Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another
[2019] NNTTA 72
•20 September 2019
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (20 September 2019)
| Application No: | WO2018/0709 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2012/006)
(native title party)
- and -
Buxton Resources Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT Is not AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 20 September 2019 |
| 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 29, 31, 146, 155, 237 Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 |
| Cases: | Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa [2007] NNTTA 21 (Bunuba v Ling) Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL [2009] NNTTA 109 (Bunuba v Black Mountain Gold) Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey [2010] NNTTA 89 (Bunuba v Duffield) Ben Ward; Clarrie Smith and Ors v Western Australia; Australian United Gold Nl; CRA Exploration Pty Ltd; BHP Exploration Pty Ltd; Asian Mining Nl and Sorna Pty Ltd [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Delores Cheinmora v Striker Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal #1 v Gianni) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd & Another [2015] NNTTA 41 (Tarlka v WA Mining) Walalakoo Aboriginal Corporation v Boadicea Resources Ltd [2016] NNTTA 29 (Walalakoo v Boadicea Resources) Wurrunmurra v State of Western Australia [2012] FCA 1399 (Wurrunmurra v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representatives of the native title party: | Mr Sam Legge, Kimberley Land Council |
| Representative of the grantee party: | Ms Saskia Dereuck, Independence Group NL |
| Representatives of the Government party: | Mr Matthew Smith, Department of Mines, Industry Regulation & Safety Ms Emily Archer, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E04/2527 (the licence) to Buxton Resources Ltd (Buxton). The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant the licence to Buxton. The notice indicated the State considers the grant of the licence is an act attracting the expedited procedure.
The licence covers approximately 6,537.36ha and is located entirely within the Leopold Downs Pastoral Lease – held by the Leopold Downs Aboriginal Corporation.
The licence also sits wholly within the boundaries of the Bunuba native title determination area (WCD2012/006), as determined in Wurrunmurra v Western Australia. The native title rights and interests of the Bunuba native title holders are held by Bunuba Dawangarri Aboriginal Corporation RNTBC (BDAC).
BDAC exercised its right to lodge an objection with the National Native Title Tribunal (Tribunal) against the State’s assertion that the expedited procedure applies. BDAC asserts 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.
Preliminary Matters
Directions for the conduct of the inquiry were originally made on 11 April 2019, and amended a number of times to accommodate the parties.
In accordance with directions, BDAC lodged a statement of contentions. Those contentions, and the later reply, indicate that BDAC considers the grant of the licence will likely result in interference of the kind described in s 237(b) of the Act.
Section 237(b) provides that the act is an act attracting the expedited procedure if it is not likely to interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants or holders.
BDAC has not provided contentions or evidence in relation to s 237(a) or (c). In accordance with the ‘common sense approach’ described in Ward v Western Australia, I find the grant of the licence is not likely to interfere directly with Bunuba’s community or social activities or involve major disturbance to the land or waters concerned.
All parties provided contentions and evidence in this matter. Parties confirmed they were content for me to proceed on the papers. Based on the material before me, I am satisfied the matter can be determined on the papers without the need for a hearing.
For the reasons outlined below, my decision is that the expedited procedure does not apply to the grant of the licence. As such, the normal negotiation procedure under s 31 of the Act applies. That is, the State and Buxton must negotiate in good faith with BDAC, with a view to reaching agreement about the grant of the licence.
Section 237(b): Is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?
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 (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 (Silver v Northern Territory at [91]).
(i) What areas or sites has Bunuba identified in relation to the licence area?
BDAC refers to two registered sites Djarada and Gunbi, and says that the evidence confirms there are numerous sites of particular significance located within the licence area including old meeting and camping places, rock art, artefacts, Garuwa sites, and an important men’s Junba (dreaming story) – to which strict access protocols exist.
BDAC relies on the affidavit of Mr Rory Williams affirmed 13 June 2019. Mr Williams is a Ranger for Bunuba, and Bunuba traditional owner through his ‘father’s fathers, father’ – apical ancestor Jaranggu.
Mr Williams says that the licence area is on country known as Galamanda muway which belonged to his ancestors. He says that he and his family have a responsibility to look after this country. I accept Mr Williams’ authority to speak for the area.
Registered Sites – Djarada and Gunbi
There are two sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) within the area of the proposed tenement:
·Djarada, Site ID 13654, described as a ‘Mythological’ site; and
·Gunbi, Site ID 13656, described as a ‘Camp, Water Source’ site.
Despite being registered sites, BDAC does not explain the significance of these sites. There is no reference to them in Mr Williams’ affidavit.
