BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter - [2012] NNTTA 32

NATIONAL NATIVE TITLE TRIBUNAL

BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter, [2012] NNTTA 32 (26 March 2012)

Application No: WO11/316

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

BW (deceased) and Others on behalf of Bunuba (WC99/19) (native title party)

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The State of Western Australia (Government party)

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Callum Baxter (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 26 March 2012

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

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA), s 17
Mining Act 1978 (WA), ss 20(5), 63
Environmental Protection Act 1986 (WA)
Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127
Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [1996] FCA 1452
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representative of the Ms Jacki Cole, Kimberley Land Council

native title party: Ms Ania Maszkowski, Kimberley Land Council

Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the
grantee party: Mr Matthew Clohessy, Emerald Tenement Services

REASONS FOR DETERMINATION

On 17 November 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2054 (‘the proposed licence’) to Callum Baxter (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is 276.97 square kilometres located 12 kilometres north of Fitzroy Crossing in the Shire of Derby-West Kimberley. The proposed licence overlaps the Bunuba registered native title claim (WC99/19 – registered from 20 August 1999) by 64.62 per cent and the Gooniyandi Combined 2 registered native title claim (WC00/10 – registered from 23 April 2001) by 1.49 per cent. No other native title claims or determination areas overlap the proposed licence area.
On 17 March 2011, an expedited procedure objection application was lodged with the Tribunal by BW (deceased) and others on behalf of Bunuba (‘the native title party’) in respect of E04/2054 (designated as WO11/316).
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
A preliminary conference was held on 19 April 2011, which was followed by a prolonged period of negotiations, during which requests were made on behalf of the native title party, and then on behalf of the State, to extend the period for compliance with directions. The native title party lodged its evidence and contentions on 19 September 2011. Final compliance dates for the Government party were 6 February 2012; for the native title party 13 February 2012; and for the grantee party 20 February 2012. At a status conference held on 1 February 2012, the grantee party requested that the matter proceed to inquiry.
The Government party lodged its evidence and contentions on 18 January 2012, with supporting documentation lodged by the Department of Mines and Petroleum (‘DMP’) on 28 December 2011.
At the Listing Hearing on 23 February 2012, parties agreed that the matter can be determined ‘on the papers’ (that is without holding a hearing). In addition, the Government party requested a further 21 days (that is, up to 15 March 2012) in which to file contentions in reply to the contentions and evidence lodged by the native title party. The matters were referred to inquiry and on 29 February 2012 I was appointed by the Hon C J Sumner, Deputy President, as the Member for the purpose of conducting the inquiry. The Government party’s request was referred to me, I approved it on 1 March 2012, and parties were advised accordingly. On 13 March 2012 the Government party filed a reply to the native title party contentions (the ‘Reply’).
The grantee party filed contentions on 13 March 2012. These contentions were filed outside final compliance dates for this matter (as referred to in [5]). However, I note at the listing hearing on 1 February 2012, this matter was heard with another where compliance dates for the grantee party on that other matter were extended to 19 March 2012. Due to the possible confusion with compliance dates, the fact that the grantee party was the only party in this matter yet to request an extension, if an extension had been requested it is likely it would have been granted, and there has been no objection from other parties, I accept the contentions as per s 109 of the Act. On 14 March 2012 the Government party submitted a response to the grantee party contentions. This did not appear to be in compliance with the directions made on 1 March 2012 for the State to ‘file contentions in reply to the evidence by the native title party on 19 September 2011’ [emphasis added], or any other directions which had been made. Accordingly, I do not accept that response to the grantee party’s contentions as part of the evidence in this matter.
I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).

Legal principles

Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)      the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of` the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court of the Federal Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in relation to the proposed act

The Government party has provided documents including: a statement of contentions; tengraph plans with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (‘DIA’); copies of the tenement applications; copies of the proposed endorsements and conditions of grant; and tengraph quick appraisals.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·   Vacant Crown Land overlapping at 1.4 per cent;
·   Two Historical Leases (369/429 and 396/440) at 2.3 and 9.0 per cent respectively;
·   Four Pastoral Leases (3114/1248 – ‘Fossil Downs’, 3114/573 – ‘Brooking Springs’, 3114/930 – ‘Jubilee Downs’, and 398/810 – ‘Gogo’) at 5.2, 60.0, 2.0 and 8.6 per cent respectively;
·   Two Conservation Parks (CR43100 and CR43101) at 4.4 and 18.3 per cent respectively; and
·   Two parcels of Road Reserve at less than 0.1 per cent each.

