Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia

[2003] NNTTA 26

NATIONAL NATIVE TITLE TRIBUNAL

Egerton Gold NL/Jidi Jidi Aboriginal Corporation/Western Australia, [2003] NNTTA 26 (13 February 2003)

Application No: WF03/3

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of a Future Act Determination Application

Egerton Gold NL  (Applicant /grantee party)

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Jidi Jidi Aboriginal Corporation (WAG 72-75 of 1998)  (Native title party)

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The State of Western Australia  (Government party)

FUTURE ACT DETERMINATION

Tribunal:  The Hon C J Sumner, Deputy President
Place:  Perth
Date:  13 February 2003

Catchwords:  Native title – future act – application for determination in relation to the grant of exploration licence – native title party a registered native title body corporate – requirements for consultation with native title holders on native title decision under the Regulations – consent determination not possible – evidence appended to application – normal inquiry directions dispensed with – nature of exploration licence – weighing of criteria in s 39(1)(a) of Native Title Act – determination that the act may be done.

Hearing Date:                 12 February 2003

Counsel for the

Government party:         Trevor Creewel, Crown Solicitors Office

Counsel for the

native title party:            Frances Flanagan, Yamatji Land & Sea Council

Representative of the

grantee party:                 Jeff Elliot, Aviva Corporation Ltd

Legislation:Native Title Act 1993 (Cth) ss 29(2), 30, 35, 38, 39, 253

Native Title (Prescribed Bodies Corporate) Regulations 1999 – Regulations 6, 8, 9,

Cases:  Western Australia v Thomas (Waljen) (1996) 133 FLR 124

Evans v Western Australia (1997) 77 FCR 193

WMC Resources and Another v Evans (1999) 163 FLR 333

Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002

Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources NL, NNTT WF02/14, Hon C J Sumner, 26 June 2002

REASONS FOR DETERMINATION

Background

1. On 17 January 2003, pursuant to s 35 of the Native Title Act 1993 (Cth) (‘the Act’), Lindsay Reed, Director for and on behalf of Aviva Corporation Ltd (formerly Egerton Corporation Ltd) (‘the grantee party’) applied for a future act determination by the Tribunal (‘the s 35 application’) in relation to the proposed grant of Exploration Licence E52/1402 (‘the Exploration Licence’) under the Mining Act 1978 (WA). The Exploration Licence is situated 193km south of Paraburdoo and covers an area of 217.41 square kilometres. It is for a term of 5 years with rights to extend for two periods of up to two years and further periods of one year in prescribed circumstances. (s 61 Mining Act 1978 (WA)).

2. The grant of the Exploration Licence will be made to Aviva Corporation Limited. The s 29 notice given in accordance with the Act on 16 June 1999 specifies the grantee party as Egerton Gold NL. Based on Certificates of Registration of Change of Name from the Australian Securities and Investment Commission, Egerton Gold NL changed its name to Egerton Corporation Limited on 9 December 1999.  On 16 March 2000 Egerton Corporation Limited changed its name to Equico Corporation Limited.  On 4 June 2001 Equico Corporation Limited changed its name to Aviva Corporation Limited.

3. At the time the s 29 notices were given, Clarrie Smith and Others on behalf of the Nharnuwangga, Wajarri and Ngarla People were registered native title claimants over the area covered by the Exploration Licence.  

4. On 5 July 2001, the Federal Court made a native title determination over a large area of land including the area of the Exploration Licence. The determined native title rights and interests are described in the Native Title Register. The Common Law Holders of Native Title are the community of Nharnuwangga, Wajarri and Ngarlawangga people. The Prescribed Body Corporate and trustee of the native title is the Jidi Jidi Aboriginal Corporation. Section 253 of the Act defines ‘native title party’ by reference to paragraphs 29(2)(a) and (b) and s 30. Sub-section 29(2) of the Act says that any registered native title body corporate or any registered native title claimant at the time the s 29 notice was given is a native title party. Section 30(1)(c) says that any body corporate that becomes a registered native title body corporate after the end of a period of three months from the s 29 notification date and whose claim was entered on the Register of Native Title Claims before that time is also a native title party. The Jidi Jidi Aboriginal Corporation is such a body corporate and is ‘the native title party’ in these proceedings.