While no contentions are made in relation to Djarada, BDAC says that the Tribunal has previously considered evidence in relation to the Gunbi registered site on two occasions and should uphold previous findings that Gunbi is a site of particular significance to Bunuba (Reply at [5]). This is discussed below.
Camping and Meeting Places; Artefacts
Mr Williams says that old camping and meeting places for Bunuba lie within the proposed tenement area – one being Richenda Gorge. In relation to these areas he says ‘there are many artefacts throughout that area’ (at [9]). Generally he says the fishing and hunting of a range of species was conducted on the proposed tenement area although it is not clear that this is a contemporary practice.
Mr Williams says that ‘a portion of Richenda Gorge’ – a very important area under Bunuba traditional law and custom - is located on the proposed tenement area (at [10]).
Because access to the proposed tenement area is ‘not very good’ Mr Williams says it is not frequently visited by strangers which he says is good because it is a very significant place to the Bunuba (at [7]).
Water Sources
Mr Williams says that within the licence area there are a number of other Garuwa (water) sources including waterholes, springs and permanent freshwater sources (at [10]). He says (at [10]):
These Garuwa sources are connected with sacred Junba (song lines) and are home to the Ungguds (rainbow serpents) of the Ngarranggani (dreamtime).
He says the Garuwa within the licence area are connected spiritually to Garuwa located across other parts of Bunuba country and that disturbance to the Garuwa located on the licence will negatively impact Garuwa located elsewhere (at [10]). He specifically refers to places Windjana Gorge and Tunnel Creek.
BDAC says that the Tribunal has previously considered Bunuba evidence in relation to similar Living Water or Garuwa sites – saying that Mr Williams’ evidence is consistent with the evidence previously provided in those matters (Reply at [9]).
Rock Art Sites
Mr Williams says there are many rock art sites but to disclose the location would break Bunuba traditional law and custom (at [8]). One location he said he can talk about is marked on a map attached to his affidavit. He describes it as handprints of his great, great, grandfather marked on a rock (at [8]). He says rock art sites are very significant to Bunuba people, ‘especially to my Galamanda mob’.
Men’s Junba
Mr Williams says there is an important men’s Junba that runs through the licence area – but to disclose those details would be to break Bunuba traditional law and custom. Junba is referred to in contentions as a ‘dreamtime story’ (at [6]), and in Mr Williams’ affidavit as ‘song lines’ (at [10]). In other Bunuba matters determined by the Tribunal, Junba has also been referred to as a ceremonial ground.
Nevertheless, he labelled the location of the Junba at Annexure RW1 to his affidavit. That map is attached to these reasons. The markings are difficult to see but seem to cut a swath through the central and northern portion of the proposed tenement area.
He also said that the Junba is about an emu and two dogs; it is a men’s only Junba; women are not allowed access to the area; Bunuba Rangers conducting prescribed burning are not allowed to fly over the area where the Junba is located; and, the old people would refer to it as a ‘no-go zone’ (at [11]).
Generally Mr Williams says that there are many areas within the licence area ‘where even access would damage Bunuba’s spiritual connection’ (at [12]).
(ii) Are any of the identified sites or areas of particular significance to Bunuba?
As outlined above, the sites or areas referred to in the material are:
(a)Registered sites – Djarada and Gunbi;
(b)Camping and meeting places; artefacts;
(c)Water sources;
(d)Rock art sites; and
(e)Men’s Junba.
Neither the State nor Buxton concede that any of these sites are of particular significance to Bunuba.
Registered Sites – Djarada and Gunbi
The register extract includes a map which indicates that Djarada is located partially in the licence area in the very southern section, while Gunbi is wholly within the middle portion of the licence and seemingly co-located with Richenda Gorge.
As mentioned above, apart from the statement in BDAC’s initial contentions that Djarada is a registered site, there is no further reference to Djarada in BDAC’s materials. Despite Djarada being a registered site, I have no basis upon which to make a conclusion of particular significance to Bunuba within the meaning of s237(b).
The evidence BDAC has provided in relation to the importance of Gunbi and Richenda Gorge is very limited. Mr Williams deposes that Richenda Gorge is a very important place under Bunuba traditional law and custom, but provides no other information. He does not mention Gunbi at all.
BDAC asserts that the Tribunal should uphold its previous findings that Gunbi is a site of particular significance to the Bunuba people (Reply at [5]). In Bunuba v Ling, Deputy President Sumner considered the evidence of Mr Johnny Marr and was satisfied that the area of Richenda Gorge is within the Gunbi registered site area. Pursuant to s 146 of the Act, he adopted these findings in Bunuba v Black Mountain Gold. These are only two of the matters listed by BDAC and I note that in all of the matters listed, the expedited procedure was found not to apply (Reply at [30]).
