Ashwin and Others on behalf of the Wutha People v Regis Resources Ltd

[2014] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin and Others on behalf of the Wutha People v Regis Resources Limited [2014] NNTTA 39

Application No:               WO2013/1016

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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Regis Resources Limited (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  23 April 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, 30, 31, 32, 146, 151(2), 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Acts Interpretation Act1901 (Cth), s 36(2)

Cases:Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (‘Ashwin v Gianni 2’)

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’)

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker v Western Australia No 1’)

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 1’)

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     Mr Jeff O’Halloran, State Solicitor’s Office
Government party:         Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the    
grantee party:                 Mr Victor Miasi, Regis Resources Limited

REASONS FOR DETERMINATION

1. On 19 June 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E38/2830 (‘the proposed licence’) to Regis Resources Limited (‘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 s 29 notice describes the proposed licence as comprising 27 graticular blocks (approximately 82.4 square kilometres) with a centroid of 27^o 5’ S, 122^o 12’ E,  located 122 kilometres north-westerly of Cosmo Newberry Mission, in the Shire of Laverton.

3. An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any person who, four months after the notification day, is a registered native title claimant in respect of the relevant land or waters (see s 29(2)(b)(i), s 32(3) and s 30(1) of the Act). (If there is no registered native title claimant when the s 29 notice is given, the application containing the native title claim must be filed sometime before the end of three months after the notification day included in the s 29 notice (see s 30(1)(a)(i)). The notification date for this matter was 19 June 2013. The three month period for filing a native title claim was 19 September 2013. The four month period for lodgement of objections was 19 October 2013, and by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the closing date for lodgement became 21 October 2013, the next working day.

4. The proposed licence is 100 per cent overlapped by both the Wutha people’s native title claim (WCD1999/010 – registered from 15 June 1999) and the Mantjintjarra Ngalia #2 native title claim (WC2006/006 – registered from 1 April 2009).  On 14 October 2013, the Wutha people (‘native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence. No other native title claim was filed, or objection lodged, in respect of this proposed licence. 

Background

1. On 5 November 2013, a preliminary conference was held at which parties advised they were actively negotiating an agreement in relation to the matter.  On 4 December 2013, the grantee party advised the Tribunal via email that negotiations between parties had not been successful and requested the Tribunal make a determination. I was appointed to be the Member for the purposes of determining the inquiry on 24 October 2013, and on 9 December 2013 I set directions for an inquiry.

2. In compliance with the directions, parties provided submissions and evidence: the Government party’s initial evidence on 20 January 2014 through the Department of Mines and Petroleum (‘DMP’); the native title party contentions on 24 January 2014; the grantee party’s contentions and evidence on 7 February 2014; and the Government party’s contentions on 17 February 2014.

3. On 26 February 2014, the Tribunal emailed all parties:

   The matter is scheduled for a listing hearing on Thursday, 6 March 2014. If all parties agree to the following points, this listing hearing can be vacated and the Tribunal will be in contact with you again once a determination is made:

   a)   you agree that the matter may proceed to inquiry before the Member on the papers (no further hearing will be scheduled) and

   b)   you do not intend to make any further submissions.

   ....If any party has further requests or submissions to make the listing hearing may proceed.

1. By 28 February 2014, each of the parties had confirmed via email that they agreed the matter could proceed to be heard on the papers.  Specifically, the native title party’s legal representative advised 'We agree on behalf of our client to proceed on the papers'.

Conduct of the inquiry

1. The native title party’s contentions 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 certain evidence.

2. 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 native title party’s native title determination application.

3. The native title party’s statement of contentions appears to be based on a pro forma document submitted in previous expedited procedure matters involving the Wutha People, with the only noticeable differences being the tenement details. The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are also 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 has 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 (see Ashwin v Gianni 1; Ashwin v Gianni 2; Ashwin v Doray Minerals Limited; Ashwin v Cliffs Asia Pacific).

4. 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 vDoray Minerals Limited decision, and that all parties confirmed agreement that matter could be heard on the papers, I will 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]) and I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act).

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 No 1; 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 Resources, 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 proposed licence 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:

   ·Vacant crown land, overlapping the proposed licence at 93.8 per cent; and

   ·General lease J350788, overlapping the proposed licence at 6.2 per cent.

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

   ·one cancelled temporary reserve, active between 1959 and 1964, overlapping at 7.4 per cent;

   ·four expired prospecting licences, active between 2004 and 2013, overlapping at between 0.3 and 0.9 per cent; and

   ·14 expired or surrendered exploration licences active between 1992 and 2012, overlapping the proposed licence between 0.3 and 49 per cent.

