Barbara Sturt & Others on behalf of Jaru and Maggie John & Others on behalf of Malarngowem v Sarag Pty Ltd and Another
[2018] NNTTA 46
•22 August 2018
NATIONAL NATIVE TITLE TRIBUNAL
Barbara Sturt & Others on behalf of Jaru and Maggie John & Others on behalf of Malarngowem v Sarag Pty Ltd and Another [2018] NNTTA 46 (22 August 2018).
Application No: | WO2017/0705; WO2017/0706 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Barbara Sturt & Others on behalf of Jaru (WC2012/003)
(first native title party)
- and –
Maggie John & Others on behalf of Malarngowem (WC1999/044)
(second native title party)
- and -
Sarag Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 22 August 2018 |
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 or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 237 |
Cases: | Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG v Yindjibarndi’) Maggie John and Ors v Geological Resources and Another [2013] NNTTA 151 (‘John v Geological Resources’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara’) Silver v Northern Territory[2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walalakoo Aboriginal Corporation and Another v Boadicea Resources Ltd and Another [2016] NNTTA 29 (‘Walalakoo v Boadicea’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘WDLAC v Teck Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the first native title party and second native title party: | Ms Angela Booth and Mr Ashley Mumford, Kimberley Land Council |
| Representative of the grantee party: | Mr Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives of the Government party: | Ms Catherine Wallace, State Solicitor’s Office Mr Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5086 (the licence) to Sarag Pty Ltd (Sarag). The State of Western Australia (the State) considers the grant of the licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 214.94 square kilometres in the Shire of Halls Creek. The Jaru (WC2012/003) and Malarngowem (WC1999/044) native title claimants (collectively, the native title parties) hold native title rights and interests in the whole of the licence area. The Jaru native title claim (Jaru) overlaps the licence by approximately 5.51 per cent and the Malarngowem native title claim (Malarngowem) overlaps the licence by approximately 94.49 per cent. Jaru and Malarngowem exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. Sarag and the State argue the expedited procedure should apply.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Sarag and the State must negotiate in good faith with a view to reaching an agreement with Jaru and Malarngowem about the proposed grant of the licence
Preliminary evidentiary matters
The native title party material
The native title parties submitted a statement of contentions, attaching the affidavit of Mr Ashley Mumford, and the unsworn affidavits of Ms Velma Banks and Ms Lily Banks. Mr Mumford, a solicitor employed at the Kimberley Land Council (KLC) says following a discussion with Ms Velma and Ms Lily Banks, he drafted an affidavit based on their statements. Due to the limited availability of staff at the KLC and the logistical difficulties travelling to where they reside, Mr Mumford states it was not possible for any staff at the KLC to meet with Ms Velma Banks and Ms Lily Banks prior to the compliance date of this material to have the affidavit sworn. In a statement of agreed facts and issues, all parties agreed Ms Velma Banks and Ms Lily Banks identify as Jaru people and have authority to speak for the licence area. I accept Ms Velma and Ms Lily Banks have authority to speak on behalf of the Jaru native title holders for the licence area and accept the unsworn affidavits.
The native title parties also submitted a statement of contentions in reply to submissions made by Sarag and the State.
The grantee party material
Sarag submitted a statement of contentions along with a Quick Appraisal of the proposed licence from the Department of Mines, Industry Regulation and Safety, and a map of a previously granted exploration licence subject to the proposed licence area.
The State’s material
The results from the Department of Aboriginal Affairs’ Aboriginal Inquiry System indicate that there are no known registered or recorded sites or other heritage places in the licence area. The licence is overlapped by Pastoral Lease N050582 (Sophie Downs) at 52.4 per cent, and Pastoral Lease PL N050018 (Alice Downs) by 5.5 per cent. The licence area overlaps an existing exploration licence held by Sarag by 3.0 per cent and has previously been the subject of a number of exploration licences and temporary reserves. The initial term of grant for E80/5086 is five years, and is renewable.
The State outline in their contentions that a condition will be placed on the licence where the native title parties may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes. Further, the State intend to impose an additional condition that prior written consent of the Minister responsible for the Mining Act 1978 (WA) is to be obtained before commencing any exploration activities on ‘Regeneration of Eroded Areas in Ord River Dam Catchment Area Reserve 28538’, which overlaps the licence area by 42.13 per cent, along the eastern side of the licence.