BDAC’s assertion that these previous findings should be upheld in the present matter is problematic. In Bunuba v Ling and Bunuba v Black Mountain Gold, Deputy President Sumner found that the ‘Gunbi area’ identified in those matters was some 15 kilometres to the north of the Gunbi registered site and was in the vicinity of Mount Broome. Significant evidence was led in those matters in relation to the place referred to as the ‘Gunbi area’, rather than the registered site.
The State argues that BDAC has not provided any explanation as to the significance of the registered sites to demonstrate they are of special or more than ordinary significance (at [28]). Based upon the lack of evidence led in this matter in relation to the Gunbi registered site, I must agree with the State.
Camping and Meeting Places; Artefacts
The State accepts that a portion of Richenda Gorge is located in the licence area, but says that BDAC has not provided sufficient evidence to enable the Tribunal to determine the existence and location of the other camping and meeting places (at 30). Further, the State contends that there is insufficient evidence that Richenda Gorge and any other old camping and meeting places within the proposed tenement area are of particular significance to Bunuba (at [31]). I agree.
The State notes that Mr Williams deposes to the fact that there are many artefacts in the area but say that BDAC has failed to provide evidence to establish the existence, number, location and particular significance of these artefacts (at [36]). Again, I agree.
I am not satisfied that the evidence regarding camping and meeting places, is sufficiently specific to determine a location or area as one of particular significance on that basis. I am not satisfied that there is evidence sufficient to establish the identification and location of artefacts as being of particular significance.
Water Sources
In contentions, the State notes Mr Williams’ evidence concerning Garuwa (water) sources connected with sacred Junba (song lines) and that they are home to Ungguds (rainbow serpents) of the Ngarranggani (dreamtime). The State accepts there are water sources in the licence area, however, the State says BDAC has not provided sufficient evidence to enable the Tribunal to determine their location which are said to be of special or more than ordinary significance to Bunuba (at [38]).
Buxton acknowledges that water sources are important places for traditional owners however, they say that BDAC does not identify any water sources of particular significance within the affected area (at [12(e)]).
As noted above, BDAC says that Mr Williams’ evidence is consistent with that previously considered by the Tribunal in relation to similar Living Water or Garuwa sites (Reply at [5]).
BDAC argues that I should infer from the decisions in Bunuba and Black Mountain Gold and Bunuba v Duffield that there are ‘special place stories’ for Richenda Gorge’s Living Water (Garuwa) sites. I accept that Mr Williams’ evidence in relation to the Living Waters in the present matter is generally consistent with the evidence in those previous Tribunal matters. The deponents in those matters also deposed to the connection between Garuwa, Junba and the Ungguds of the Ngarranggani. However, the deponents also identified specific water sources, were able to demonstrate their particular significance, and included evidence of cultural protocols that apply.
In the present inquiry, unlike in Bunuba and Black Mountain Gold and Bunuba v Duffield, BDAC has not provided any evidence of any special stories for the water courses in the licence area or any cultural protocols that apply. Mr Williams merely says that Richenda Gorge is a very important place under Bunuba traditional law and custom, then goes on to say that there are a number of other Garuwa sources in the licence area (at [10]).
I accept that there is a connection between the water sources in the licence area, the song lines and dreaming stories, however the evidence provided by Mr Williams does not provide any specificity about which water sources in the licence area are particularly significant and why they stand out from the background of other water sources. The State argues that, while it accepts that there are water sources in the licence area, BDAC has not provided sufficient evidence to determine the location of the water sources which are said to be of more than ordinary significance (at [38]). I agree.
Rock Art Sites
As noted above, Mr Williams referred to particular rock art, the location of which is marked on a map attached to his affidavit. He describes it as handprints of his great, great, grandfather (at [8]). He says rock art sites are very significant to Bunuba people, ‘especially to my Galamanda mob’ (at [8]).
The State accepts that the evidence ‘is likely to establish that there is a rock art site at the place marked by Mr Williams’ (at [33]). However, it says that BDAC has not provided evidence of the number and location of the other sites (‘many rock art sites’), and statements that rock art sites are ‘very significant’ is too general to determine that they are of particular significance (at [34]).
Buxton comments that Mr Williams’ affidavit does not identify the number or locations of the rock art sites other than very broadly stating that there are many ‘with one such area being a registered site’ (at [12(c)]. I note that the site of the rock art as marked on the annexure to Mr Williams’ affidavit as ‘HP’, is not a registered site.