Government party documentation also establishes that the proposed licence is wholly subject to a National Heritage Listing under the jurisdiction of the Department of Environment, Water, Heritage and the Arts (NHL/106063, ‘The Kimberley’); however, according to the Department’s website, the National Heritage Listing is now referred to as ‘The West Kimberley’.

DMP evidence indicates that services affected on the proposed licence include: one undeveloped deposit, unspecified/unknown (Fossil Downs); one undeveloped prospect, drillhole (Brooking Springs); seven undeveloped prospects, unspecified/unknown (Bacchus Gossan, Triodia Gossan, Triodia Gossan North, Brooking Springs 1, Brooking Springs 2, Brooking Springs 3 and Brooking Springs 6); two geodetic survey stations (SMM-L 2 and SMM-T 215); one minor road (unsealed over and under six metres); 24 tracks; two airfield runways (one unknown); two buildings (one unknown, the other named Brooking Springs); two fence lines; one yard; one feature identification dot (Geikie Hill); one minor topographical feature (sinkhole); nine rock outcrops; one sand area; six cliffs/breakaways/rockridges; one well/bore with windmill; one earth dam; three named major non-perennial watercourses (Fitzroy River, Margaret River and Homestead Creek); 13 unnamed major non-perennial watercourses; 64 minor non-perennial watercourses; and 25 springs/soaks/rockholes/waterholes.
Government party documentation also establishes in respect of the proposed licence: one ‘live’ mining lease granted in 1992 overlapping at 2.2 per cent; nine dead exploration licences granted between 1994 and 2007 and surrendered or expired between 1997 and 2010, overlapping at between 0.9 per cent and 58.9 per cent; and two dead mining leases granted between 1992 and 1993 and surrendered between 1994 and 1995, overlapping at 2.5 per cent and 3.0 per cent respectively. The proposed licence is overlapped by 160 dead mineral claims granted between 1972 and 1982, each of which were surrendered, cancelled or expired within five years of being granted. Government party documentation also establishes that the proposed licence is subject to a live petroleum exploration permit issued in 2007 which overlaps the tenement area by 85.8 per cent and to a Discrete Area Release overlapping at 0.2 per cent.
A statement in support of the application for the proposed licence submitted to DMP by the grantee party and included in the materials provided to the Tribunal by DMP states the following:
‘Proposed method of exploration and exploration program
The proposed exploration program is aimed at locating economic deposits of gold and/or base metals.
This will comprise the use of aerial photography, geological mapping, soil geochemistry, sediment and rock chip sampling, geophysical and remote sensing surveying.
The first phase of the exploration, budgeted at $85,000 will be:
·historical data compilation, GIS geoscientific datasets         $10,000
·airborne magnetics and radiometrics, geophysics               $27,000
·geological mapping, reconnaissance & sampling                $33,000
·Admin, rent etc  $15,000’
Tribunal mapping does not indicate any Aboriginal communities within the proposed licence; however, there is an Aboriginal community (Junjunwa) approximately seven kilometres from the southernmost boundary of the proposed licence.
The Register of Aboriginal Sites maintained by the DIA pursuant to the Aboriginal Heritage Act1972 (WA) (‘AHA’) documents three registered sites within the proposed licence and claim overlap area:
·   12687 – Fitzroy River, mythological, open access;
·   12700 – Oscar Range, painting, artefacts/scatter, archaeological deposit, water source, open access; and
·   12701 – Oscar Range, painting, open access.
In addition to the registered sites listed above, the following DIA ‘other’ heritage place is located within the proposed licence (but outside the overlap area with the Bunuba claim):
· 27861 – Saddlers Yard (Guladji), mythological, open access (lodged).

The following two Registered Sites also sit within the proposed licence but outside the overlap area:

· 12457 – Margaret River 1, artefacts/scatter, rockshelter, open access;
· 12458 – Margaret River 2, artefacts/scatter, infilled fissures, open access;

A draft tenement endorsement and conditions extract for the proposed licence included in the Government party’s documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licence in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (conditions 5-6).
Further conditions are to be imposed as follows:
‘7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation Parks 43100 and 43101.
8. No interference with Geodetic Survey Stations L 2 and T 215 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9. No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.’
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the proposed licence:
‘1. The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environment Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’
Government party contentions (at 5(e)) indicate that a further condition will be placed on the grant of the proposed licence requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (RSHA) as follows:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba the applicants in Federal Court application no. WAD6133 of 1998 (WC99/19) and/or the Gooniyandi Combined #2, the applicants in Federal Court application no. WAD6008 of 2000 (WC00/10), such request being sent by pre-paid post to reach the Licensee’s address c/-Emerald Tenement Services, PO Box 383, North Perth WA 6906 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba and/or the Gooniyandi Combined #2, as the case may be, the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (eg the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHA) offered by the Kimberley Land Council.’