The State also submitted an agreed statement of facts and issues on behalf of all parties which included: agreed facts and issues; issues and facts that are not agreed; and overall issues. Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for further oral hearing. All parties indicated they were content to proceed on the papers.
Facts and Issues
I must base my decision on the s 237 criteria. The parties agreed on a number of facts and procedural issues. Agreed facts which were not material to my decision making process or conclusions have not been replicated in this determination. Agreed facts which are material are referred to throughout this decision and outlined below:
·Velma Banks and Lily Banks and at least some of the other members of the native title parties conduct community and social activities on the licence area, including at Crocodile Gorge and Albert Edward Range. Those activities include fishing, hunting, camping, living off the land and gathering bush food and resources.
Parties also agreed there were a number of contentious issues relevant to the s 237 criteria, which are outlined below:
·Whether Crocodile Gorge and Albert Edward Range are located within the licence area.
·Whether the grant of the licence is likely to interfere with the carrying on of community and social activities at those sites and on the licence area.
·Whether Crocodile Gorge and Albert Edward Range are sites or areas of particular significance for the purposes of s 237(b).
·Whether access by third parties to Crocodile Gorge and Albert Edward Range, other than in accordance with the traditional protocols of the native title parties, will cause interference with those sites in accordance with their traditional laws and custom.
·Whether the regulatory regime, which includes the Aboriginal Heritage Act 1972 (WA) and any RSHA, is sufficient to prevent unauthorised access to Crocodile Gorge and Albert Edward Range.
·Whether it is appropriate that the Tribunal presume Sarag will, throughout the life of the licence, fully exercise its rights under the grant of the tenement.
·What weight should be given to the evidence or prior mining tenements (including expenditure on those tenements) and existent pastoral leases in the Tribunal’s consideration of this matter of whether it can infer:
oThe grant of the licence is likely to cause interference with the carrying of community and social activities on the licence area; and
oUnauthorised access to Crocodile Gorge and Albert Edward Range by Sarag will constitute interference for the purposes of s 237(b).
I deal with each of the contentious facts and issues below, and throughout the remainder of this decision.
·Albert Edward Range
The location of Albert Edward Range is not raised as an issue in the State’s or Sarag’s separate contentions and evidence. All parties submitted maps depicting Albert Edward Range located within the south eastern portion of the licence area. I conclude that Albert Edward Range is within the licence area.
·Crocodile Gorge
The State do not accept that Crocodile Gorge is located within the licence area. They argue that, based on map interpretation and labels, ‘all or at least a substantial part of the Gorge does not fall within the proposed tenement’ (at 32),. Ms Velma and Lily Banks describe Crocodile Gorge as falling within the licence area (at 5). The native title parties’ contentions outline that the licence contains waterways which are connected to Crocodile Gorge, which is within the licence. The native title parties’ contentions in reply say a satellite image shows that the only significant gorge appearing near to the ‘Crocodile Gorge’ label on the map is a gorge appearing to be wholly within the licence area, slightly to the left of the label. I appreciate that traditional owners of the native title parties have located Crocodile Gorge within the licence, and given the mapping and satellite images, it appears at least part of the geographical area of a gorge falls within the licence. I accept the area the native title parties refer to as Crocodile Gorge is at least partly on the licence.
In addressing s 237 of the Act, I must make a predictive assessment in the context of s237 of the Act. I look at what is likely to occur as a result of the grant and decide whether there is a real chance 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 Walley v Western Australia at [8]–[9]).
(a)Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
What community or social activities do the native title parties undertake on the licence?
The native title parties’ contentions indicate the licence area is accessed regularly, particularly during the dry season, by the native title parties living in the nearby township of Halls Creek. I note that Halls Creek is approximately 60 kilometres south of the licence area, and that Ms Velma and Lilly Banks live at Halls Creek.
