Delores Cheinmora & Others on Behalf of Balanggarra Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd
[2011] NNTTA 28
•25 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd, [2011] NNTTA 28 (25 February 2011)
Application No: WO10/687
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Delores Cheinmora & Others on behalf of the Balanggarra Native Title Claimants– (WC99/047)
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The State of Western Australia
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Thomson Aviation Pty Ltd
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Melbourne
Date: 25 February 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Environmental Protection Act 1986 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006)
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003)
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory of Australia (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Representatives of the Ms Lauren West, 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 Greg Abbott/Ms Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On 10 February, 2010, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4276 (‘the proposed licence’) to Thomson Aviation Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that 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 comprises an area of 335.26 square kilometers, located 184 kilometres north-west of Wyndham in the Shire of Wyndham-East Kimberley. It is entirely overlapped by the registered native title claim of the Balanggarra People (WC99/47- registered from 9 December 2004).
On 27 May, 2010, the native title party made an expedited procedure objection application to the Tribunal.
On 4 June, 2010, Deputy President Sumner was appointed as the Tribunal member to conduct the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgment of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned status conference on 25 August, 2010, following a number of conferences and more than one request to extend compliance dates, the grantee party requested that the matter proceed to inquiry because agreement could not be reached between the grantee and native title parties.
The Government party lodged its evidence and contentions to the Tribunal on 8 September, 2010, and 24 September, 2010. The native title party lodged an unsigned statement of contentions and an unsworn affidavit of Ambrose Chalamieri on 1 November, 2010.
The Listing Hearing was convened on 11 November, 2010. The grantee party advised that it would rely on the evidence and contentions of the Government party.
I was appointed as the Member to conduct the inquiry in relation to expedited procedure objection WO10/687 on 19 January, 2011.
All parties have agreed that this matter can be determined ‘on the papers’ (i.e., without holding a further hearing). I am satisfied that the objection can be adequately determined in this way (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 v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449, paras [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454, paras [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454, para [34]) have been strengthened.
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation, unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’) [formerly Department of Industry and Resources (‘DoIR’)]. Standard Condition 4 is also to be read with s 63AA of the Mining Act 1978 (WA) which requires approval by the DMP of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), (‘Maitland Parker’), at paras [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Evidence in Relation to the Proposed Act
The Government party has provided the following documents: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the DIA Register; a copy of the tenement application; and a copy of the proposed endorsements and conditions of grant, plus a tengraph quick appraisal.
A map prepared by the Tribunal’s Geospatial Services on 15 November, 2010, shows that there are no Aboriginal communities located within the proposed licence. There are seven communities in the wider vicinity:
· Lull Bay - approximately thirty seven kilometres west;
· Pago - approximately forty two kilometres west;
· Honeymoon Beach - approximately forty five kilometres west;
· McGowan Island - approximately forty eight kilometres west;
· Kalumburu - approximately fifty two kilometres south-west;
· Carson River - approximately fifty kilometres south-west; and
· Warbon Bay - approximately sixty five kilometres west of the proposed licence area.
DIA documentation provided by the Government party and the native title party confirms that there are no Aboriginal sites, registered pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’), that overlap the area.
In terms of underlying land tenure on the proposed licence, according to Government party documentation, Indigenous Owned Lease, Carson River, 3114/1056, overlaps the area by 100 per cent. There are also three rainforest areas that overlap by less than 0.1 per cent. No currently active tenements overlap the proposed licence.
According to the quick appraisal documentation of the Government party, there has been previous mineral exploration activity in the area between 1976 and 2010. There are thirty seven dead tenements which overlap E80/4276. Of these, nine were surrendered, sixteen were withdrawn, two expired, nine were cancelled and one was refused. A Tribunal Overlap Analysis Report on the area shows that Future Act Objection Applications were lodged by the native title party in relation to five of these dead tenements (WO97/156, WO00/158, WO04/255, WO06/425 and WO07/1473). All of these Objection Applications were withdrawn, due to agreement being reached between the parties.
