Barbara Sturt and others on behalf of Jaru v Baibao Resources Pty Ltd and Another
[2015] NNTTA 38
•1 September 2015
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt and Others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (1 September 2015)
Application No: WO2014/0302
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
Barbara Sturt and others on behalf of Jaru (WC2012/003) (native title party)
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Baibao Resources Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 1 September 2015Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether community or social activities are carried on by the native title holders – whether the licence is likely to interfere directly with the carrying on of the community or social activities – whether there are areas or sites of particular significance to the native title holders – expedited procedure applies
Legislation: Native Title Act 1993 (Cth)
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd [2008] NNTTA 157 (‘Wurrunmurra v Caldera Resources’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Crowe v Western Australia (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2013] NNTTA 129 (‘Lungunan v Geotech International’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd [2007] NNTTA 29 (‘John v Ord Resources’)
Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd [2012] NNTTA 1 (‘Lockyer v Iron Duyfken’)
McDonald v Director-General of Social Security (1984) 1 FCR 534; (1984) 6 ALD 6; (1983) 11 SSR 114; [1984] FCA 57
Ronald Crowe & Ors (Gnulli)/Western Australia/Golden Century Mining Limited [2011] NNTTA 89 (‘Crowe v Golden Century Mining’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, ('Walley v Western Australia')
Ward and Others v Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [1996] FCA 1452 (‘Ward v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)
WF (Deceased) and Others on behalf of Wiluna v Tropical Resources Pty Ltd and Another [2014] NNTTA 104 (‘WF v Tropical Resources’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘YAC v FMG Pilbara’)
Representatives of the Ms Julia Smith, Kimberley Land Council
native title party Ms Angela Booth, Kimberley Land Council
Representative of the Mr Adam McKay, Alliance Mining Titles
grantee partyRepresentatives of the Mr Matthew Pudovskis, State Solicitor’s Office
Government party Mr Matthew Smith, Department of Mines and Petroleum
REASONS FOR DETERMINATION
[1]On 21 March 2014, the State Government of Western Australia gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licence E80/4845 to Baibao Resources Pty Ltd. The licence covers an area of approximately 194.44 square kilometres, about 87 kilometres south-west of Halls Creek in the Kimberley region of Western Australia, and is situated entirely within the boundaries of the Jaru native title claim.
[2]The inclusion of the expedited procedure statement means the licence can be granted without going through the normal negotiation procedure required under the Act unless: a) persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object; and b) if the objection is not withdrawn or dismissed, I determine the licence is not an act attracting the expedited procedure.
[3]The persons whose names appear in the entry on the Register of Native Title Claims for the Jaru native title claim have objected to the application of the expedited procedure to grant of the licence. The claim encompasses an area of 28,825.3 square kilometres. The licence is located in the west-southwestern portion of the claim.
[4]To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter. I provided parties with a copy of a map of the licence and surrounding areas produced by the Tribunal’s Geospatial Unit, to be used in the inquiry. No party objected to use of the map. No party requested a hearing, and I am satisfied the matter can be determined on the basis of the written materials provided by the parties.
[5]A decision that the expedited procedure should apply to a grant means Baibao Resources can proceed to explore on the licence without negotiating with the Jaru native title claimants. A decision that the expedited procedure does not apply means Baibao Resources must negotiate in good faith with the Jaru native title claimants prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
[6]The Tribunal must determine whether the grant of the licence is an act attracting the expedited procedure by reference to the following criteria (see s 237 of the Act):
(a)Is the grant likely to interfere directly with the community or social activities of the Jaru native title claimants?
(b)Is the grant likely to interfere with areas or sites of particular significance according to the traditions of the Jaru native title claimants?
(c)Is the grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
[7]I must answer these questions by making a predictive assessment of whether the grant of the licence is likely to have those effects. In performing this assessment, I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see YAC v FMG Pilbara at [15]-[21]; Walley v Western Australia at [8]-[9]).
[8]The Jaru native title claimants do not contend the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters. The State submits there is nothing in the nature of the licence that would likely result in any major disturbance to land or waters. Based on the evidence before me, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
[9]The Jaru native title claimants do argue there is a high probability the grant of the licence will interfere directly with the social or community activities carried on in the area by members of the claim group. They also assert the grant of the licence is likely to interfere with sites of particular significance to members of the claim group. I must decide these issues.
Is the grant likely to interfere directly with the community or social activities of the Jaru native title claimants?