The native title parties state the particular geography of the licence area, (which includes Crocodile Gorge), is known and navigated for community and social activities such as hunting, fishing, camping and gathering bush medicine resources. The native title parties say Crocodile Gorge is a significant hunting and fishing ground. Ms Velma and Lily Banks note that they live off the land on the licence area with their family for hunting, fishing and use the resources of the land for sustenance. They state winter is the best time to go out there: ‘We hunt for turkeys and goannas out there on the Tenement Area’ (at 11). They say there is also fish and bush fruit, and Easter is a good time to take the family camping and fishing: ‘We catch herrings, black bream, catfish, prawns, crabs and freshwater mussels’. I note from the States materials there are seven major watercourses and at least 31 spring/soak/rockholes identified in the licence.
The native title parties contend their community and social activities are likely to be disrupted and interfered with if Sarag access and use the licence area. They say access by the grantee party to the licence area without consultation with the native title parties is likely to lead to direct interference with the native title holders who access the area. Ms Velma and Lily Banks state (at 14) ‘We have a responsibility to look after those places to make sure that people don’t go there without the permission of traditional owners and so that no harm is done to people or to the land.’ Further they assert this may detrimentally affect the availability of flora and fauna in the licence area, which the native title parties rely on for sustenance.
What activities do Sarag propose to undertake on the licence?
Sarag state their intended work program will be low impact and will include prospecting, conducting field reconnaissance, geological mapping, surface geophysics, collection of samples, soil sampling, aerial surveys and ground based surveys. Sarag estimate they will spend less than one month on ground during any one year period until such time as a heritage survey is conducted. They note this limited time on the ground, coupled with advance notice, will significantly reduce the likelihood of interference with the community and social activities of the native title parties. Sarag state they are not adverse to completing heritage surveys before the start of any low impact activity, and will not exercise their rights conferred by the grant of the licence for any activity that is not considered ‘low impact’ until such time as a heritage survey has been conducted. Sarag say they will notify the native title parties of any ground access and will not enter any areas that are deemed to be significant to the native title parties ‘acting reasonably and within reason’ (at 6). They assert the grantee party are willing to consider excluding graticular blocks from the licence that contain identified sites or areas.
The State proposes to grant the licence subject to a number of endorsements and conditions. The State also proposes to include the RSHA condition (as outlined at [9] above). The State notes the area of the proposed licence has been subject to prior exploration activity. It contends the exploration activities planned by Sarag are not likely to have any real disruptive effect upon any community and social activities, and state the native title parties have the opportunity to invoke the proposed RSHA condition.
Is the grant of the licence likely to interfere directly with the community or social activities of the native title parties?
The State and Sarag accept the native title parties engage in community and social activities on the licence area, but, as noted above, question whether Crocodile Gorge is in fact within the licence area. I have determined that at least part of Crocodile Gorge is within the licence. The State asserted that if I did make such a finding, there is no evidence of the regularity with which the native title parties access the proposed licence areas, where they occur, or why the activities cannot occur elsewhere.
The State contend there is no evidence as to how the grant of the proposed licence would detrimentally affect the availability of flora and fauna in the licence area. They say while the evidence indicates that some members of the native title parties may go to the licence area and live off the food that is caught there ‘there is no evidence or suggestion that the NTP [native title parties] requires food from the proposed tenement area in order to survive outside of that activity’ (at 33).
The State note the native title parties’ contentions assert that members of the native title parties live in the nearby township of Halls Creek which allows for regular access to the proposed licence area for community and social activities. The State contend this statement is not supported by the evidence and note the Tribunal has found the existence of an Aboriginal community near a proposed licence may mean the activities are undertaken in the area more frequently, but this must be supported by evidence and detail of activities in this inquiry (see John v Geological Resources at [42]). I accept the evidence that members of Jaru go to the licence ‘often’, and the context of the information provided by Ms Velma and Lily Banks indicates the activities occur regularly, particularly given the relatively close proximity to their home at Halls Creek. I believe the evidence presented in this inquiry can be distinguished from that presented in John v Geological Resources because the camping activities in this inquiry occur near the particularly important area of Crocodile Gorge - the native title parties say they sustain themselves while camping there from the hunting and fishing available, and the activities are tied to looking after the sites and areas on the licence, including Crocodile Gorge. These activities seem to be intimately connected to the native title parties’ traditions.