The wording of the RSHA is somewhat ambiguous, as the Kimberley Land Council itself does not ‘offer’ an RSHA. Nevertheless, if the wording means that the native title party can, if it chooses, offer any endorsed RSHA to the grantee party upon grant of the proposed licence, then it would enable the native title party to undertake site surveys prior to ground disturbing activity taking place on the proposed licence and offers some level of heritage protection.

Evidence provided by the native title party

The submissions of the native title party include the affidavit of Mr George Brooking (Manjanjirr) affirmed on 7 September 2011 and made in the following terms:
‘I, George Brooking, Pensioner, of Bungardi Community, on Brooking Springs Pastoral Lease, near Fitzroy Crossing in the State of Western Australia, affirm:
1.My name is George Brooking. My Aboriginal name in Manjanjirr. I have junggurra skin, or subsection identity. I was born in the 1930s at Gurrangaja, on Brooking Springs Pastoral Lease. Brooking Springs Homestead is located near Gurrangaja. I am also called Banggardi-wanggu (which means, “Banggardi-belonging-to”) and Manmaral-wanggu (which means, “Manmaral-belonging-to”). My mother was an elder sister of the mother of Stanley Holloway, my cousin. They were two Gooniyan manayi, or sisters.
2.I am one of the senior people for the Bunuba Combined Native Title Determination Application (WC99/19).
3.I know the area where Callum Baxter, “the grantee party”, have applied for Exploration Licence Number E04/2054, “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The exploration licence area falls within Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime. It is Bunuba Country all the way around Fitzroy Crossing. It is also Gooniyandi Country.
5.There is a community very close to the tenement area called Junjuwa. People from that community go out that way all the time. So do people in Fitzroy Crossing. I have a block very close to the tenement area near Geike Gorge and I use the tenement area every day. My family also use the tenement area every day.
6.There is good hunting and fishing in many parts of the exploration licence area. We hunt wawanyi or goanna and wirrayi or hill kangaroo at the top of Brooking Gorge and inside the exploration licence area. This is good milha or bush meat. We find wawanyi all over our country, including inside the exploration licence area. We use jinali or spears to hunt the fish and animals.
7.We also fish in Brooking Gorge, mainly for barramundi. Young people go there to hunt.
8.We often take the kids there to show them how to fish and hunt, and to show them the country, and to teach the boys and girls our law and culture.
9.We collect different types of mayi, bush tucker and bush medicines on my country, including the exploration licence area. Inside the exploration area we collect bush grapes and marna, bush plums during the wet season to eat. We also collect bush medicine from the area. One is the black stuff that comes out of ant hills, we burn it and it smells like Vicks. There is also a plant we collect to use like an antisceptic [sic] for sores – we use the juice, I collect in the tenement area and keep it at my house. We also collect sap from the white gum trees, we peel the bark back and put the gum in it and drink it like tea, afterwards you eat and the tea makes you healthy. In the season we collect mandarra gum, we also take wax from bininybalu Spinifex, which we call barrala. We take it to use for medicine, for coughs and colds and it is good for little babies. We grind it up until it is very fine and then you smear it on your chest and temples. You can get some bush medicines like lemongrass that you boil up and drink. It’s good for your chest. You can put it in a bucket and shower in it as well. It has a strong smell.
10.If the mining companies come here, it will interfere with some of our community life. If they drill holes, they might damage some sites, which is why we need to tell them first where they can and can’t go. If they come to do drilling, we won’t be able to camp there anymore and it will affect how we carry out our law and ceremony, we can’t have our ceremonies or teach our young people the way we want to if the explorers are there.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni. I know the exploration licence area very well. There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community.
12.Close to the limestone rocks which run right through the middle of the tenement area from the north to the south there are lots of limestone caves that are special to our people. They are Dreaming sites, and they are full of stories.
13.These places are important to us. We don’t want like [sic] people getting to [sic] close to that area.
14.In the limestone caves you see culloden, dead people, bones and heads. Very important sites to us. The dead people are all those who were massacred over many years of fighting. There are important sites all through there this area [sic].
15.There are a lot of rock paintings and cave paintings in and around the limestone rocks in the middle of the tenement area. There is Law in those paintings which tells us how we have to do things.
16.Old people told us to look after that Country. We don’t want to upset them.
17.We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it. We are dawa-ngarri gurama look-out-gida muay nyiringga. This means, ‘we are the boss men looking out for our country’. If mining mob are ‘hard blokes’, they must come and see us and might be we will say ‘ngayi’ or ‘No’. If they are ‘soft blokes’, we might talk with them and make an agreement.
18.We used to have Law ceremonies on and around the exploration license area. There are ceremony grounds there. These are very important places. They are not marked for malngarri or white people (literally, “red having”), but we all know where they area. Mining people must not damage these places.
19.We still visit these places. Last year in the dry time, we took 4 boys and four girls out there for Law and culture, to teach them about the food and medicine. We recently took Cathy Freeman out there to show her the special places.
20.The limestone ranges are very important place [sic] for us, the whole area is a special place including in and around the exploration licence area. There are old people buried in the rock in around the area. There are cave paintings all throughout the rocks. Malngarri have to ask somebody to go up there. It is generally a place where people should not go.
MAJOR DISTURBANCE TO LAND OR WATER
21.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted to exploration licence.
22.Malngarri must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. Our old people used to ‘sell’ gunyju or bamboo spear shafts, through wirnan or trading relationships. Some of the people we trade with were and still are strangers in our country. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. That’s why we are frightened to tell malngarri because they have got their own way. We know that malngarri don’t follow our Law. That’s why malngarri have to slow down and come and meet with us.
23.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we frightened about marlngarri coming to our country because they just jump in anyway.
24.If malngarri damage a site, artefact or living water or a ngarranggarni or Dreaming tree, we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country. We feel gandayi-yarda yarranggu muay. That means: ‘we feel sad for our country’.
25.If blackfellas damage any ngarranggarni or Dreamings in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again. But I can’t remember this happening.
26.Malngarri cannot help themselves to our country. They have got to ask us first. If we say, ‘Ngayi’ or ‘No’, they must leave our country, but if we say, ‘Yuwayi’ or ‘Yes’, they can stay and talk with us. If they make rarrgi or ‘money’ out of my country, they can maybe give my community a little bit because they are taking something from our country our land [sic]. If we go digging in malngarri’s country, they will put limba or ‘the police’ onto us. Blackfella have no rights.
27.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our ngarranggarni or Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, and helping my community. This is because we are looking after this country, not strangers.
28.We don’t like the explorers coming out to country, but we know that we can’t stop them. We just want to make sure that if they come, they get permission and don’t damage the sites. We are worried because in the past we have had companies coming to take samples from special sites and from the rock places. This is why we don’t want explorers coming by themselves, we want to accompany them.