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

   ·    2 undeveloped prospects/drill holes;

   ·    one track; and

   ·    44 cliffs/breakaways/rockridges.

5. The report from the DAA Database shows there are no Aboriginal sites located on the proposed licence.

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

7. The Draft Tenement Endorsement and Conditions Extract indicates 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 Bushwin [11]-[12]) and two standard conditions imposed for licences overlapping pastoral or grazing leases. These are:

   1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

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

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

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

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

   6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   ·the grant of the Licence; or

   ·registration of a transfer introducing a new Licensee;

   advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

   I do note, in relation to conditions 5 and 6, DMP materials do not appear to show a pastoral or grazing lease overlapping the proposed licence, unless such activities are part of the general purpose lease, which no party has explicitly asserted.   There is a reference in the grantee party's work program (at 2) to the proposed licence being located on the 'Deleta pastoral lease', but without further information, there is little more that can be said on this point.  The native title party has not taken issue with the proposed conditions, or raised any issue in relation to pastoral activities.

8. 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 Water Resource Management Areas (WRMA) the following endorsements apply:

   3.   The Licensee’s attention is drawn to the provisions of the:

   ·Water Conservation Act, 1976

   ·Rights in Water and Irrigation Act, 1914

   ·Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·Country Areas Water Supply Act, 1947

   ·Water Agencies (Powers) Act 1984

   ·Water Resources Legislation Amendment Act 2007

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

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

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   6.   The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.

   In respect to Waterways the following endorsement applies:

   7.   Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   ·50 metres from the outer-most water dependent vegetation of any perennial waterway; and

   ·30 metres from the outer-most water dependent vegetation of any seasonal waterway.

   In respect to Proclaimed Ground Water Areas the following endorsement applies:

   8.   The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

Native title party’s statement of contentions

1. As stated above, the native title party’s contentions appear to be based on a pro forma document submitted in previous expedited procedure matters before the Tribunal and are outlined in full in Ashwin v Gianni 2 at [26]-[32]. As with previous matters, 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 its contentions. And, as with previous matters, the native title party simply did not prosecute this intention in any way, either directly or through their representatives. 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.

2. I refer to my decision in Ashwin v Gianni 2 where the native title party contentions are identical to this matter (at paragraphs [26]-[32].), and adopt those paragraphs for the purpose of this matter rather than re-stating those identical contentions.

Grantee party contentions and evidence

1. The grantee party makes brief submissions in relation to each subsection of s 237 of the Act.

2. In relation to s 237(a), the grantee party states (at 5):

   ·     it will not in any way interfere with the native title party’s community or social activities and has always consulted fully with the recognised traditional custodians of the relevant land;

   ·     the grantee party searches the Department of Indigenous Affairs (now known as DAA) Sites Register and undertakes ethnographic surveys prior to conducting any exploration; and

   ·     the grantee party will spend approximately ‘one week per year in the field undertaking drilling and other field activities’ and does not believe the native title party’s access to the proposed licence area will be limited by these activities.

1. In relation to s 237(b), the grantee party indicates it is fully aware of its obligations under the Act and the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and has a history of conducting extensive ethnographic and archaeological surveys, and exploration in respect to the relevant area without incident (at 6). It contends it has entered into a Regional Standard Heritage Agreement (‘RSHA’) with the Mantjintjarra native title claimants through the Goldfields Land and Sea Council, and has offered the same agreement to the native title party, who have refused (at 4).

2. In relation to s 237(c), the grantee party contends the proposed licence area is for exploration purposes only and, therefore, for low impact activities and will not involve major disturbance to the land (at 7).

3. Attached to the grantee party’s contentions is:

   ·     A report entitled Aboriginal Heritage Assessment of the Collurabbie Project Areas, North of Laverton, WA for Regis Resources NL dated July 2006 (‘the Collurabbie Report’) and conducted by Anthropologist Daniel de Gand with Mantjintjarra heritage consultants;

   ·     The Regional Standard Heritage Agreement between the grantee party and the Mantjintjarra Ngalia #2 People;

   ·     The affidavit of Mr Jens Balkau, general manager of exploration for the grantee party, sworn 7 February 2014.  Mr Balkau helpfully deposes that the proposed licence is within the area the subject of the heritage report, that field activities will occur for approximately one week per year on the proposed licence, that he believes the activities will not limit access by the native title party and he outlines the ongoing site avoidance process which the grantee party has in place; 

   ·     A proposed two year work programme for the proposed licence which entails reviewing previous exploration work and some drilling.