5. None of the parties have raised issues in relation to negotiation in good faith.  There is no jurisdictional impediment to making a determination on grounds that the Government and/or grantee party have not negotiated in good faith.

6. There have been no contentions made by the parties about the Tribunal’s jurisdiction to conduct an inquiry and make a determination. No agreement of the kind mentioned in s 31(1)(b) of the Act between the negotiation parties to the grant of the Exploration Licence has been made and given to the Tribunal (s 41A(1)(a)), so the Tribunal must conduct an inquiry and make a determination (ss 37 and 38).

The application

1. Although a consent determination was initially sought by the parties, it became clear at the hearing that this was not appropriate. That position is consistent with the Tribunal’s previous finding on difficulties in making a consent determination where the native title party is a prescribed body corporate (Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources Ltd, NNTT WF02/14, Hon CJ Sumner, 26 June 2002).  In that matter, I made the following observations on the Native Title (Prescribed Bodies Corporate) Regulations 1999 (at [10]):

   “The difficulty in making a consent determination arises because of the Native Title (Prescribed Bodies Corporate) Regulations 1999 made under the Act. Regulation 6(1) says that if a prescribed body corporate holds native title rights and interests in trust under s 56 of the Act the body corporate has (among others) the functions of managing the native title rights and interests of the common law holders (Regulation 6(1)(a)) and to consult with the common law holders in accordance with regulation 8 (Regulation 6(1)(d)). Regulation 8(2) says that a prescribed body corporate must consult with and obtain the consent of the common law holders in accordance with the regulation before making a ‘native title decision’. ‘Native title decision’ is defined to include a decision to do, or agree to do, any act that would affect the native title rights or interests of the common law holders. The Regulation then sets out a number of steps to be taken by the prescribed body corporate to ensure that the common law holders understand the purpose and nature of a proposed native title decision. One of these is that consent to a native title decision must be obtained according to the traditional laws and customs of the common law holders or otherwise by a process agreed to or adopted by the native title holders for the proposed native title decision or for decisions of the same kind as that decision. Regulation 9 contains evidentiary processes which can be relied upon to establish that proper consent has been obtained. Regulation 9(2)(b) allows the common law holders to give the body corporate authority to make decisions of a certain kind.”

2. In that previous matter, counsel for the native title party took the view (correctly in my opinion) that a decision to consent to a determination that an exploration licence may be granted is a ‘native title decision’ under the Regulations.  Accordingly, the consultation and consent procedures in the Regulations needed to be followed in relation to it and it appeared that they may not have been followed in relation to the Exploration Licences the subject of that application and for that reason the native title party in that matter could not consent to a determination that the Exploration Licence be granted. 

3. In this matter I was informed at the hearing on 12 February 2003 by Mr Jeff Elliott, representing the grantee party, and confirmed by Ms Francis Flanagan, counsel for the native title party, that Mr Elliott attended a meeting of the Jidi-Jidi Corporation at Yulga-Jinna Community on 13 May 2002.  At this meeting agreement in principle was reached to the grant of the Exploration Licence subject to the carrying out of Aboriginal Heritage surveys.  The native title party also instructed Yamatji Land and Sea Council (‘Yamatji’) to consent to a determination that the act may be done.

4. Although initially the native title party was prepared to consent to a determination, it become clear during the hearing that the same difficulties encountered in WF02/14 were present in this case.  As a result the matter has not proceeded by way of consent determination but by following the approach adopted in WF02/14 of making a determination on the papers without following the normal procedures for the conduct of an inquiry.

5. The s 35 application and other evidence before me includes documents which the Tribunal usually directs be provided for a determination of this kind, including maps, the conditions to be imposed, and a search of the Register of Aboriginal sites kept by the Department of Indigenous Affairs.  It also included information about the grantee party’s proposals for exploration and a copy of the ‘Contract for Services in Relation to Exploration’ dated 1 December 2002 signed by Yamatji representing the native title party, and the grantee party.