Although Mr Brooking only refers to one annexure, the affidavit is in fact accompanied by two annexures, one of which is a map of the proposed licence generated using the Tribunal’s online Native Title Vision service (marked ‘Appendix A’) and the other a Tengraph map of the proposed licence (marked ‘Appendix B’).
The evidence of Mr Brooking is uncontested and I accept it. Mr Brooking states that he is one of the ‘senior people’ for the Bunuba native title claim. I accept that Mr Brooking has authority to speak on behalf of the native title party.

Evidence and Contentions provided by the Grantee Party

The grantee party filed contentions on 13 March 2012. The grantee party states that he is fully aware of the obligations of tenement holders under the AHA. Annexed to the grantee party’s contentions is a map showing the area which the grantee party intends to explore. According to the map, the work area stretches north to south through the centre of the proposed licence between the Brooking Gorge and Geikie Gorge conservation parks and bordering the rocky outcrops to the north and north east of the proposed licence. I note that a significant portion of the work area is located outside the Bunuba claim. The grantee party states that access to the proposed licence will be via Geikie Gorge Road and the station tracks indicated on the map. DMP evidence confirms 24 tracks and a minor unsealed road on the proposed licence.
The grantee party does not describe in detail the activities it intends to carry out on the proposed licence, but states that ‘[e]arly stage work programs are not likely to require ground disturbing activities’. This information is supplemented by the material provided by DMP, in which the grantee party’s statement in support of the exploration licence outlines that the exploration will aim at ‘locating economic deposits of gold and/or base metals’ and confirms this will include ‘the use of aerial photography, geological mapping, soil geochemistry, sediment and rock chip sampling, geophysical and remote sensing surveying’.
The grantee party contentions note that there is no State endorsed RSHA in respect of the proposed licence, but objects to the agreement proposed by the Kimberley Land Council on the basis of the ‘Community Benefits’ clause. The grantee party states that the payments under the ‘Community Benefits’ clause ‘should not be required and are not required in RSHA in other areas of the State’. I am unclear as to what the grantee party means when they say ‘[t]here is no State endorsed RSHA’ as the State has, in the Government party Reply, referred a number of times to their intention ‘to place the proposed RSHA condition on the proposed tenement’ (for example at 12(a) and 21(b)), and indicates that the native title party can then enforce this condition. I am not, therefore, sure if the grantee party is saying that in their view there is no relevant RSHA in respect of this proposed licence. Nevertheless, I do note that the Government party has indicated that it will impose their proposed condition (at 5(e) of their contentions) on the grant of the proposed tenement, which the native title party can then request formally. I also note that the grantee party states that it is agreeable to undertaking a heritage survey if required in order to ensure that Aboriginal sites are not disturbed.

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to them are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’) at [23]. Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [23]. The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA) (‘Mining Act’), including the provisions of s 63 concerning conditions deemed to affect exploration licence, and s 20(5) relating to exploration activity on pastoral leasehold areas, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party regarding the area of land concerned. The Government party also points to the fact that no Aboriginal communities are situated on the proposed licence. I note the Tribunal’s previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to s 237 assessment (see for example Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:
‘The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal Reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.’
In its contentions, the native title party refer to the following statement by Carr J in Ward and Others v State of Western Australia and Another (1996) 69 FCR 208; (1996) 136 ALR 557; [1996] FCA 1452 (‘Ward’) at 223 in support of the view that the mere existence of the grantee party on the proposed licence in circumstances where there has been no negotiation or consultation between the native title party and the grantee party is likely to result in direct interference with the carrying on of community or social activities, even in the absence of direct physical interference:
‘[T]he very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds 10 km away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed at the thought of such activities.’

Following Ward, s 237(a) of the Act was amended in 1998 to substitute ‘carrying on of the community or social activities’ for ‘community life’. The Tribunal has considered the effect of the amendment on several occasions: see for example Walley at [13]-[21] citing Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1. In Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11 (31 January 2007) at [22], Deputy President Sumner considered that ‘[i]t is now settled law that the s 237(a) must have some negative consequences for the carrying on of community or social activities. Feelings of distress or concern about the activities are, whether of a spiritual nature or otherwise, not on their own sufficient.’ In Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118 (25 August 2008), Neville MacPherson at [25], the Tribunal concluded that ‘Carr J’s statement is no longer applicable.’ I adopt those findings for the purpose of this determination.

The evidence of Mr Brooking notes, in relation to community or social activities:
·   ‘There is a community very close to the tenement area called Junjuwa. People from that community go out that way all the time. So do people in Fitzroy Crossing. I have a block very close to the tenement area near Geike Gorge and I use the tenement area every day. My family also use the tenement area every day’ (at 5);
·   ‘There is good hunting and fishing in many parts of the exploration licence area. We hunt wawanyi or goanna and wirrayi or hill kangaroo at the top of Brooking Gorge and inside the exploration licence area ... We find wawanyi all over our country, including inside the exploration area’ (at 6);
·   ‘We also fish in Brooking Gorge, mainly for barramundi. Young people go there to hunt’ (at 7);
·   ‘We often take the kids there to show them how to fish and hunt, and to show them the country, and to teach the boys and girls our law and culture’ (at 8);
·   We collect different types of mayi, bush tucker and bush medicines on my country, including the exploration licence area. Inside the exploration licence area we collect bush grapes and marna, bush plums during the wet season to eat. We also collect bush medicine from the area’ (at 9);
·   ‘If they [mining companies] come to do drilling, we won’t be able to camp there anymore and it will affect how we carry out our law and ceremony, we can’t have our ceremonies or teach our young people the way we want to if the explorers are there’ (at 10); and
·   ‘We used to have Law ceremonies on and around the exploration license area. There are ceremony grounds there ... We still visit these places. Last year in the dry time, we took 4 boys and four girls out there for Law and culture, to teach them about the food and medicine’ (at 18-19).
I accept that Mr Brooking and his family frequently access the proposed licence to carry out community and social activities such as hunting, fishing, teaching Law and culture and gathering bush food and medicine, and other members of the native title party also access the area often. The area in and around Brooking Gorge appears to be the focal point of these activities. As Government party documentation illustrates, Brooking Gorge and the surrounding area fall within Conservation Park 43100. Proposed condition 7 provides that exploration activities cannot be commenced on Conservation Parks 43100 and 43101 without the prior written consent of the minister responsible for the Mining Act. As the Government party submit in its contentions (at 4(b)-(d)), mining on reserve land requires ministerial consent following consultation with and the concurrence or recommendation of the minister, body or person in which the control or management of the reserve is vested. Additional conditions may also be imposed. The evidence provided by the grantee party in relation to its intended work programme shows that it does not plan to carry out exploration activities within the conservation parks. In this respect, I find it unlikely that the grant of the proposed licence will interfere directly with the community or social activities carried out in and around Brooking Gorge.