[10]In assessing the answer to this question, I need to concern myself with: whether there are any community or social activities that may be affected by the grant; what other activities may be carried out on the licence; and are those other activities likely to interfere directly with community or social activities?
Are there any community or social activities that may be affected by the grant of the licence?
[11]The first thing I must determine is what relevant community or social activities take place on the licence. The Jaru native title claimants contend they hunt, gather bush tucker and bush medicines, camp, fish and pass on intergenerational teaching knowledge to Jaru children within the licence area. To support these contentions they provide evidence in the form of affidavits from Mrs Marilyn Ryder and Mr Eddie Yaloot. Mrs Ryder deposes that her Aboriginal name is Ngawana and that she was born in Halls Creek. Her father was from the Lamboo/Mgunjiwirri area of Jaru country and her mother is from the Lamboo area of Jaru country. Mrs Ryder derives her right to speak for Jaru country through her parents and grandparents as they taught her about Jaru country as she grew up, and she has indicated familiarity with the licence area after being shown a map which identified the area.
[12]Mr Yaloot deposes that his Aboriginal name is Jangala and that he was born in Derby. Mr Yaloot states he derives his right to speak for country from his parents and his grandfather who taught him about Jaru country while he was growing up, and has indicated he is familiar with the licence area after being shown a map which identified the area. Mr Yaloot states he is a senior traditional owner for this area of country, a boss, and can speak for country.
[13]I note neither the State nor Baibao Resources has raised any objection to Mrs Ryder’s or Mr Yaloot’s evidence and I accept they both have the requisite authority to speak for country on behalf of the Jaru native title claimants.
[14]Mrs Ryder states she has walked across the licence area with her parents and grandparents to hunt and collect bush tucker. She states she now visits the area by vehicle with her children and grandchildren using the Old Ballara Road track and they regularly still hunt and collect bush tucker in the licence area. I note the Old Ballara Road runs through the north-east portion of the licence. Mrs Ryder states they collect various types of bush tucker, including conkerberries, bush bananas and bush tomatoes, particularly in the north-east part of the licence area which is rich for such vegetation. Mrs Ryder cites the area of the licence around Ngunjiwirri/Mount Dockrell as good for collecting bush tomatoes. Mount Dockrell is a few hundred metres to the east of the licence, in the centre of a common reserve which also partially overlaps the licence. I note Mrs Ryder has attached a map of the area to her affidavit and marked many spots on the map on the north-east part of the licence area as indicating where bush tucker is collected.
[15]Mr Yaloot concurs with Mrs Ryder’s evidence, stating Jaru native title claimants use the Old Ballara Road track to get to the licence area, and says this area of country is called Ngunjiwirri. He also states he walked across the licence with his parents and grandparents to hunt and collect bush tucker. Mr Yaloot states he now visits the area to hunt and collect bush tucker with his children and grandchildren, and collects bush onion (‘junda’).
[16]Mrs Ryder states she and her children hunt on the licence area and like this area for hunting as there are lots of turkey. Mr Yaloot concurs with this and says he, his children and grandchildren regularly go hunting in the licence area for goanna, emu and turkey as there is abundant prey for a good feed.
[17]Mrs Ryder states many Jaru native title claimants like to hunt for bullocks in the licence area, however Lamboo Station locks the gate on Old Ballara Road to stop people stealing bullocks. I note Lamboo Station overlaps the licence by almost 65 per cent. Mrs Ryder says the Jaru native title claimants must see her nephew, who helps run the station to open the gates for access. Mr Yaloot concurs and states the Jaru native title claimants must ask for the gates to be unlocked before they can go hunting and gather bush tucker on Lamboo Station.
[18]Fishing and camping also appear to be activities undertaken by the Jaru native title claimants in and around the licence. Mrs Ryder states her parents and grandparents used to take her fishing and camping along Willy Willy Creek and she now takes her children and grandchildren there to do the same. Mrs Ryder identifies areas of the creek located above White Hill Bore (also called ‘Manjal’) as a place that is beautiful and good for gathering bush tucker. Mrs Ryder also states her children go there without her, but she does not indicate with what frequency the area is visited for certain activities. White Hill Bore is located on the south-west portion of the licence. I also note the State’s evidence indicates there are three non-permanent major water courses and 43 spring/soak/rockholes/waterholes on the licence. I note from the maps attached to the affidavits of Mrs Ryder and Mr Yaloot that Willy Willy Creek crosses the licence, running somewhat across its middle in an east-west direction, and their maps identify waterholes along the part of the waterway that crosses the licence.
