Delores Cheinmora, Vernon Gerrard & Others on behalf of the Balanggarra Native Title Claimants/Western Australia/Geotech International Pty Ltd & Timothy Vincent Tatterson
[2011] NNTTA 17
•16 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Delores Cheinmora, Vernon Gerrard & Others on behalf of the Balanggarra Native Title Claimants/Western Australia/Geotech International Pty Ltd & Timothy Vincent Tatterson, [2011] NNTTA 17 (16 February 2011)
Application No: WO10/947
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Delores Cheinmora, Vernon Gerrard & others on behalf of the Balanggarra Native Title Claimants (WC99/047) (Applicant, native title party)
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The State of Western Australia (Government party)
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Geotech International Pty Ltd & Timothy Vincent Tatterson (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 16 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, 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (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)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others 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), Hon C J Sumner
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner
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
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Representative of the Hema Hariharan, Kimberly Land Council
native title party: Ania Maszkowski, Kimberly Land Council
Representative of the
Government party: Clyde Lannan, Department of Mines and Petroleum
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative of the
grantee party: Sherry Hingston, Iron Mountain Mining
REASONS FOR DETERMINATION
On 10 March 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4372 (‘the proposed licence’) to Geotech International Pty Ltd & Timothy Vincent Tatterson (‘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, comprising an area of 289.15 square kilometres located 221 north west of Wyndham, is 100% within the registered native title claim of the Balanggarra people (WC99/47 – registered from 9 December 2004). No other native title claims overlap the proposed licence.
On 12 July 2010, Delores Cheinmora, Vernon Gerrard & Others on behalf of the Balanggarra Native Title Claimants (WC99/47) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents 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. Directions made by the Hon C J Sumner on 22 July 2010 requested the Tribunal be provided with: contentions of the State by 1 November 2010; contentions of the native title party by 8 November 2010; and contentions of the grantee party by 15 November 2010.
The Government party lodged its contentions and evidence on 28 October 2010, and supporting information from the Department of Mines and Petroleum (‘DMP’) was lodged on 12 October 2010.
A Statement of Contentions of the native title party and the unsigned affidavit of Mr Matthew Waina, in support of the native title party, were lodged on 8 November 2010, with the same affidavit, sworn, being lodged on 11 November 2010.
The grantee party contentions were lodged on 15 November 2010.
At the listing hearing on 25 November 2010, all parties agreed that the inquiry can be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately so determined (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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [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 [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 [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’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, 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 that department that the proposed activities are acceptable.
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, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) 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).
Evidence in relation to the proposed act
Government party and DMP documents include: 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 the proposed endorsements and conditions of grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s geospatial services on 20 December 2010 shows that there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the Government party and the native title party reveal no sites or communities within the proposed licence site.
Government party documents establish the underlying land tenure of the proposed licence site to be principally vacant crown land (more than 87.2 per cent). Further notable underlying land tenure includes File Notation Area 8733, being a proposed national park vested in the Department of Environment and Conservation (88.8 per cent overlap), Carson River Indigenous Owned Lease (3114/1056) (0.4 per cent overlap), and Rain Forest Area (less than 1 per cent overlap).
According to the list of tenements in the Quick Appraisal, there has been previous mineral exploration and/or mining activity in the area of the proposed licence site since 1976, overlapping the site by between 1.1 per cent and 46.1 per cent. There is no current exploration activity in the proposed licence site. Thirteen dead tenements overlap the proposed licence site. Of these, three were surrendered, five were withdrawn, four were cancelled and one was forfeited.
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 [21] - Conditions 1-4). According to documents provided by the Government party, these 4 conditions, and the following 4 other conditions, will regulate the exploration activities on the current proposed licence site:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment;
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
- 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;
7.No interference with Geodetic Survey Station S 166 & S 168 and mining within 15 meters thereof being confined to below a depth of 15 metres from the natural surface;
8.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on the foreshore, seabed and navigable waters.
According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
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 Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.The land the subject of this licence affects Rainforest areas. The licensee is advised to contact the Department of Environment and Conservations 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 the following documents:
·A Statement of Contentions of the Balanggarra Native Title Claimants, received on 8 November 2010;
·A sworn affidavit from Mr Matthew Waina dated 9 November 2010, the signing of which was witnessed by Ms Louelea Robb, a solicitor for the native title party representative body. Mr Waina states he is a member of the Balanggarra native title claimant group (WC99/47), and I accept that he has the authority to speak for country on behalf of the native title party.
The affidavit of Mr Waina is as follows:
AFFIDAVIT OF MATTHEW WAINA
1.I Matthew Waina, of Kalumburu Aboriginal Community, Shire of Wyndham East Kimberly, Western Australia, solemnly and sincerely declare and affirm THAT:
2.My name is Matthew Waina. My Aboriginal name is Paletmun, my dreaming is Umba, the red kangaroo, I was born on June 5th 1965 in Kalumburu, Western Australia.