It is possible, given that Mr Brooking and his family reside near Geike Gorge and the proposed work area straddles the area between Geike Gorge and Brooking Gorge, that the grant of the proposed licence could interfere with Mr Brooking’s access to Brooking Gorge, particularly as the proposed work area appears to cover several of the roads and tracks that pass through the tenement area. However, as the exploration activity proposed by the grantee party appears to be intermittent and temporary in nature, I find it unlikely that the grant of the proposed licence would interfere in a substantial or more than trivial way with the Brooking family or native title party access to Brooking Gorge.
Mr Brooking does state that community and social activities such as hunting and gathering bush food and medicine are carried out in areas other than Brooking Gorge and the surrounding area. It is not clear from the evidence that these activities are in any way peculiar to or uniquely connected with the area covered by the proposed licence. The Government party’s Reply asserts that ‘such activities are not so tied to the exploration licence area that they are not, and cannot, be carried out elsewhere in the claim area of the objectors’ (at 6).
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way: Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]. Given the total area of the Bunuba claim area is approximately 5,773 square kilometres, I consider that the size of the area of the grantee party’s proposed activities within the proposed licence area, in the context of the much larger native title claim, makes it less likely that exploration activity will interfere with the community or social activities described by Mr Brooking.
Mr Brooking also refers to ceremony grounds that Bunuba people still visit and which are used for teaching children about Law and culture. However, Mr Brooking does not give any indication of how frequently these places are visited or where they are located. This is referred to in the Government party Reply, which asserts that this information is ‘too vague to be able to be properly relied on by the Tribunal’ (at 6). In the absence of more specific evidence about the location of the ceremony grounds or the frequency with which they are visited by members of the native title party, it is impossible for me to predict the extent to which the activities proposed by the grantee party will directly interfere with the activities associated with those places.
In reaching a conclusion in relation to s 237(a), I have also taken account of past and present mining and pastoral activities that are likely to have affected, and be likely to continue to affect, the community or social activities of the native title party. This is referred to in the Government party Reply (at 4). Although the evidence suggests that exploration activity in the area has not been extensive, a number of exploration licences have been granted since the mid 1990s, and a significant portion of the proposed licence is currently subject to a petroleum exploration permit. Furthermore, Government party documentation establishes that the proposed licence is subject to several pastoral leases. Accordingly, the carrying on of the community and social activities described by Mr Brooking is subject to the lawful activities of the holder of the exploration permit and the pastoralists. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the grant of the exploration permit and the pastoral leases will already to some extent have interfered with the native title party’s community and social activities: Tarlpa at [122].
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) in this matter.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [22], there are three Registered Sites within the overlap between the claim area and the proposed licence. However, the presence of Registered Sites in the area does not mean that there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The intention of the AHA is to protect all Aboriginal sites, whether on the Register or not.
The Government party contentions rely on the provisions of the Mining Act relating to reserves (at 4(b)-(d)), the conditions and endorsements it will impose (and are deemed to be imposed under the Mining Act) on the grantee party to protect areas or sites of significance (at 4(e)-(f), 5(e), 6 and 22) and the effectiveness of the AHA and DMP guidelines to protect Aboriginal sites (at 21). The Government party states (at 22) that its proposed conditions add weight ‘to the effectiveness of the existing regulatory regime and makes interference with sites less likely to occur. It is, therefore, relevant to the Tribunal’s task of weighing up the nature and extent of sites and whether the government party’s regulatory regime is sufficient to make interference with them unlikely’, and refer to Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion’) in support. This is reiterated in the Government party Reply to the native title party’s contentions (at 21(a)(i)), where they say any site will be protected by s 17 of the AHA.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has often found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’) at [81]-[91]). The Tribunal must consider, based on the facts of a particular case and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance which are found to exist. In ButcherCherel, the Tribunal found that although there were sites of particular significance in the area of the proposed licence, and even in the absence of an RSHA, AHA protection was sufficient because of the evidence of the intentions of the grantee party to protect any sites of significance and consult with the native title party before ground disturbing work was undertaken.
In Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (24 February 2011) (‘ASJ Resources’) at [48]-[53], I considered and adopted parts of the Western Australian Auditor-General’s Report entitled Ensuring Compliance with Conditions on Mining – Report 8 – September 2011 (‘the Report’). The parts that I adopted relate to conclusions reached by the Auditor-General about the adequacy of the inspection regimes administered by DMP and DIA with respect to conditions attached to mining leases and the protection of Aboriginal sites under the AHA. In ASJ Resources, I noted that, although the Report concerned mining activities, the findings contained in the Report could reasonably be extrapolated to exploration activities. As in ASJ Resources, my adoption of those parts of the Report is relevant here, as the Government party again relies on the regulatory regime to support its argument that interference or disturbance of the kind contemplated by s 237(b) is unlikely.
In ASJ Resources, I considered that, contrary to the Government party’s submission, the Report suggests that it is difficult to determine whether a particular grantee party has failed to comply with the regulatory regime. Nevertheless, I accepted the Government party’s submission that weight must be given to the evidence provided in relation to the proposed activities of each grantee party, and this approach is reinforced in the Government party’s Reply to the native title party’s contentions (at 2). In the present matter, the grantee party has provided evidence about the activities it intends to carry out on the proposed licence and its attitude towards heritage protection. In light of this evidence, I do not find that the grantee party is likely to contravene the regulatory regime in this matter.
The evidence of Mr Brooking notes the following:
·   ‘There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community’ (at 11);
·   ‘Close to the limestone rocks which run right through the middle of the tenement area from the north to the south there are lots of limestone caves that are special to our people. They are Dreaming sites, and they are full of stories ... These places are important to us.’ (at 12-13);
·   ‘In the limestone caves you see culloden, dead people, bones and heads. Very important sites to us. The dead people are all those who were massacred over many years of fighting. There are important sites all through there [sic] this area’ (at 14);
·   ‘There are a lot of rock paintings and cave paintings in and around the limestone rocks in the middle of the tenement area’ (at 15);
·   ‘We used to have Law ceremonies on and around the exploration licence area. There are ceremony grounds there. These are very important places. They are not marked for malngarri or white people (literally, “red having”), but we all know where they are. Mining people must not damage these places’ (at 18); and
·   ‘The limestone ranges are very important place [sic] for us, the whole area is a special place including in and around the exploration license area. There are old people buried in the rock in around the area. There are cave paintings all throughout the rocks. Malngarri have to ask somebody to go up there. It is generally a place where people should not go’ (at 20).
The majority of Mr Brooking’s evidence regarding sites relates to the significance of the limestone ranges that cross through the proposed licence. By limestone ranges, I take Mr Brooking to be referring to the rocky outcrops that from run north to south through the western portion of the proposed licence abutting Geikie Gorge Conservation Park, as indicated on the map prepared by the Tribunal. Without further information from the native title party it is difficult to precisely locate these sites.
I accept that, on the basis of Mr Brooking’s evidence, the limestone ranges and, specifically, the caves located within the ranges may be sites of particular significance, whether taken individually or as a whole. However, the map provided by the grantee party indicates that the proposed work area does not encroach on the limestone ranges. Furthermore, the grantee party’s evidence states that access to the exploration targets will be achieved by way of Giekie Gorge Road and station tracks. In addition, this is reinforced by the Government party Reply (at 18), where it is accepted that the material provided by the native title party is not sufficiently particularised, nor is there basis for the sites being of ‘particular significance’. Having considered this evidence, I do not find that the activities proposed by the grantee party are likely to interfere with the sites associated with the limestone ranges.
Mr Brooking also refers to the existence of ‘ceremony grounds’ on the proposed licence, but notes that these sites are not marked for ‘malngarri or white people.’ The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b): see for example Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43]. In the present mater, while I accept these sites are significant to the native title party, I do not consider that the evidence before me discloses a sufficient basis to reach a conclusion regarding the particular significance of these sites or the likelihood of interference. Accordingly, I am unable to find that there is a sufficient connection between these sites and the activities proposed by the grantee party to justify a determination that negotiations under s 31 are required in this case.
The evidence provided by the grantee party indicates awareness of its responsibilities under the AHA and its positive attitude towards site protection. The grantee party’s stated intentions regarding heritage protection are substantiated by the prolonged negotiations that preceded this determination. In the course of this inquiry, the Tribunal was informed on several occasions that the grantee party was prepared to accept the heritage agreement offered by the Kimberley Land Council but would not agree to the payment of ‘community benefits.’ I am satisfied that the regulatory regime will be sufficient to ensure that interference with sites of particular significance is unlikely.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.