[19]Mr Yaloot concurs with Mrs Ryder regarding fishing and camping along Willy Willy Creek, and says that the Jaru native title claimants go fishing for bream and big eels in the waterholes inside the licence area. He adds the Jaru native title claimants also love to go swimming and camping along Willy Willy Creek due to the presence of fresh water and its beauty. He identifies a site near White Hill he calls ‘Munja’ which he states is very beautiful and where the Jaru native title claimants like to go camping, swimming and fishing all the time. This may or may not accord with the place Mrs Ryder calls ‘Manjal’, but does seem to have similar features.
[20]Mrs Ryder states there are bush medicines located all over the licence, and identifies the leaves and roots of the bush orange tree (called ‘Gooldidja’) as being used for medicine, particularly the leaves which are burnt to treat colds. Mrs Ryder also identifies the usefulness of the mud found where a Spinifex bush grows from an anthill to treat a sore joints or headache, and says this was taught to her by her grandmother. Mrs Ryder states her family still collects this medicine from the licence area.
[21]Mr Yaloot supports the evidence of Mrs Ryder as he relates that his sister collects conkerberries all over the licence area, which are bush medicine used to treat people sick with fevers.
What activities does Baibao Resources intend to carry out on the licence?
[22]The licence, if granted, will authorise Baibao Resources to:
·enter and re-enter the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals;
·explore for minerals, and carry on such operations and works in the licence area as are necessary for that purpose including digging pits, trenches and holes, and sinking bores and tunnels;
·excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances from the land within the prescribed amount or in such greater amount as the relevant Minister may approve in writing. The prescribed amount is 1,000 tonnes over the life of the licence; and
·take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), water from any natural spring, lake, pool or stream situate in or flowing through the licence area and to sink wells or bores and take water so obtained for domestic purposes and for any purpose in connection with exploring for minerals on the land: see s 66 of the Mining Act 1978 (WA).
[23]Baibao Resources has chosen not to make any contentions and has not provided information about the activities it proposes to undertake on the tenement area. I am, therefore, entitled to presume it will exercise the rights conferred by the grant of the licence to their full extent, subject to the conditions and endorsements attached to the licence on grant (see Silver v Northern Territory at [25]-[32]; Western Australia v Smith at 51-52; Murray v Money at [53]-[58]). The conditions and endorsements to be attached to the licence are listed in Appendix 1.
Is the grant of the licence likely to interfere directly with community or social activities?
[24]The Jaru native title claimants contend the grant of the licence is likely to interfere directly with the community and social activities identified. The evidence must disclose a real risk or chance of direct interference with community or social activities. The interference must be substantial in its impact on community or social activities. I am not entitled to have regard to impacts that are trivial or which are not relevant to the carrying on of the community or social activities (see Smith v Western Australia at [26]).
[25]It appears from the evidence that Jaru native title claimants utilise the activities of hunting, gathering, fishing and camping to pass on intergenerational knowledge about these activities to the younger generations. What is unclear from the evidence is whether these activities can only take place on the licence area or whether these activities are able to take place elsewhere on Jaru country. I note the total size of the Jaru native title claim is approximately 28,825 square kilometres and the size of the licence is 194.44 square kilometres. While I acknowledge that the Jaru native title claimants have provided evidence they carry out specific activities on the licence, such as hunting and medicine gathering, the claimants have provided no evidence to indicate the activities they have talked about could not be carried out in other areas of the Jaru native title claim.
[26]I also note the restrictions on Jaru native title claimants accessing Lamboo Station indicate the ability of claimants to carry out their community and social activities, at least on that part of the licence, have been interfered with to some extent.
[27]The State argues that while it accepts Mrs Ryder, Mr Yaloot and their families go to the licence for the purpose of hunting, gathering, camping and fishing, the Jaru native title claimants have presented no evidence to indicate the frequency of these activities or the duration of their visits. I agree with this argument. Information as to the frequency and duration of the activities would allow me to assess the likelihood of the activities of Baibao Resources on the licence interfering with the ability of the Jaru native title claimants to carry out those activities, and it is information which is within the particular knowledge of the claimant. In Ward v Western Australia, Carr J approved of the decision of Woodward J in McDonald v Director-General of Social Security and said at [26] that:
...where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence.
[28]In the absence of such information from the Jaru native title claimants, it becomes difficult for me to make that assessment. In the circumstances, I must assume in the absence of evidence from the Jaru native title claimants to demonstrate otherwise, the duration and frequency of the visits of the claimants to the licence area is such that the activities of Baibao Resources are unlikely to directly interfere with the carrying out of those activities on the licence area.