3.I am a member of the Balanggarra (Combined) Native Title Claimants (WC99/047).
4.I know the area where Timothy Vincent Tatterson and Geotech International Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E80/4372, “the exploration licence area”, very well because I visit the area regularly with my family. The exploration licence area is in my father Laurie Waina’s Country. He is getting older now and I am taking on the responsibility for speaking for that area so I am sitting with my father as we speak so that he knows what I am saying. I have been shown a map of the application area. The maps I was shown are attached to this affidavit and marked “A”.
5.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
6.The exploration licence area falls within Balanggarra country.
7.That is all Kwini country, that particular area is all range country and there are a lot of springs through there. The old people used to hunt all through the exploration licence area because its good hunting, you will find almost everything there. It’s good for Goanna which we call Junggao, Turkey we call punurr, Kangaroo Umba and, Emu. The area also has plenty of Bush Tucker like bush potato gunmangu, yams, galay – a little berry that ripens around now, just before the wet season, like blackberries, there’s another fruit too a bit like blackberry but its green yoru, when you eat it your mouth goes black, it’s sweet when you eat it but after you eat it your mouth goes hot like chilli, and you can get a bulb from the water lilies that you can eat. We get fish and shellfish off the coast, barramundi, bream, trevally, mackerel, and red emperor, turtle, crabs, and oysters. We still go to this area today to hunt, fish, and collect bush tucker.
8.Margaret Maraltidj is going to build a community not far from the exploration licence area, at Beauty Point to the west. We go out and look after the place for her. There is a track up along the Drysdale River that you can get up there on. We go out to look after that area for her and go hunting or fishing from there, including in the exploration licence area. We go most weekends during the Dry Season and stay for a couple of days, we live off what we catch hunting and fishing mostly.
9.I also went out there to and around the exploration licence area on a trip with Clement Maraltidj and Ambrose Chalamieri, they are our senior men, on a boat, we went right along the coast and they told us about different parts of the country. My sister Gertrude went out there with the old women, Lala and Mary Pardalo, they showed her the paintings and other things, but that is for the women.
10.We would be very worried if any mining company was allowed to go in without talking to us, we know how important it is to look after country and keep it healthy and we would worry that they wouldn’t be careful of the place. They might go anywhere, they might damage waterholes so they were no good anymore. They need to talk with us about where they want to go and what they want to do first.
Interference with sites of particular significance
11.The old people used to hunt and camp all through the exploration licence area. There are lots of caves because it’s range country mostly and there are paintings in many of those caves. These paintings are important to us and we need to look after them. When we get a boat we’re going to go out and touch up those paintings, freshen them up.
12.You’ll find artefacts around the springs from making spears and axes. Stones from grinding for cooking, things like that.
13.There is one burial area down along the Drysdale side, it’s not on that area but it’s near it. The old people were buried there because they used to camp and hunt through that whole area.
Major disturbance to land or water
14.We don't want the mine to go in without showing us where they want to go. They might damage those places or destroy artefacts. We would look at where they wanted to go first and if there were things like artefacts we’d like to keep them safe. Maybe we could put them in a museum or something like that but they can’t just be destroyed. We wouldn’t like them to work near the paintings either, we want to keep all of those paintings safe, they’re part of our culture and that’s out responsibility.
15.We know about the different types of things mines can do, like drilling, if they go in drilling they’ll have to make roads to get in. We would be very worried about where they went if they didn’t talk to us first.
Evidence provided by the grantee party
The grantee party has provided a statement of contentions dated 15 November 2010. I note that the grantee party states they have entered into an arrangement with a third party, Orange Hills Resources Limited, in respect of the proposed licence site. They do not outline specifically what this arrangement relates to.
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 it 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 [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). 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 451 [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 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978, including the provisions of s 63 and standard conditions to be imposed on exploration licences and the additional conditions/endorsements to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.
In relation to community and social activities at the proposed licence area, Mr Waina states that ‘I visit the area regularly with my family’ (at 4). He states that ‘the old people used to hunt all through the exploration licence area’ and that ‘We still go to this area today to hunt, fish and collect bush tucker’ (at 7). In relation to an area near Beauty Point, and the exploration licence area, he states ‘We go most weekends during the Dry Season and stay for a couple of days, we live off what we catch hunting and fishing mostly’ (at 8). He states that a community is going to be built near Beauty Point, which is ‘not far from the exploration licence area’ (at 8).
A map prepared by the Tribunal’s geospatial services on 20 December 2010, shows Beauty Point to be approximately 15 kilometres from the south western boundary of the proposed licence site.
Mr Waina states that he and others have been told, by senior men, ‘about different parts of the country’ including ‘right along the coast’, and that his sister went with the old women to be shown ‘paintings and other things’ for the women (at 9). He states ‘We would be very worried if any mining company was allowed to go in without talking to us, we know how important it is to look after country and keep it healthy and we would worry that they wouldn’t be careful of the place’ (at 10).