The grant of the proposed licence will be subject to the Standard Conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker, at para [21] - conditions 1-4). Three additional conditions will be imposed:
·The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
·The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
§the grant of the licence; or
§registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
·No interference with Geodetic Survey Station R 89 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface
These conditions apply to the Indigenous Owned Lease, Carson River, in the same capacity as they would apply to any other pastoral or grazing lease.
The contentions of the Government party provide that a further condition (‘the proposed condition’) will be placed on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Balanggarra, the applicants in Federal Court application no. WAD 6027 of 1998 (WC99/47), such request being sent by pre-paid post to reach the Licensee’s address c/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Balanggarra the Regional Standard Heritage Agreement endorsed by peak industry groups and accepted by the Kimberley Land Council.’
This condition will not affect or assist the native title party or the grantee party as there is no such Regional Standard Heritage Agreement ‘endorsed by peak industry groups and accepted by the Kimberley Land Council’ presently in existence.
The following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
·The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
·The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
·The land the subject of this licence affects Rainforest areas. The licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
Evidence provided by the native title party
The native title party has provided an unsigned statement of contentions and an unsworn affidavit of Ambrose Chalamieri (‘AC Aff’).
The statement of Mr Chalamieri is as follows:
1. My name is Ambrose Mungala Chalamieri. My Aboriginal name is Mungala.
2.I was born at Oomarri [the upper reach of King George River], in the bush, I’m not sure what year, when my father, Piuri Tjalarimeri took me to the Kalumburu Mission for the first time in 1944. Father Eugene guessed I was about six years old.
3.I am a member of the Balanggarra (Combined) Native Title Claimants (WC99/047).
4.I know the area where Thompson Aviation Pty Ltd, “the grantee party’, has applied for Exploration Licence E80/4276, “the exploration licence area”, very well because it is my birthplace and I have travelled through there.
5.I am the Senior Person for that area because it is my birthplace and because I take that responsibility from my father Tjalarimeri. That is all Kwini Country, I speak of my travels in that country in my book, “The Man from the Sunrise Side”.
6.I have been shown a map of the application area. The maps I was shown are attached to this affidavit and marked “A”.
7.I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.
Interference with community and social life
8.The exploration licence area falls within Balanggarra country.
9.I have travelled through that country myself and know it very well; it is good country for hunting, you can gets (sic) Umba [kangaroo], meniwurra [flying fox], pardao [bandicoot], punurr [bush turkey], and junggao [goanna] all through that country.
10.It is good country for bush tucker too, cummunggoo [bush bread], ngurraworri [bush apples], and wulngga [a type of yam].
11.I went out there last in 2008, it is hard to get out there now. I went out with Tony Fitzgerald, KLC Senior Native Title Officer. He worked for the Department of Indigenous Affairs then. We went out for several days, camping in the bush. I used to have my camp there at Oomarri, and I lived there for a long while. I like to get out there but it’s hard now I’m older.
Interference with sites of particular significance
12.There are Gwion paintings and other rock paintings through the exploration licence area and a number of burial places that I have visited.
13.The paintings and burial sites are located in the ranges, which are throughout the exploration licence area.
14.These areas are important to our people. That’s our culture and we have to look after it.
Major disturbance to land or waters
15.If anyone wants to go out to the exploration licence area they have to get permission from me first because I’m the Senior Person.
16.In the Aboriginal Way you can’t go onto country without asking permission from the right person or you could go to the wrong place, you could get sick or get hurt. I’m the right person for that country, if the miner’s (sic) want to go out there they have to talk to me first. If anyone went out without talking to me and they got sick or were hurt I would feel responsible, it would make me feel bad.
17.We are not against mining but we need to know where the mining company wants to go and what they want to do there. They can’t damage the paintings and they can’t go near the burial areas. They need to talk to us before they go out so we can make sure they don’t go to the wrong place or damage any sites.