Major disturbance to land and waters (s 237(c))

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
In its contentions, the native title party submits (at 34-35) that the activities permitted by an exploration licence under s 66 of the Mining Act, including the drilling and extraction of up to 1,000 tonnes of material, are likely to involve major disturbance to any land and waters. As the Tribunal noted in Champion (at [77]) this generalised position has never been accepted by the Tribunal. The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion at [75]-[79] and the cases cited therein).
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors including the following:
·   Most of the proposed licence covers pastoral leases where disturbance has already and will continue to be carried out;
·   There is a history of mining and exploration in the area, and a substantial portion of the proposed licence is already subject to an existing petroleum exploration permit;
·   The conditions imposed on the proposed licence dealing with ground disturbing activities including requirements for rehabilitation (standard conditions 1-4);
·   The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
·   With the possible exception of Conservation Parks 43100 and 43101, there is no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and
·   There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
The native title party further submits (at 36) that within the proposed licence there are sites that are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorised persons may not be present at them. The native title party contends that this feature of the area places a burden on the local Aboriginal community to look after their country and that the grant of the proposed licence in these circumstances will cause a major disturbance. Mr Brooking notes in this respect that Bunuba people are ‘frightened if strangers arrive in our country uninvited’ (at 22) and states that ‘[i]f malngarri [white people] damage a site, artefact or living water or a ngarranggarni or Dreaming tree, we feel very upset ... We feel very sad, like someone close to us has died’ (at 24). However, it is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters: Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113 (‘Rosas’) at [84]. While it is open for the Tribunal to consider evidence regarding the impact of the proposed act on the customs and traditions of the native title party, that evidence must be directed towards the issue of major disturbance and may not simply repeat contentions raised under s 237(a) or s 237(b): Rosas at [86]. Cultural concerns about unauthorised access cannot on their own form the basis of a finding of major disturbance: Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 (10 July 2009) (‘Geotech’) at [44].
I note that Government party documentation indicates that a National Heritage Listing affects the entire area of the proposed licence. No party has sought to make an issue of the National Heritage Listing and there is nothing before me to suggest that the National Heritage Listing has any significant effect on the likelihood that the proposed licence will involve, or create rights that will involve, a major disturbance to any land or waters concerned. The Tribunal has previously found that a National Heritage Listing will not by itself be determinative of whether major disturbance will be likely: Geotech at [44]. I also note that two conservation parks (one of which, Geikie Gorge, is a national park) overlap the proposed licence. Again, no party has raised the issue and there is no evidence before me to suggest that the existence of the conservation parks on the area of the proposed licence increases the likelihood of major disturbance. As Deputy President Sosso found in Rosas (at [101]), ‘the mere declaration of land or waters as national park ... does not raise a presumption that the grant of an exploration licence would be likely to result in major disturbance’. The reasoning in Rosas applies equally to conservation parks. In any event, I am satisfied that the regulatory regime outlined in the Government party’s contentions and Reply, which requires ministerial consent following consultation with and the concurrence or recommendation of the minister, body or person in which the control or management of the reserve is vested (in this case, the National Parks and Nature Conservation Authority) before mining can be done on reserve land and for which additional conditions may be imposed, will ensure that major disturbance is unlikely. In addition, the grantee party materials indicate the proposed program of works is unlikely to include the areas subject to the heritage/conservation listing.

Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2054 to Callum Baxter, is an act attracting the expedited procedure.

Helen Shurven
Member
26 March 2012