6. Normally in a s 35 application the Tribunal makes directions for the production of contentions and documents by the parties. In this case all parties have agreed that I can dispense with these directions and proceed to determine the matter on the basis of the documents already submitted. The native title party was represented by counsel from Yamatji which is the designated representative Aboriginal/Torres Strait Islander body for the area covered by the native title determination. In my view, which was supported by all the parties, the approach of the native title party to these proceedings does not constitute a native title decision of the kind referred to in the Regulations. It is not consenting to a determination that the Exploration Licence can be granted but leaving it to the Tribunal to make a determination based on the evidence before it. The native title party did not tender any evidence. In these circumstances I consider it appropriate for the matter to be determined on the basis of the documentary evidence submitted, supplemented by submissions made at a hearing convened on 12 February 2003.

The law

1. In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:

• ReKoara People (1996) 132 FLR 73 (‘Koara 1’);

• Evans v Western Australia 77 FCR 193 (‘Evans’) Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;

• Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;

• Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’); and

• WMC Resources and Another v Evans (1999)_163 FLR 333

1. The centrally relevant statutory provisions are ss 38 and 39 of the NTA.

‘38  Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.

Determinations may cover other matters

(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:

(a)    is not reasonably capable of being determined when the determination is made; and

(b)    is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be determined in a specified manner.

Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration

(1B)If:

(a)    the manner specified is arbitration (other than by the arbitral body); and

(b)    the negotiation parties do not agree about the manner in which the arbitration is to take place;

the arbitral body must determine the matter at an appropriate time.

Profit‑sharing conditions not to be determined

(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a)    the amount of profits made; or

(b)    any income derived; or

(c)     any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

39  Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)the way of life, culture and traditions of any of those parties; and

(iii)the development of the social, cultural and economic structures of any of those parties; and

(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)     any public interest in the doing of the act;

(f)     any other matter that the arbitral body considers relevant.

Existing non‑native title interests etc.

(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and

(b)    existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)    must take that agreement into account; and

(b)    need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

The area of the Exploration Licence

1. The Exploration Licence was applied for by the grantee party in July 1998 and lies approximately 193km southerly of Parburdoo, or 200 kilometres north- westerly of the town of Meekatharra. According to the Quick Appraisal issued by the Department of Mineral and Petroleum Resources on 14 January 2003 and provided with the s 35 application, the area of the Exploration Licence covers the Mt Clere, Woodlands and Milgun pastoral leases, two Crown reserves (water) (13186 & 14690), a road reserve (9097), three historical leases, three live tenements (M52/343, M52/567 & P52/674) and three pending tenement applications (E52/1129, M52/589 & M52/641).

The nature of an exploration licence and activities permitted by it

1. I adopt the findings made in Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002 (paras [24]-[31]) on the nature of an exploration licence and the activities permitted by it.  In summary a grantee is authorised (s 66 Mining Act):

   ·to enter and re-enter land for the purposes of exploring for minerals in, or under the land;

   ·to explore, subject to any conditions imposed, and carry out necessary works including digging pits, trenches and holes, and sinking bores and tunnels;

   ·to excavate, extract or remove up to 1000 tonnes of material, or more with the Ministers approval;

   ·subject to the Rights in Water and Irrigation Act 1914 to take water and sink wells or bores.

2. Activities carried out under exploration licences range from literature searches; aeromagnetic surveying and mapping; regional geological mapping, electrical geophysical programs; rock chip sampling and assaying; and the drilling of identified targets. The explorer progresses from one to the other depending on the prospectivity indicated by earlier investigations. If earlier findings are not satisfactory, the title may be dropped and subsequent ground disturbing stages such as drilling not utilised.

3. Conditions to be imposed on the Exploration Licence:  Among others, the Government party intends to impose the following standard conditions on the grant of the Exploration Licence.

   ‘1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.

   2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer.

   3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration programme.

   4.Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’

In addition, the Exploration Licence will contain an endorsement drawing the licensees attention to the provisions of the Aboriginal Heritage Act 1972 (WA).

The proposed future act – current proposals of the grantee party

1. In appendix four to its s 35 application, the grantee party states that the primary purpose of exploration within the tenement area is the discovery of economically exploitable gold deposits (and/or other minerals if present in economic groups and quantities.) Initial exploration to test the prospectivity of the tenement will comprise low-impact (non-invasive) techniques such as geological mapping, geochemical sampling (soil, stream sediment and rock-chip) and geophysical surveying. Following receipt of the results from the initial exploration, some areas may be selected for drill testing. Drilling would also be completed in staged programmes, commencing with shallow drilling with a small RAB (rotary air blast) drill rig and moving to deep drilling with large RC (reverse circulation) and diamond drill rigs if required. The time frame for completion of the staged programmes would be from three to five years from granting of the tenement.