The evidence of Mr Chalamieri is uncontested and I accept it. Mr Chalamieri is one of the native title claimants. Even though he is not one of the named persons comprising the applicant and registered native title claimant, I accept that he has the necessary authority to speak for country on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the proposed licence, and the activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442, at 449-450, para [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith, at 451, para [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith, at 451-452, para [27]).
The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the native title party because:
· there are no Aboriginal communities situated on the proposed licence; and
· s 63 of the Mining Act 1978 (WA) deems that the grant of the tenement is subject to certain conditions being fulfilled, such as making safe any holes, pits, trenches etc.
The evidence of Mr Chalamieri establishes that the area within which the proposed licence is located is “good country for hunting” (AC Aff, at para 9). He says “you can gets (sic) Umba [kangaroo], meniwurra [flying fox], pardoa [bandicoot], punurr [bush turkey], and junggao [goanna] all through that country” (AC Aff, at para 9). Mr Chalamieri gives evidence that “It is good country for bush tucker too, cummunggao [bush bread], ngurraworri [bush apples], and wulngga [a type of yam]” (AC Aff, at para 10).
The evidences does not provide information about where or how frequently the activities referred to in Mr Chalamieri’s affidavit take place or who is involved. Mr Chalamieri does not depose to live on or near the proposed licence, but rather at Wyndham, 184 kilometres from the subject area. Mr Chalamieri says, “I went out there last in 2008, it is hard to get out there now…I used to have my camp there at Oomarri, and I lived there for a long while. I like to get out there but it’s hard now I’m older” (AC Aff, at para 11). Mr Chalamieri asserts a close connection to and knowledge of the subject area because, “it is my birth place and I have travelled through there” (AC Aff, at para 4. See also AC Aff, at para 9). The Tribunal’s Geospatial team was not able to locate the position of “Oomarri,” as it does not appear to be a community listed in the Gazetteer. Data about Aboriginal communities is collected by the DIA. The Tribunal received an update from the DIA in August, 2010. Mr Chalamieri describes “Oomarri” as being at “the upper reach of King George River” (AC Aff, at para 2). According to the Tribunal’s Geospatial Services map, the King George River runs along the eastern boundary of the proposed licence. At one point, the river touches a corner of the proposed licence boundary. The “upper reaches” of the river appear to be approximately between ten and fifteen kilometers from the proposed licence. The evidence demonstrates that Mr Chalamieri lived at a site close to the proposed licence and that he knows the proposed licence area very well. The evidence does not establish that anyone currently lives on or near to the proposed licence or that the social and community activities mentioned in the affidavit occur on the proposed licence. According to Mr Chalamieri’s evidence, he has not conducted any social or community activities on the proposed licence for over two years, and he has not provided any evidence that other members of the native title claim have accessed the area since this time.
The available evidence suggests that the closest Aboriginal community is located over thirty kilometres from the proposed licence. Given the number of Aboriginal communities in the vicinity of the proposed licence, it could be inferred that the social and community activities described by Mr Chalamieri occur frequently on the proposed licence. On the other hand, there is no evidence provided as to how easy or difficult it is for members of those communities to access the area or whether they go there at all. Mr Chalamieri appears to talk about the qualities of the proposed licence in the broader context of “Balanggarra country.” He says “The exploration licence area falls within Balanggarra country….I have travelled through that country myself and know it very well; it is good country for hunting, you can gets (sic)….” (AC Aff, at para 8-9). The activities described are not specifically linked to the proposed licence: they are referred to in relation to “Balanggarra country” as a whole. I can infer from this that the activities Mr Chalamieri refers to do not occur only on the proposed licence area, but all over “Balanggarra country.”
On the evidence provided, it has not been established that activities of the kind referred to in the evidence actually continue to take place on the proposed licence. If indeed such activities do take place there, the evidence establishes that there are other areas in the vicinity which can be accessed for the same purpose.
The Tribunal has found, on numerous occasions, that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with native title party community or social activities, except in an incidental and insubstantial way. In this matter, I am not convinced that any social or community activities actually take place on the proposed licence, but, if community and social activities do take place on the proposed licence, I do not believe that the sorts of exploration activities likely to be undertaken, and their episodic nature, are likely to interfere with the conduct of those activities.
