   ·     The exercise of the grantee party’s rights and interests will interfere with the carrying on of community activities of the native title party, such as hunting, gathering, extraction of flora, the use of other resources of the land, and any religious, ceremonial and other activities (at 5(b)).

   ·     The exercise of the grantee party’s rights and interests will interfere with the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationships of the native title party to the land (at 5(c)).

1. Interference with Areas or Sites of Particular Significance (s 237 (b))

   ·     The grant of the tenement is likely to interfere directly with areas or sites of particular significance (at 6).

   ·     It cannot be said with any certainty that the grant of the proposed license is not likely to interfere with sites or areas of particular significance until an approved heritage protection survey has been undertaken with the native title party (at 6(a)).

   ·     The Government party has not proposed that a condition be imposed requiring the carrying out of an approved heritage protection survey with the native title party at 6(b)).

   · The provisions of the Aboriginal Heritage Act 1972 (WA) (the ‘AHA’) provide for a ministerial discretion to permit interference with Aboriginal sites at 6(c)).

   ·     The Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to the exercise of the Minister’s discretion at 6(d)).

   ·     The Government party has not proposed a condition be imposed requiring the grantee party to enter into a Wutha Heritage Protection Agreement or for the grantee party to enter into some form of site identification and protection process (at 6 (e)).

2. Major disturbance to Land or Waters (s 237 (c))

   ·     The grant of the tenement is likely to involve, or create rights whose exercise will involve, major disturbance to the land (at 7).

   ·     It cannot be said with certainty that the rights accorded to the grantee party under the proposed licence will not have a significant impact on Aboriginal people who use the land (at 7(a)).

   ·     Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party (at 7(b))

3. As stated above, the native title party has not provided any material in support of its contentions and contemplates that witnesses (Ms Ashwin and Mr Ashwin) for the native title party will give evidence in support of the above contentions. The native title party contends that the witnesses may also give evidence of its traditional relationship with the land and the stories and dreaming told by Wutha people from generation to generation (at [13]).

4. Specifically, the contentions state that Ms Ashwin and Mr Ashwin would give evidence that the native title party’s community and social activities include:

• the responsibility, according to traditional Aboriginal law and custom, to protect and care for all country (including the areas of the proposed license) for which the Wutha people hold registered native title rights and interests (at 15(a));

• the duty to protect and care for those areas surrounding and including sites of spiritual significance, which are fundamental to Aboriginal customary law and sites of particular significance to the Wutha people (at 15(b));

• the duty to protect and care for areas of particular importance such as those used for hunting and gathering at 15(c)); and

• the activity of exercising the right to negotiate future act proposals on land located within the area of the Wutha people’s native title determination application (at 15(d)).

1. Furthermore, the witnesses would also give evidence that the grant of the proposed license is likely to interfere with the native title party’s community and social activities associated with the exercise of its registered native title rights and interests, and in particular:

   ·    access rights to land and the right to control the access of others to the tenement areas;

   ·    the right to use and enjoy resources and make decisions about the use and enjoyment of resources;

   ·    the right to maintain and protect places of importance under traditional laws, customs and practises; and

   ·    the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area (at 15).

2. However, the native title party simply did not prosecute this intention in any way, either directly or through their representatives, and as such I make no further comment about the evidence the native title party would or would not have given should an oral hearing have been granted.

Grantee party statement of contentions

1. The grantee party has not provided any contentions or evidence and advised at the listing hearing on 5 December 2013 that they would rely on the submissions of the Government party.

Government party contentions and evidence

1. The government party contends among other things that:

   · the rights which will be conferred by the proposed licence (if granted) are set out in section 66 of the Mining Act (and includes an extract), that the exploration license is for an initial term of 5 years and is renewable, and that in the absence of any evidence from the grantee party the Tribunal must assume that the grantee party intends to exercise the full set of rights conferred by section 66 of the Mining Act (at 13–16)

   ·    The Government party proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 17)

   ·    The licence can be forfeited for any breach of statutory or imposed conditions (at 18)

2. The Government party’s contentions also refer to the heritage agreement that the grantee party has indicated it will enter into with the Wutha claimants and sets out the general terms of heritage agreements in respect of notifying and consulting with the native title party in relation to proposed works (at 19–20).