1. Geological mapping is the first stage of exploration and involves creating a map by recording the geology of the tenement area. This is done by a geologist and an assistant walking through the tenement and making observations and is considered to be a low-impact exploration method as no ground disturbing activity takes place and vehicle access is kept to existing tracks.

2. Geochemical surveys will normally be carried out during the mapping stage which involves the collection of samples of rock, soil, and sediment from the creeks.   These surveys are considered to be of quite low impact as no machinery is used during sampling, no permanent grids are established, no markers/pegs are left at sample locations, sample holes are filled in and vehicle access is kept to existing tracks.

3. Geophysical surveys are conducted where ground conditions are not suitable for geochemical sampling. It consists of collecting readings of the ground’s physical properties e.g. magnetism by either an instrument on the ground, or by flying over the ground with that instrument. It is considered low impact as no ground disturbance is required, the survey is completed on foot and vehicle access is kept to existing tracks.

4. Rotary air blast (RAB) is generally used as a first pass drilling method to test areas of soil sampling, or in areas that do not permit soil sampling. It is a moderate impact exploration technique because it involves machinery; however the drill rigs are usually small and can operate without the need for clearing of vegetation or tracks.  Deeper reverse circulation (RC) and diamond drilling requires a larger drill rig with a second support truck and light vehicle. Drill sites require more clearing to provide room for the rig and support truck and tracks need to be wide enough to allow truck access. Diamond drilling requires, in addition, water and a sump to be excavated next to the drill site to hold water.

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

1. The external boundaries of the native title determination encompass a large area of mid-west Western Australia, including the area of the Exploration Licence.  The National Native Title Register records the determined native title rights and interests of the Nharnuwangga, Wajarri and Ngarla people to be:

   ‘(a) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the land;

   (b) the right to hunt, fish and gather (including to gather ochre) for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional laws and customs; and

   (c) the right to have access to and camp on the balance of the determination area in order to:

   (i) exercise the rights set out in (b) above

   (ii) travel through; and

   (iii) visit and care for places which are of cultural or spiritual importance.’

The native title rights and interests are not exclusive of the rights and interests of others.

1. These determined interests apply to the claim area generally and could potentially be affected by exploration.  It is ordinarily the responsibility of the native title party to produce evidence of how these registered rights and interests are enjoyed and exercised so that the Tribunal can consider the likely impact of the future act (WMC Resources and Another v Evans (1999) 163 FLR 333 at 339 – 342).  Although WMC/Evans dealt with claimants not holders of native title, the principle is the same. Section 39(1)(a)(i) talks of the effect of the act on the enjoyment of the registered native title rights and interests which includes determined native title rights described on the National Native Title Register (s 30(3)(a)). While the native title rights and interests specified on the Register exist over the whole area covered by the determination, how they are enjoyed in practice in a particular locality may vary.  For this reason the principles outlined in WMC/Evans about evidence of the enjoyment of native title rights and interests, so that the effect of a future act on them can then be assessed remains applicable.

2. While the Tribunal may conduct its own enquiries, as a matter of general practice it will not where the parties are represented before the Tribunal.  There is no onus of proof on any of the parties although parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge (Waljen at 162). For the reasons already outlined the native title party has not produced any evidence relating to this criterion and as they were legally represented I do not regard it as necessary for the Tribunal to make its own inquiries.

3. Even if I were to assume that the native title party enjoyed its native title rights on a regular basis by hunting, fishing, gathering or camping over the areas of the Exploration Licence, I would not regard the effect of exploration activity on them as justifying a determination that the act may not be done in this case. The exploration is intermittent, much of it low level disturbance and even if it involves ground disturbing activities such as tracks, and drilling, the activity is not permanent. Conditions are imposed for rehabilitation of disturbed areas thus permitting the native title party to resume any activities that may have temporarily been interfered with. It is common ground, as submitted in the s 35 application, that the grant of the Exploration Licence will not extinguish native title.

Section 39 (1)(a)(ii) - way of life, culture and traditions

1. There is no evidence of an Aboriginal community living on or in the vicinity of the proposed Exploration Licence or other evidence of the effect of the grant on this criterion.