As discussed above, Condition 5, to be applied to the grant of the proposed licence, requires the licensee to notify the holder of any underlying pastoral or grazing lease (here, the holder of Indigenous Owned Lease, Carson River) before undertaking airborne surveys or ground disturbing activities. Presumably, the holders of the Indigenous Owned Lease are members of the native title party. That the licensee must notify the holders of this lease before carrying out exploration work which might interfere with community or social activities, allows members of the native title party to plan their activities around the exploration and in this way interference is not likely to occur.
The area of the native title party’s registered claim encompasses approximately 26, 000 square kilometres and the proposed licence area is 336.45 square kilometres. There will be many other areas in which the native title party will be able to conduct community and social activities, if there were to be temporary interference as a result of the exploration activities (Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 at 262, para [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003)), at paras [43]-[44].
Taking all these factors into consideration, I find that the grant of the proposed licence is not likely to directly interfere with the exercise of the community or social activities of the native title party.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at 223) that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions, at para 14), I adopt the findings of Deputy President Sumner 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, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), at para [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (special or more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows that there are no registered sites within the proposed licence, but this does not mean that there are no sites or areas of particular significance to the native title party over the proposed licence area, 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on sections 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, recently in Maitland Parker, at paras [31]-[38] and [40]-[41]. While the Tribunal has usually found that the site protection 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 Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), (‘Butcher Cherel’), at paras [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
In his affidavit, Mr Chalamieri refers to “Gwion paintings and other rock paintings through the exploration licence area and a number of burial areas that I have visited” (AC Aff, at para 12). He says, “The paintings and burial sites are located in the ranges, which are throughout the exploration licence area” (AC Aff, at para 13.) Mr Chalamieri attests that, “These areas are important to our people. That’s our culture and we have to look after it” (AC Aff, at para 14). I am satisfied that paintings and burial sites are sites of particular significance to the native title party. According to the Tribunal Geospatial Services map, the ranges that Mr Chalamieri refers to in describing the location of the sites appear to be the Barton Ranges. The Barton Ranges cover the proposed licence, as well as areas for about 15 kilometres to the west of the proposed licence, and also to the north-west and south for several kilometres.
The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make a predictive assessment in accordance with s 237(b) of the Act. No information is provided as to the number of painting or burial sites likely to be in the proposed licence, or where, specifically, they might be located. The evidence provided is not sufficiently specific as to identify the painting and burial sites as situated within the proposed licence and hence I am unable to conclude that there is likely to be interference with them.
On the basis of the evidence before me, I am unable to conclude that there are any sites of particular significance to the native title party within the proposed licence. In any case, if there are sites of significance within or in the vicinity of the proposed licence, I can see no reason why the protective regimes under the AHA should not be sufficient to ensure that there is unlikely to be interference with these sites. Further, by virtue of this determination, the grantee party has been put on notice of the existence of any sites referred to in the evidence that may be in the vicinity 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576, at paras [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The affidavit of Mr Chalamieri expresses concern that, “If anyone wants to go out to the exploration licence area they have to get permission from me first because I’m the Senior Person” (AC Aff, at para 15). He says “If anyone went out without talking to me and they got sick or were hurt I would feel responsible, it would make me feel bad” (AC Aff, at para 16). And, again, “We are not against mining but we need to know where the mining company wants to go and what they want to do there….They need to talk to us before they go out so we can make sure they don’t go to the wrong place or damage any sites”
(AC Aff, at para 17).As already dealt with above, the evidence of the native title party does not establish that there are sites of particular significance or graves within the proposed licence area.
I accept that the presence of strangers on the subject area may be upsetting to the native title holders. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330, at 359). In other words, cultural concerns about unauthorised access, in terms of the native title holders’ traditional laws and customs, alone, cannot form the basis of a finding of major disturbance. There must be some physical disturbance over and above that which will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that can be pointed to are the exploration activities to be conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4276 to Thomson Aviation Pty Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
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