Frank Sampi & Others on behalf of Koongie-Elvire and Barbara Sturt & Others on behalf of Jaru v Sarag Pty Ltd and Another
[2018] NNTTA 54
•13 September 2018
NATIONAL NATIVE TITLE TRIBUNAL
Frank Sampi & Others on behalf of Koongie-Elvire and Barbara Sturt & Others on behalf of Jaru v Sarag Pty Ltd and Another [2018] NNTTA 54 (13 September 2018)
Application No: | WO2017/0702; WO2017/0704 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Frank Sampi & Others on behalf of Koongie-Elvire (WC1999/040)
(first native title party)
- and –
Barbara Sturt & Others on behalf of Jaru (WC2012/003)
(second native title party)
- and -
Sarag Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 13 September 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
| Legislation: | Native Title Act 1993 (Cth) ss 151, 237 |
Cases: | Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Barbara Sturt and Ors v Baracus Pty Ltd [2016] NNTTA 18 (Sturt v Baracus) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49; (Hale v Western Australia) Maggie John and Ors v Geological Resources and Another [2013] NNTTA 151 (John v Geological Resources) Silver v Northern Territory[2002] NNNTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (Western Australia v McHenry) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representative of the first native title party and second native title party: | Angela Booth, Kimberley Land Council |
| Representative of the grantee party: | Hong-Jim Saw, Gold Valley Holdings Pty Ltd |
| Representatives of the Government party: | Catherine Wallace, State Solicitor’s Office Matthew Smith, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E80/5085 (the licence) to Sarag Pty Ltd (Sarag). By including an expedited procedure statement in the notice advertising the proposed grant, the State of Western Australia (the State) is asserting the licence can be granted without going through the normal negotiation procedure required under s 31 of the Native Title Act1993 (Cth) (the Act). That is, unless, in accordance with s 32 of the Act:
(a)persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object to the expedited procedure being applied; and
(b)if the objection is not withdrawn or dismissed, I determine the licence is not an act attracting the expedited procedure.
By including an expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
The licence covers approximately 256 square kilometres in the Shire of Halls Creek. The Koongie-Elvire (WC1999/040) and Jaru (WC2012/003) native title claims (collectively, the native title parties) hold native title rights and interests in the licence area. The Koongie-Elvire native tile claim overlaps the licence by approximately 24.41 per cent and the Jaru native title claim overlaps the licence by approximately 75.59 per cent. Koongie-Elvire and Jaru exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies. They argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. Sarag and the State argue the expedited procedure should apply.
The then President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies. If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Sarag and the State must negotiate in good faith with a view to reaching an agreement with Koongie-Elvire and Jaru about the proposed grant of the licence.
Preliminary evidentiary matters
The native title party material
The native title parties submitted a statement of contentions, attaching the affidavits of Ms Barbara Sturt and Mr Stewart Morton. Ms Sturt and Mr Morton are traditional owners for Jaru and I accept they have authority to speak for the licence area. The native title parties also submitted a statement of contentions in reply to submissions made by Sarag and the State.
The grantee party material
Sarag submitted a statement of contentions along with a Quick Appraisal of the proposed licence from the Department of Mines, Industry Regulation and Safety, and a map of a previously granted exploration licence subject to the proposed licence area.
The State’s material
The licence area has previously been the subject of a number of exploration licences, prospecting licences, mineral claims and temporary reserves. The initial term of grant for E80/5085 is five years, and is renewable.
The State’s Register of Aboriginal Sites shows one site registered under the Aboriginal Heritage Act 1972 (WA) called Palm Spring (ID14325, engraving site), and one other heritage place recorded, also called, Palm Spring (ID13912, artefacts/scatter, quarry, camp). It is agreed by all parties that both sites are located in the south-west corner of the licence. It is well established that a site or area may be of particular significance without being recorded on the Register of Aboriginal Sites (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
The State’s evidence, contentions and documents indicate the licence is overlapped by Pastoral Lease N049706 (Elvire) at 22.7 per cent, Pastoral Lease N050582 (Sophie Downs) by 1.2 per cent and Crown Reserve 40883 by 4.2 per cent.