Section 39(1)(a)(iii) - development of social, cultural and economic structures

Section 39 (1)(a)(iv) - freedom of access – freedom to carry out rites, ceremonies and other activities

1. The native title party has not submitted any evidence specific to these criteria.

Section 39(1)(a)(v) – areas or sites of particular significance

1. There are no Registered Aboriginal Sites on the Exploration Licence. This was determined by a search of the Register of Aboriginal Sites kept by the Department of Indigenous Affairs which found no sites within the application area.  There is no evidence before me from the native title party or otherwise which establishes that there are any sites of particular significance to them on the Exploration Licence area.

2. I adopt the findings of the Tribunal in Waljen at 209-211 under the heading ‘(ii) Section 39(1)(a)(v)’ up to the heading ‘Evidence’ which sets out the legislative requirements for the protection of Aboriginal sites. It is an offence under the Aboriginal Heritage Act 1972 (WA) to interfere with a site whether or not it is listed on the Register.

3. The evidence included the ‘Contract for Services in Relation to Exploration’ dated 1 December 2002 and signed by Yamatji on behalf of the native title party and the grantee party which provides for heritage surveys to be carried out prior to exploration (meaning activities and operations of the grantee party on the Exploration Licence).  At the hearing the Tribunal was informed that a heritage survey had already been carried out.

4. My finding is that the grant of the Exploration Licence and activities carried out pursuant to it are not likely to interfere with any sites of particular significance to the native title party.  The grantee party is aware of its obligations under the Aboriginal Heritage Act and a heritage survey has been carried out.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party

1. The native title party did not raise any issues with respect to this criterion.

Section 39(1)(c) - economic or other significance

1. The native title party has not submitted any evidence specific to these criteria.  There is no evidence of the expenditure proposed by the grantee party, but I can infer that some expenditure will be incurred, the amount being dependent on the extent of the exploration activities carried out.

2. Depending on the extent of exploration activities there will be some economic benefit to the people of Western Australia and in the local area in that some jobs will be generated or at least maintained and there will be expenditure on exploration plant and equipment.  There is no evidence of whether the expenditure will directly benefit any Aboriginal people but it conceivably could do so if any Aboriginal people are employed/or contracted by the grantee party during exploration.  There will be some payments to the holders of native title who will participate in the heritage surveys.  The economic significance of the grants will not be great in the overall context of the Western Australian economy but there will be some positive economic activity arising from them.

Section 39(1)(e) - public interest

1. There is a public interest in the long-term viability of the mining industry in Western Australia (Evans v Western Australia (1997) 77 FCR 193 at 215; Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at 176) and the grant of the Exploration Licence serves as a basis to contribute to that in a general sense. There are no countervailing public interest or other factors in this case which would reduce the weight to be given to the importance of facilitating the orderly and properly regulated grant of mineral titles.

Section 39(1)(f) – any other matter that the arbitral body considers relevant

1. Indigenous Land Use Agreement: The determination of native title was accompanied by an Indigenous Land Use Agreement entered into and registered under the Act. This ILUA means that the grant of exploration licences in future may be dealt with in accordance with the alternative provisions in the ILUA rather than under the right to negotiate provisions of the Act. The ILUA facilitates the grant of exploration licences where a heritage protection agreement, similar to that tendered in this matter, is in place.

2. Heritage Protection:  The ‘Contract for Services in Relation to Exploration’ dated 1 December 2002 is basically in the standard form which Yamatji uses commonly in relation to exploration.  I take into account that the level of protection for native title and sites of particular significance is therefore no less in this case than is generally the case within the Yamatji area.

Conclusions

1. The Tribunal’s task is a discretionary one that involves weighing the various criteria in s 39 on the basis of the evidence before it (Waljen at 165-166). Taking account of the matters referred to above I conclude that a determination that the act may be done is appropriate. The evidence does not suggest a need for conditions. The major concern of the native title party for heritage protection has already been covered by the Contract for Services.

Determination

1. The determination of the Tribunal is that the Exploration Licence application E52/1402 may be granted to Aviva Corporation Limited (formerly Egerton Gold NL, Egerton Corporation Limited and Equico Corporation Limited).

Hon C J Sumner
Deputy President
13 February 2003