[29]Taking into account the evidence and information presented in this matter, I conclude the grant of the licence is unlikely to interfere directly with the community or social activities of the Jaru native title claimants.
Are there any areas or sites of particular significance that may be affected by the grant of the licence?
[30]This criterion of s 237 of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular (that is, more than ordinary) significance to the Jaru native title claimants in accordance with their traditions within the licence. If I am able to answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.
[31]Mrs Ryder does not provide any evidence in relation to areas or sites of particular significance on the licence, apart from mentioning there are men’s sites, and she defers to Mr Yaloot to provide the evidence.
[32]Mr Yaloot states that along the right (east) side of the licence, running in a strip along that side and near Mount Dockrell, are sacred dreaming sites which are accessible to Jaru men only. He states that some of the sites are within the licence, and while the sites have important dreamtime stories attached, he cannot relate that information as they are stories told only to initiated Jaru men.
[33]The Jaru native title claimants refer to my decision in Lockyer v Iron Duyfken (at 54-55) as being suggestive of the need to decide special men places in this matter are of particular significance and to ensure no one should go to these places. However, in Lockyer v Iron Duyfken, detailed evidence was provided about relevant sites which were in the proposed grant area for that matter, including stories which related to those sites, and their significance was outlined. In the present matter, such detail has not been provided.
[34]I note from the Tribunal’s map of the licence and surrounds, there are several registered sites running along the right side of the licence area up to and around Mount Dockrell. Some of these sites appear to be inside the licence and some appear to be outside it. The State conducted searches of the Register of Aboriginal Sites, maintained by the Department of Aboriginal Affairs in accordance with the Aboriginal Heritage Act 1972 (WA), and those searches revealed the following registered sites are either wholly or in part within the boundaries of the licence:
·Mamu Durdgool (site ID 12415, artefacts/scatter, ceremonial, repository/cache open access, no gender restrictions);
·Esor Burial (site ID 12433, skeletal material/burial, open access, no gender restrictions);
·Manjal (site ID 12938, ceremonial, mythological, closed access, men only); and
·Dockrell Camp (site ID 12977, man-made structure, open access, no gender restrictions).
[35]The description of the site ‘Manjal’ would appear to fit the description of the men only sites Mr Yaloot mentioned and supports his evidence. Mrs Ryder refers to Manjal as a place that is beautiful and good for gathering bush tucker, although I do note it is a men only site. I note Mr Yaloot has attached a map to his affidavit upon which he has marked an oval area next to Mount Dockrell and the licence area in black pen to identify the rough area where those sites are, and this area is in the approximate location as those registered sites listed above. The State makes the point that Mr Yaloot’s markings are outside the boundaries of the licence. I am not minded to be overly harsh in relation to this, in that it is an approximate indication and there does seem to be a correlation between Mr Yaloot’s evidence, the registered sites observed on the Tribunal’s map and Mr Yaloot’s rough markings. This suggests some of the areas referred to are at least partially inside the licence.
[36]However, Mr Yaloot did not identify any specific sites, nor provide any evidence which would assist me to ascertain if any of those sites are sites of particular significance to the Jaru native title claimants. I understand Mr Yaloot’s warning that the stories associated with those sites are for Jaru men only, but the Tribunal has power under the Act to make directions to protect gender restricted evidence from being accessed by those of the wrong gender. It is possible for Mr Yaloot or his representative to submit some level of evidence to a) identify the sites he refers to with some specificity and b) provide evidence in a confidential way that would enable the Tribunal to understand why these are sites of particular significance to the Jaru native title claimants.
[37]Mr Yaloot also mentions an old camp where the Jaru old people used to travel that is special to Jaru people. Mr Yaloot provides no further information than that. I am left to wonder if perhaps this is the Dockrell Camp registered site, but without further information I can do no more than guess at what this place is, why it may be significant and whether or not it is inside the licence.
[38]Finally, Mr Yaloot talks of the significance of Hangman Creek. Mr Yaloot states the area is very important to Jaru people as it is where white men used to hang Aboriginal people. Mr Yaloot says the place is very special to Jaru people and cannot be damaged as it holds many memories for them.
[39]I note from the maps attached to the affidavits of Mrs Ryder and Mr Yaloot, as well as from examining the map prepared by the Tribunal, that Hangman Creek is outside the licence area to the north, although it is very close to the northern licence border. There appears to be a registered site where Hangman Creek intersects Old Ballara Road just north of the licence area (Hangman Tree, site ID 13081, historical, skeletal material/burial, open access, no gender restrictions).