Regarding the native title parties’ contention that accessing the licence without prior consultation will cause substantial interference with community and social activities, the State note Sarag have indicated they will notify the native title parties of any proposed on-ground work and provide detailed information (including dates) about those works before commencing them. They say the proposed licence is overlapped by two pastoral leases, which means access to the area is already able to occur by people who are not members of the native title parties. The native title parties submit the overlapping pastoral leases are not evidence that interference for the purposes if s 237 has occurred (see WDLAC v Teck Australia at [123]). They contend even if interference had occurred because of the grant of the pastoral leases, it is not open for the Tribunal to infer that further disturbance would not constitute interference for the purposes of s 237(a) (see Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara at [41]).
I accept pastoral licences do overlap the licence, however, it appears those licences do not overlap the area to the south east, where Crocodile Gorge and Albert Edward Range are situated. That area is on or near where the licence overlaps the Ord River Dam Catchment Area Reserve 28538, where Sarag can conduct exploration activities with the consent of the relevant Minister.
The State note Sarag have estimated their field program will be less than one month per year on the proposed licence area until a heritage survey is completed. The State say that in the absence of particular evidence suggesting otherwise, hunting activities of the native title parties can co-exist with the exploration activities of Sarag. The State assert the proposed licence area is relatively small compared with the size of the Jaru and Malarngowem claim areas, and assert there is no evidence that they cannot conduct their community and social activities only within the proposed licence area.
The native title parties say while their evidence outlines community and social activities of hunting and fishing, resource collection and camping occur at Crocodile Gorge, their evidence also suggests these activities occur on the proposed licence area generally: ‘Our family goes out to the Tenement Area to live off the land’ (at 13). They contend that where proper protocols in accordance with the native title parties’ traditions are not followed (for example Sarag accessing the licence area without permission), this could have flow on effects for the land and the environment. Ms Velma Banks and Ms Lily Banks state (at 15) the ‘mining company should not go out to the Tenement Area without…getting the permission of the Traditional Owners. If they don’t, bad things might happen to them, and to us traditional owners’.
Conclusion
Sarag say they will not exercise their full suite of rights available under the Mining Act until a heritage survey has been conducted, and that would be triggered by conducting any significant ground disturbing activity. The heritage survey process goes more to identifying sites and areas of heritage concern to a native title party, and not necessarily to whether or not social and community activities of a native title party can be conducted on an area. This has been a most difficult matter to decide, as I appreciate Sarag have no intention of interfering with the native title parties traditional activities. However, given that they will be able to exercise their full suite of rights at some time during the grant period, and given the stated importance of the licence to the traditions of the native title parties, particularly the areas near Crocodile Gorge, I have concluded there is a real risk that exploration activities are likely to interference with the social and community activities of the native title parties.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]). The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
What areas or sites have the native title parties identified in relation to the licence area?
The native title parties state Crocodile Gorge and its surrounds, including the Albert Edward Range, is an area of particular significance to the native title parties. They say Crocodile Gorge is a place of special spiritual and cultural significance to the native title parties, particularly as a place where ‘rayi’ spirits reside to which member of the native title parties have a particular connection. Ms Velma Banks and Ms Lily Banks state (at 5) ‘Everyone in the Banks family each has a little rayi they are connected to.’
Are any of the identified areas or sites of particular significance to the native title parties?
Results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS) show there are no registered or recorded sites within the licence area. However, there are many sites or areas that are of particular significance to traditional owner groups that have not been listed on the AHIS (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
The native title parties state they believe spiritual and physical sanctions will be visited on people who enter the proposed licence area without following the protocols of the native title holders, and that Crocodile Gorge, the Albert Edward Range and the licence in general are protected by spiritual beings. Ms Velma Banks and Ms Lily Banks state (at 8) if ‘you go out to Crocodile Gorge without the permission of the Traditional Owners, something bad will happen to you’. They assert there is a bigfoot spirit at Crocodile Gorge, and ‘That bigfoot lives all through that country at Albert Edward Range’. The native title parties state the bigfoot is an old man looking after country ‘telling people not to go to Crocodile Gorge’.