3. In the absence of evidence to the contrary, the Government party contends that the Tribunal must assume that a grantee party will not act in breach of the relevant statue law, regulations or conditions imposed upon them (at 21).

Government party’s contentions in relation to s 237(a)

1. The Government party contentions state they do accept the majority of activities (as outlined at [27] of this decision) are community and social activities for the purposes of s 237(a). They do not accept that the duties and responsibilities outlined by the native title party or the right to negotiate future act proposals (as outlined at [31]-[32] of this decision) are relevant for the purposes of s 237(a) of the Act.

2. The native title party has not adduced any evidence that the asserted community and social activities are carried out on the proposed licence area. The Government party submits in the absence of any evidence regarding the community or social activities conducted on the proposed tenement area, the native title party has not provided sufficient evidence to enable the Tribunal to make a finding that the asserted activities are carried out on the proposed tenement area (at 49).

3. The Government party further submits that the native title party has not provided sufficient evidence to enable the Tribunal to make a finding that the grantee party’s proposed activities will directly interfere with the asserted community or social activities on the proposed tenement (at 50).

4. The Government party outline that even if the asserted community or social activities are carried out on the proposed licence, there is not likely to be direct interference because of: the previous mineral exploration; the pastoral lease; no Aboriginal communities existing within the area; exploration activities being inherently capable of existence with community and social activities of a native title party; and that the area of the proposed licence is small in the context of the Wutha claim.  I also note that the claim only overlaps a small percentage of the proposed licence in any event.  I accept all of these arguments from the Government party. The Government party also state the grantee party has indicated its willingness to enter into an RSHA type agreement with the Wutha claimants however, I could see no evidence of this from the materials provided to me.

Government Party’s contentions in relation to s 237(b)

1. The Government party quite correctly states that the native title party has not produced any evidence regarding sites or areas of particular significance and provides some detailed reasoning in relation to that (at 60-66). The Government party also states (at 67) that in any event, interference is not likely because: there has been previous mineral exploration; the area is almost entirely covered by a pastoral lease; and the State’s regulatory regime is likely to prevent interference with any area or site of particular significance.

Government Party’s contentions in relation to s 237(c)

1. The Government party states that this limb of s 237 is only attracted when there is a significant, direct physical disturbance of land or waters and that the grant of the proposed licence is not likely to involve such because: the State’s regulatory regimes will likely avoid any such major disturbance; the proposed conditions and endorsements the Government party intends to impose on the proposed licence; the previous mineral exploration and currant pastoral lease; and the absence of any particular characteristics that would be likely to result in disturbance to land or waters from the activities of the grantee party.

Considering the Evidence in context of s 237 of the Act

Interference with community or social activities – s 237(a)

1. The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence 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 interference): see Smith v Western Australia at [23]. 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 v Western Australia at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith v Western Australia at [27].

2. I accept the Government party’s arguments that the native title party has not made out any likely interference with community or social activities and as such conclude it is unlikely that the grantee party activities will interfere with the community or social activities of the native title party for the purposes of s 237(a).

Interference with sites or areas of particular significance – s 237(b)

1. In relation to s 237(b), the 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 (that is, more than ordinary) significance to the native title party in accordance with their traditions.

2. I accept the Government party’s argument that the native title party has not provided evidence to suggest there are sites or areas of particular significance on the claim/proposed licence overlap area and that even had there been such sites, based on the available evidence I accept the State’s regulatory regime in this matter would have been sufficient to protect such sites given the extensive previous mineral exploration and other activity over the area. As such I conclude there is not likely to be a real chance or risk of interference with sites or areas of particular significance in this matter.

Major disturbance to land or waters – s 237(c)

1. The Tribunal is required to make an evaluative judgment of 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 at [41]-[57]).

2. I agree with the Government party that the native title party has not made out any particular features or aspects on the proposed licence/claim overlap in this matter, and I conclude a real risk of major disturbance to land or waters is unlikely to occur, based on the available evidence.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E57/929 to Peter Romeo Gianni, is an act attracting the expedited procedure. 

Helen Shurven
Member

4 March 2014