[40]The question that arises is whether the dreamtime story sites near Mount Dockrell, the old camp, and the Hangman Creek sites are areas or sites of particular significance to the Jaru native title claimants in accordance with their traditions. This question is a precondition to the inquiry into whether the grant of the licence is likely to cause interference with areas or sites of this kind (see YAC v FMG Pilbara at [125]). An area or site of particular significance is one of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34-35). If an area or site is significant, it must be known and able to be located and the nature of its significance explained (see Silver v Northern Territory at [91], referring to Western Australia v McHenry).
[41]There is simply no evidence upon which I can base a determination that the Mount Dockrell men only dreamtime story sites are sites of particular significance. I have this same issue with the old camp site, in that I have no evidence upon which to determine whether it is a site of particular significance to the Jaru native title claimants, or even whether it lies within the licence. I, therefore, find the Mount Dockrell men only sites and the old camp site are not sites of particular significance for the purposes of this inquiry.
[42]In relation to Hangman Creek, there is sufficient evidence available for me to find this is a site of particular significance to the Jaru native title claimants. The Tribunal has, on previous occasions, found that sites of the massacre of Aboriginal people are sites of particular significance (see for example WF v Tropical Resources at [61]; John v Ord Resources at [27]-[28]; Wurrunmurra v Caldera Resources at [41]-[43]; Crowe v Western Australia at [75], [100]; Crowe v Golden Century Mining at [49], [53], [57]; Lungunan v Geotech International at [28]-[29], [39]-[40], [44]).
[43]As I have found Hangman Creek is a site of particular significance in this matter, I must now consider whether there is likely to be (in the sense of a real risk of) interference with that site. The main thing to note in relation to the Hangman Creek site is that the Hangman Tree registered site and Hangman Creek itself are outside the licence. The Jaru native title claimants have not provided any evidence that any activities of Baibao Resources within the licence would affect Hangman Creek or the Hangman Tree site. I also note protection of Hangman Creek and other waterways is strengthened by the conditions and endorsements the State will place upon the grant of the licence.
[44]In addition to the State's proposed conditions and endorsements to be applied to the grant of the licence, a further condition will be imposed by the State requiring Baibao Resources to execute in favour of the Jaru native title claimants a Regional Standard Heritage Agreement if requested to do so by the claimants. The State argues this condition will allow the Jaru native title claimants to choose a RSHA from one of the other representative regions, noting the Kimberley region does not have a standard RSHA.
[45]I have considered each of these RSHAs and note that all would require Baibao Resources to notify, consult and, if necessary, carry out surveys with the Jaru native title claimants. For example, the Central Desert RSHA requires surveys to be undertaken if ground disturbing works are contemplated in any area not previously subject to a survey under the RSHA. The Pilbara/Geraldton RSHA requires no survey only where: low impact exploration is undertaken; parties agree; the native title party waives all or part of their rights under the agreement; or a heritage survey has already been conducted in the area. The South West RSHA requires a survey request to be issued should ground disturbing works be contemplated. The Goldfields RSHA requires parties to consult with each other to decide which areas require a survey. If a low impact activity is intended, a site avoidance survey or a site identification survey without cultural detail may be conducted. If more significant activity is intended, then a site identification survey without cultural detail is required.
[46]For the reasons listed at [44]-[46] above, I find there is not likely to be (in the sense of a real risk of) interference with the Hangman Creek site or the Hangman Tree registered site.
Conclusion
[47]Although the Jaru native title claimants carry on certain community and social activities within the licence, I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. The evidence does not establish the existence of areas or sites of particular significance to the native title holders which may be affected by activities of Baibao Resources on the grant of the licence. In addition, there is no evidence the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Determination
[48]The determination of the Tribunal is that the act, namely the grant of exploration licence 80/4845 to Baibao Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member1 September 2015
APPENDIX 1: CONDITIONS AND ENDORSEMENTS ON GRANT OF LICENCE
Conditions
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:
a.the grant of the Licence; or
b.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.
Endorsements
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related 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 being 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 Surface Water Areas (Fitzroy River and Tributaries) the following endorsements apply:
8.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9.All activities to be undertaken with minimal disturbance to riparian vegetation.
10.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
12.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
13.The Licensee’s attention is drawn to provisions of the Aboriginal Heritage Act 1972 and any regulations thereunder.
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