4. I note in relation to the Collurabbie Report, it refers to tenement E38/1104, which was previously held by the grantee party until 2012 and which overlaps the proposed licence by 49 per cent.  The Collurabbie report refers to a breakaway area within E38/1104 and that Aboriginal heritage consultants requested that a 200m radius exclusion zone be implemented in relation to grindstone fragments found in this area. That area was to be excluded from the grantee party’s proposed work program. I also note one of the recommendations of the Collurabbie Report was that ‘if there is to be an extension or any further development of Regis Resources NL work program, or new work programs’, then these should be discussed with the heritage consultants. The native title party have provided no comment, contentions, or evidence in relation to the Collurabbie Report or the grantee party’s evidence in any particularity.  I also note the proposed two year work program provided does not appear to clearly refer to the proposed licence E38/2830 throughout the document, however, it is clear from the shape of the tenement in the work program map, the description of its location and the other supporting documentation that the work program is referring to E38/2830.

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); the exploration license is for an initial term of 5 years and is renewable; and that the grantee has indicated that it will not exercise the full suite of rights conferred by section 66 of the Mining Act (at 12–16). By way of comment on this assertion, the grantee party has not explicitly indicated it will not exercise the full suite of rights.

2. The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 17). It also states that it intends to impose a condition requiring the grantee party to enter into a Regional Standard Heritage Agreement if requested by the native title party within 90 days from the grant of the proposed licence (RSHA condition)(at 18).

3. The Government party states, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statue law, regulations or conditions imposed upon them (at 22). It contends the grantee party’s submissions provide a ‘firm basis’ for concluding that the interference contemplated under the three limbs of s 237 of the Act is unlikely (at 25).

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

1. The Government party submits there no evidence to support the native title party’s assertions that certain community and social activities are carried out on the proposed licence area (at 45).  The Government party also submits (at 47) there is not likely to be direct interference with such activities given: the grantee party has stated most of its proposed exploration activities will be low impact, occupying one week per year for two years; the grantee party’s willingness to enter into an RSHA which provides for consultation prior to ground disturbing activities; previous mineral exploration in the area by the grantee party without incident; the existing general lease which the native title party’s activities have already been subject to; there are no Aboriginal communities within the area; and that exploration activities are inherently capable of coexistence with community and social activities of a native title party.  I accept all of these arguments in this matter.

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

1. The Government party quite correctly states the native title party has not produced any evidence regarding sites or areas of particular significance and provides some reasoning in relation to that (at 55-61). It contends the grantee party has a long history of operating in the area without damage or disturbance to sites; has an RSHA with the Mantjintjarra Ngalia #2 native title claimants over the area; has indicated a desire to work with the native title party to avoid any disturbance to sites of particular significance and is willing to enter into an RSHA with the native title party; and the native title party has the opportunity to enter into RSHA given the Government party intends to impose an RSHA condition upon the proposed licence (at 58-59). The Government party states that interference is not likely because there has been previous mineral exploration in the area and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area. It also contends the State’s regulatory regime under the AHA is likely to prevent interference with any area or site of particular significance (at 60-61).

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

1. The Government party states 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 grantee party has stated that most of the proposed exploration will be low impact; any ground disturbing activities (such as drilling) are intended to be conducted in a way which will not adversely impact on heritage sites; the State’s regulatory regimes will likely avoid any such major disturbance; the Government party intends to impose conditions and endorsements on the proposed licence; the proposed licence area has been subject to previous mineral exploration; and there is an absence of any particular characteristics that would be likely to result in disturbance to land or waters from the activities of the grantee party (at 70). Again I accept these arguments in the absence of contrary evidence from the native title 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 argument that the native title party has not made out any likely interference with community or social activities, even assuming the grantee party was to assert the full suite of rights available to it, 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) in this matter.

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 proposed licence. 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 previous mineral exploration activity over the area; the Government party will impose the RSHA condition on grant; and the grantee party's contentions, affidavit evidence, and documents in support of its approach, including its willingness to sign the RSHA and conduct extensive ethnographic and archaeological surveys. 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 for the purposes of s 237(b).

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 Resources 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 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 for the purposes of s 237(c).

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E38/2830 to Regis Resources Limited, is an act attracting the expedited procedure. 

Helen Shurven
Member

23 April 2014