The State say they accept Crocodile Gorge is a significant place to the native title parties, but do not accept that it is located within the proposed licence area, or that the native title parties have shown it to be a place of particular significance for the purposes of s 237(b). It contends the native parties’ evidence in relation to ‘Crocodile Gorge and its surrounds’ is insufficient and does not support the assertion that it includes the whole section of the Albert Edward Range within the proposed licence area (see Walalakoo v Boadicea). The State argue it is unclear how the evidence relating to Crocodile Gorge applies to the Albert Edward Range area, which does not directly intersect with the Gorge. It contends that if the Tribunal should determine Crocodile Gorge is located wholly or partially within the proposed licence area, the native title parties have not provided sufficient evidence to establish it is a site of ‘particular significance’.
The State argue that the native title parties’ evidence fails to establish the grant of the licence will interfere with Crocodile Gorge. The native title parties contend interference with this area would be caused by Sarag’s mere presence upon the proposed licence area, unless permission is sought by members of the native title parties. The State further argues the native title parties are not suggesting that there are any sites on country that would be interfered with for the purposes of s 237(b) by Sarag accessing the land without permission, and contend the areas or sites which require permission are not identified. Sarag state they will notify the native title parties about proposed on ground-works before commencing them, and will advise the native title parties of dates when they will be on-ground.
The State contend the evidence of prior mining activity on the proposed licence area is relevant to the question of whether access by Sarag would amount to interference. The State do not provide all details as to the nature and extent of the mining activity that may have been conducted as that information is not publicly available, but do provide details of expenditure over two prior dead tenements to illustrate that there has been disturbance to that area. It also contends the native title parties do not provide evidence that such previous use of the area has had a detrimental effect on the areas or sites described.
The native title parties’ reply argues that the evidence establishes Crocodile Gorge is on the licence (either wholly or substantially) and it is of particular significance to their communities, and that it, and other sites of particular significance, have boundaries which can only be identified by the native title parties. They say the segment of Albert Edward Range which runs through the licence is of particular significance. They argue that past interference does not preclude future interference from actually being interference for the purpose of s 237.
They also say the assurances given by Sarag and the proposed RSHA condition suggested by the State are insufficient to protect their groups cultural and heritage concerns. In particular, the native title parties outline that Sarag is not bound by any of its assurances, because no agreement exists between the explorer and the native title parties. The argument is outlined that what may appear to be low impact or non- interfering exploration activities from Sarag’s point of view, are activities which are likely to cause interference from the native title parties point in view, in the context of the special nature of this area relevant to their traditions. They say this includes prospecting, field reconnaissance, taking samples, surveys and drilling. There is also no information as to how close to Crocodile Gorge Sarag will conduct their activities.
In respect of the State’s argument that the need for asking permission before coming onto the licence area, or the site of Crocodile Gorge in particular, is tantamount to a veto on exploration activities, the native title parties say the need to seek permission highlights the sensitive and important nature of the area, and the flow of permission is between the native title parties and the spirits in the area, rather than between Sarag and the native title parties.
Conclusion
As with my conclusions on s 237(a), this has been a difficult decision. I accept that Crocodile Gorge is at least partly on the licence, in the south east portion, and mapping indicates Albert Edward Range runs within the east side of the licence. The south east portion of the Range is adjacent to or very near part of Crocodile Gorge. I accept that the south east portion of the Range, and Crocodile Gorge, are of particular significance to the native title parties, because it is a sacred place and has connection with spirits which have important meaning to the traditions of the native title claimants for this area.
I accept there is a real risk or chance of interference with those areas, should Sarag conduct exploration activities on or near them. As the Federal Court noted in FMG v Yindjibarndi (at [76]):
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘… in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
I believe the native title parties in this inquiry have just sufficiently made out that, from the point of view of their traditions, the area around Crocodile Gorge and near Albert Edward Range are of particular significance to them, and there is a low bar in terms of what would constitute interference.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was one of the grounds raised in the native title parties’ initial objections, and the native title parties subsequently indicated they did not wish to pursue this ground. As such, their evidence and submissions do not specifically address the issue of major disturbance.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E80/5086 to Sarag Pty Ltd is not an act that attracts the expedited procedure.
Helen Shurven
Member
22 August 2018
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