The particular significance of the rock art site is, in my view, demonstrated by the fact that its location is known and identified, its features described, and its familial connection to the deponent. I note that Mr Williams’ status as Bunuba person with traditional knowledge of the affected area is not challenged by either the State or Buxton. The rock art site stands out from the general background of other sites.
I accept that the rock art site described by Mr Williams, its location identified ‘HP’ on the map annexed to his affidavit, is a site of particular significance to Bunuba.
Men’s Junba
As noted above, Mr Williams labelled the location of the Junba at Annexure RW1 to his affidavit. I noted that the markings are difficult to see but seem to cut a swath through the centre and northern portion of the proposed tenement area.
The State says that BDAC has not provided any evidence to enable the identification of the location of the Men’s Junba (at [39]). Buxton says that to the extent that this place may be particular significance, the area can be avoided by Buxton ‘unless otherwise agreed’ with BDAC (at [12(f)]).
BDAC refers to Annexure 1 to Mr Williams’ affidavit which it says ‘can be seen to encompass both the Gunbi site and the rock art site … and extends outside the Proposed Tenement’ (Reply at [12]). As a gender restricted site, Mr Williams outlines strict access protocols associated with the site which extend to aerial access, adhered to by Bunuba Rangers conducting prescribed burning (at [13]).
Mr Williams deposes that he cannot disclose many details about the Junba – to do so would break Bunuba traditional law (at [11]). He does say the Junba is about an emu and two dogs and that it is a men’s only Junba. In the inquiry process it is open to any party to request that directions be made to restrict access to evidence and documents to such persons the Tribunal specifies (s 155 of the Act). I accept that, even with such directions, providing further evidence might conflict with traditional law – however, the Tribunal can only act on evidence and information presented.
The information concerning the Junba is in my view insufficient to conclude that the area marked on Annexure A is an area or site of particular significance. While informing me that it is about an emu and two dogs, there is no explanation of how this relates to the particular area marked, why it (the Junba) follows the particular course it takes, the sites or locations, landscape or physical environment along the way related to the Junba and, critically, why it is of particular significance to Bunuba.
Conclusion
As noted above, I have formed the view that based on the evidence in this matter, only the rock art site, its location marked on the map annexed to Mr Williams’ affidavit, is a site of particular significance for the purposes of s 237(b) in this matter.
(iii) Is the grant of the licence likely to interfere with the identified sites or areas of particular significance?
As per Silver v Northern Territory, when evaluating the degree of interference for the purposes of s 237(b), I must consider the nature of the site, the nature of the potential interference and the traditions of the native title holders.
What are Buxton’s intended activities on the licence area?
Buxton says that the proposed exploration program initially consists of the review of historical information followed by a low impact geological reconnaissance, and, ‘if results justify further exploration, geophysical surveys (ground or airborne) may be commissioned before drilling targets may be identified’ (at [16]).
The heavily redacted ‘Statement to Accompany Exploration Licence Application’ is included in material provided by the State (the Statement). The Statement identifies nickel, cobalt, copper, lead, zinc, and base metals as target minerals.
Aside from what appears in Buxton contentions (at [16]), the Statement outlines the proposed activities during Year 1 will include field mapping, rock chipping and soil sampling. The stated purpose of the exploration program is to identify and rank ‘target areas for follow up exploration and may eventually lead to drilling’. Expenditure in Year 1 is estimated to be $20,000.
Finally, it says ‘[a]ny heritage survey required would also be commissioned’. Presented this way as a subjective obligation this, in my view, adds little.
During Year 2, the Statement says that Buxton will continue the program commenced in Year 1 with the aim of clearly identifying target areas justifying further exploration. For the remaining term of the licence, it is stated that ‘[f]urther detailed POW’s are contingent on the results obtained during exploration program’. Following evaluation it says the goals and objectives are to assess prospectively and determine the level of further exploration warranted. What ‘further exploration’ might entail is not explained.
Is interference with the rock art site likely?
The State contends that the grant of the licence is not likely to interfere with areas or sites of particular significance to the Bunuba in this matter (at [43]).
The State says it intends to impose certain Endorsements and Conditions upon the grant, a breach of condition rendering the licence liable to forfeiture (at [12]-[13]). The State proposes to also impose the RSHA condition on the licence.
The relevance of the proposed RSHA condition to the mitigation of risk of interference was considered recently in Nyamal #1 v Gianni (at [63]-[67]). Most relevantly:
[65] The State argues, in effect, that the existence of the proposed condition makes interference less likely. The arguments put by the State are the same as those referred to in Marputu v Gianni at [64] and [65].
[66] To rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn.
[67] As President Dowsett stated in Marputu v Gianni at [66]:
Although the terms of any RSHA may reduce the risk of adverse impact, to some extent, they leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significantly affect” and “discuss”. As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case. In all of these circumstances, I am satisfied that the native title holders’ concerns are reasonable.