The State intend to impose a condition that prior written consent of the Minister responsible for the Mining Act 1978 (WA) is to be obtained before commencing any exploration activities on the following other overlaps:
·Class C Reserve 5HR 28538 (for regeneration of eroded areas in the Ord River Dam catchment area) by 57.9 per cent
·Crown Reserve 26407 (a public watering facility reserve) by 0.1 per cent
·Crown Reserve 22789 (for recreation purposes) by 10 per cent
As well as a number of other conditions and endorsements the State intends to impose on grant of the licence (see Appendix A), the State outline in their contentions that a condition will be placed on the licence by which the native title parties may request within certain timeframes, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA).
Facts and Issues
Parties agreed on a number of facts and procedural issues, including:
·The Aboriginal community of Linga is within the proposed licence, and the Aboriginal communities of Wunga and Ngyallawilli are 2.45 and 8.85 kilometres from the licence, respectively.
·Some members of the native title parties access the proposed licence area to hunt, fish, collect resources and conduct intergenerational teaching.
·There are five sites of particular significance for the purposes of s 237(b) (noting that Brim Gorge is also referred to also as Bream Gorge on maps and papers):
oA living water hole (associated with the Ngarrangarni dreaming story) at Brim Gorge.
oSacred men’s and women’s sites at Brim Gorge.
oSacred women’s site at Mount Flora.
oPaintings and artefacts in the caves at Mount Flora.
oBurial grounds at Brim Gorge, Palm Springs and Saw Tooth Gorge.
Parties did not agree as to whether:
·the act is likely to interfere with the community or social activities within the meaning of s 237(a).
·the act is likely to interfere with any of the sites identified at [12] above.
·the following sites are located inside or outside of the proposed licence, or whether they will be interfered with, should they be found to be of particular significance:
oA corroboree ground and artefacts at Brim Gorge/Gumurulu.
oBlue tongue lizard dreaming, devil spirit, sacred spring and rock art at Castle Creek.
oRock art at Saw Tooth Gorge.
In addressing s 237 of the Act, I must make a predictive assessment in the context of s 237 of the Act. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for further oral hearing. All parties indicated they were content to proceed on the papers.
(a) Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
What community or social activities do the native title parties undertake on the licence?
It is agreed by all parties that the native title parties access the licence area to participate in community and social activities such as hunting, fishing, collecting resources and intergenerational teaching. The native title parties’ contentions explain how the close proximity of the Aboriginal community to the licence area is relevant to the question of direct interference, as it suggests the licence area may be used more frequently than other areas further away from the community. They say the licence area includes numerous waterholes linked to Brim Gorge, Castle Creek and Linga Valley, which are navigated for the purposes of the social and community activities conducted by the native title parties throughout the year, both in the dry and wet season.
With parties having agreed that certain social and community activities do take place on the licence, my focus is on whether or not it is likely that those activities will be interfered with by the explorer, once the licence is granted and the explorer is able to conduct their exploration activities. The native title parties contend their community and social activities are likely to be disrupted and interfered with if Sarag access and use the licence area. The native title parties say access by Sarag to the licence area without consultation with the native title parties is likely to lead to direct interference with the native title holders who access the area, including essential subsistence activities which provide food to members of the native title parties. Ms Sturt states (at 12) ‘anyone who goes there without asking permission from the Traditional Owners of that country where the Tenement Area is will get punished’. This is largely because of the nature of the sites on the licence, and their connectedness to social and community activities, which appear to be conducted intensively on certain areas of the licence (for example, in the north of the licence around Castle Creek and Brim Gorge; to the centre of the licence around Mount Flora; and to the south of the licence around the Linga Valley community and Saw Tooth Gorge).
What activities do Sarag propose to undertake on the licence?