In addition to Mr Waina’s statements, native title party contentions state that ‘Members of the Native Title Party have ancestors and family who are buried close to the tenement area’ (at 13(f)). The contentions state that the mere existence of the grantee party on the land could lead to interference (at 14). In my view, something more than the mere existence of the grantee party must be shown to indicate direct interference in the area that is substantial and not trivial.
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure. The grantee party states they have entered into an arrangement with a third party, Orange Hills Resources Limited, in respect to the tenement. They refer to the intentions of the third party in their contentions.
The grantee party states in their contentions that they rely on Government party contentions to submit that their activities are not likely to interfere directly with community or social activities of the native title party. They add that they and/or the third party ‘will visit the tenement site approximately 2-3 times during the first year of grant’, and state that ‘The first stage of ground exploration due to be conducted in the first year of grant is unlikely to cause any ground disturbance. If a drilling programme is thought necessary, Traditional owners would be consulted’ (emphasis added). The grantee party also indicate that their initial exploration will include: desktop research; a field trip with rock chip sampling; and possibly closer spaced soil sampling and mapping.
In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access was regular but provided only general information on the present activities of the claim group. The Tribunal found (at [11] & [13]) the requisite level of interference with social and community activities is unlikely as there was little specific evidence of the activities carried out over the area.
The size of the proposed licence is 289.15 square kilometres and the area of the Balanggarra claim is 26098.424 square kilometres. Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
Taking all these factors into account I find that the exploration activity is unlikely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
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 risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows no registered sites within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over that 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 does protect all Aboriginal sites, whether on the Register or not.
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 usually found that the site protective regime based on the AHA is sufficient to ensure that any 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), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases 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 found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (RSHA): (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (‘Champion’)).
Mr Waina’s affidavit evidence states:
·there are ‘lots of caves because it’s range country mostly and there are paintings in many of those caves. These paintings are important to us and we need to look after them’ (at 11)
·‘You’ll find artefacts around the springs from making spears and axes. Stones from grinding for cooking, things like that’ (at 12)
·‘There is one burial area down along the Drysdale side, it’s not on that area but near it. The old people were buried there because they used to camp and hunt through that whole area’ (at 13).
In their contentions the grantee party has indicated they are willing to enter into a ‘Standard Heritage Agreement’ (also known as a Regional Standard Heritage Agreement or RSHA), and that the conditions and legislative scheme set out by the State ‘should ensure the conservation and protection of heritage sites and establish an amicable working relationship with the affected Native Title Claimants’. However, there is no RSHA for the Kimberley region so this offer has no practical effect. I do accept that, given the protective effect of sections of the AHA, and the various conditions and endorsements imposed on the grantee party, the chance of interference is remote (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [75]-[77], (‘Little’)).
In Wilma Freddie, there was no evidence from the grantee party as to its site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. In the present matter, the grantee party states that its intention, and the third party’s intention, is to ‘ensure the conservation and protection of heritage sites and to establish an amicable working relationship with the Native Title Claimant parties...’ The grantee party states that the rock chip sampling will be ‘on road (track) sides, and any other areas which have been identified from previous exploration research’. As such, it appears they will not be disturbing areas which have not already been previously explored.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA, or interfere with caves or the burial area nearby the proposed licence site, or Beauty Point (which is outside the proposed licence area). The grantee party has stated that it understands the restrictions and provisions imposed by the State legislative scheme, including the AHA. I accept that the grantee party intends to act lawfully and in accordance with the AHA.
I find that there is not likely to be a real risk of interference with any sites of particular significance to the native title party in the proposed licence area.
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 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Government party contentions indicate they will place the following condition on the grant of the proposed licence area:
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, 214 York Street, Subiaco WA 6008 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 (“RSHA”) endorsed by peak industry groups (eg. The Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA) and offered by the Kimberly Land Council.
I note, however, as there is no RSHA for the Kimberley region, this condition has no practical effect. As stated previously in this decision (at [37]), the grantee party’s contention that it is willing to enter into a ‘Standard Heritage Agreement’ (RSHA) also has no practical effect.
However, 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 [74]-[79] and the cases cited therein).
In this matter, the proposed licence is 221 kilometres north west of Wyndham. In relation to s 237(c), the affidavit of Mr Waina provides limited guidance. The native title party contentions also provide limited particulars, referring (at 38) to the need for people not from country to ask permission before coming on country because of the places of significance, and the issue of strangers coming on country without following Balanggarra law and custom. The contentions refer to three paragraphs in Mr Waina’s affidavit by way of support (10, 14 & 15). Each of these paragraphs make broad statements about concerns, but there is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely.
The area of the proposed licence has been the subject of past exploration and/or mining activities. The presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities.
I find that there is not likely to be major disturbance to land or waters in this matter.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4372 to Geotech International Pty Ltd and Timothy Vincent Tatterson is an act attracting the expedited procedure.
Helen Shurven
Member
16 February 2011
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