Similarly, I am also not satisfied that the proposed RSHA condition mitigates the risk in the current matter.
Having stated that BDAC ‘has provided a heritage agreement’, Buxton then say that they are ‘willing to, and has proposed to the Native Title Party to, enter into a heritage agreement’, and have no issue with it including a ‘no means no’ approach to heritage in favour of Bunuba (at [18]). Those statements by Buxton are difficult to reconcile.
Further, a willingness to enter into a heritage agreement does not better informed me as to how interference with sites of particular significance may be avoided.
BDAC says that no heritage agreement has been agreed by Buxton and the application of a ‘no means no’ approach does not extend to low impact activities – noting the ‘initial’ exploration program consists primarily of low impact geological reconnaissance (Reply at [20]).
The State also submits that interference is unlikely because of the protection afforded by the AHA (at [55]).[1] Specifically, the State says the sites ‘may fall within the definition of “Aboriginal site” pursuant to s 5(a) or (b) of the AHA’ (at [57]).
[1] In contentions at [56], the State refers to the matter of Tarlka Matuwa Piarku (Aboriginal Corporation RNTBC v WA Mining Resources Pty Ltd. While the State has correctly identified that the matter was one of my determinations, it has provided a direct quote that does not originate from that determination.
In my view, the State’s assertion that the ‘the sites’ may fall within the definition of s 5(a) or (b) adds nothing to my consideration of whether the act is likely to interfere with the rock art site. As such, I adopt the below finding in Marputu v Gianni at [64]:
In the absence of some explanation as to how the AH Act may protect the sites, I find the State’s assurance to be of little comfort in considering the likelihood of interference with them.
Further, the use of the phrase ‘protection afforded by the AHA’ is apt to mislead. An offence provision (such as s 17), which applies once damage is done, is not in my view a protection. Damage may not occur knowingly. It will often be the case that an explorer is unfamiliar with the nature of Aboriginal sites and without some other mechanism to minimise the risk may unwittingly cause harm. When the risk is mitigated, for example following the conduct of a heritage survey, the s 18 process does provide for a further assessment of the site and results in a recommendation to the Minister. Again, in my view this is not necessarily a ‘protection’ (in the context of protection against harm), but presents the possibility perhaps of avoidance.
Finally, Buxton contends that the area has a long history of being affected by mining tenements and temporary reserves for the purpose of mineral exploration (at [13]). While some activity on the licence area is likely to have occurred as a result of the grant of historical tenements, there is no evidence of the level or extent of any activities, or any agreement that may have been in place prior to the commencement of any exploration. Accordingly, I have given that contention little weight.
In relation to the rock art site, Buxton seems to misinterpret the evidence of Mr Williams found in [8] of his affidavit as a reference to a registered site. The rock art site Mr Williams speaks about (the handprints of his great, great, grandfather) is marked ‘HP’ on the Annexure to his affidavit, to the east of registered site Gunbi. Buxton says it is aware of and intends to avoid the registered sites, and says its methods of exploration will not involve any exploration activities that would be likely affect rocky outcrop areas where rock art may be present (at [12(c)]).
BDAC says there are sites where even low impact activities would cause interference including in some locations simple presence, chipping, or weathering paintings by touching them or driving vehicles in close proximity or gender restricted sites (at [23]).
Conclusion
While I hold concerns regarding Buxton’s misunderstanding regarding the evidence concerning the rock art site, I expect that the inquiry process has alerted them to the concern and risk associated with activities, particularly in that area.
The Tribunal is entitled to have regard, and give weight, to the State’s site protection regime, including the AHA. As stated above at [72], the parties have failed to identify how the operation of the AHA will impact the risk of interference in this matter.
Given the generally delicate nature of Aboriginal rock art I find that activities even close to the site would constitute interference for the purposes of s 237(b).
The only strategy for avoidance of interference identified by Buxton is compliance with the statutory and regulatory regime and an unenforceable (and non-transferable) statement of intent to enter into a heritage agreement. The program of works indicates drilling as an outcome of successful preliminary studies. While drilling itself has an obvious impact on the land, the logistics of being on site, setting in place the necessary machinery including possible a drill pad, the possible vibration and dust created, presents in my view an unacceptable risk.
As such, I find the grant of the proposed tenement poses a risk of interference with the rock art site for the purposes of s 237(b).
Determination
For the reasons stated above, I find the grant of exploration licence E04/2527 to Buxton Resources Limited is not an act attracting the expedited procedure.
Mr JR McNamara
Member
20 September 2019
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