I note that, upon the grant of a licence, an explorer can exercise their full suite of rights, which are set out in s 66 of the Mining Act 1978 (WA). This includes removing up to 1000 tonnes of material from the licence area.
Sarag state their intended work program will be low impact and will include prospecting, conducting field reconnaissance, geological mapping, surface geophysics, collection of samples, soil sampling, aerial surveys and ground based surveys. Sarag estimate they will spend less than one month on ground during any one year period until such time as a heritage survey is conducted. They note this limited time on the ground, coupled with advance notice, will significantly reduce the likelihood of interference with community and social activities of the native title parties. Sarag state they are not adverse to completing heritage surveys before the start of any low impact activity, and will not exercise their rights conferred by the grant of the licence for any activity that is not considered ‘low impact’ until such time as a heritage survey has been conducted. Sarag say they will notify the native title parties of any ground access and will not enter any areas that are deemed to be significant to the native title parties ‘acting reasonable and within reason’ (at 6). Sarag asserts they are willing to consider excluding graticular blocks from the licence that contain identified sites or areas. I could not see any information in the materials for this inquiry which indicated discussions or applications regarding excision had been undertaken.
The State proposes to grant the licence subject to twelve endorsements and seven conditions (see Appendix A). As noted at [11] above, the State also proposes to include an RSHA condition. The State note Sarag has indicated a willingness to reach agreement with the native title parties with regards to heritage.
Is the grant of the licence likely to interfere directly with the community or social activities of the native title parties?
The State say Castle Creek, an area identified ‘as a good fishing spot’ by the native title parties, does not appear the fall entirely within the licence. I note that part of Castle Creek overlaps an area in the north-east portion of the licence area, and I am satisfied that social and community activities conducted around Castle Creek are done so within the licence area, as outlined in the affidavit evidence.
The State contend the native title parties have not provided details about the number of people involved in such activities, or how frequently the activities occur. It asserts the majority of the native title parties references to hunting and fishing refer to the past, and evidence of more recent activities do not provide details as to the frequency of this activity or whether it could occur in places other than the proposed licence. While the proximity of Aboriginal communities to a proposed licence area may indicate activities are more frequently on the proposed licence area, this must be accompanied by evidence that the native title parties do conduct such activities on the licence on a regular basis. The State contend the level of evidence in the present matter is comparable to John v Geological Resources, where the Tribunal found there to be limited information on how frequently these activities takes place or whether they can be done elsewhere on the claim. Having looked at that decision, I note the evidence in that matter was broad, and referred predominantly to one area on the licence where certain social and community activities were said to take place. The evidence provided in this matter is quite specific in terms of the number and location of areas within the licence where social and community activities take place, why they take place in those areas, and why those areas are important to the native title parties from the point of view of their traditions.
The State contend interference by Sarag accessing the proposed licence area without prior consultation is unlikely to occur, given Sarag say they intend to notify the native title parties of any proposed ground works, as well as provide detailed information about those works before commencing them. Further, the State argues any potential interference will be regulated and minimised by the regulatory regime and the conditions and endorsements to be imposed on the grant of the licence The State note Sarag have estimated their field program will be less than one month per year until a heritage survey is completed, contending this will limit the possibility of interaction between parties. They say the proposed licence area is relatively small compared with the size of the Koongie-Elvire and Jaru claim areas, and assert there is no evidence they cannot conduct community and social activities only within the proposed licence area. As noted above, I have been convinced that the social and community activities and intimately connected to the north of the licence around Castle Creek and Brim Gorge; to the centre of the licence around Mount Flora; and to the south of the licence around the Linga Valley community and Saw Tooth Gorge.
The native title parties submit that given the extent of the use of the proposed licence for their community and social activities, the grant of the proposed licence will make it likely that Sarag’s exploration activities will cause interference. They further contend there is no requirement that community and social activities be conducted with particular frequency for the purposes of s 237(a). The native title parties state the entire licence area is used for hunting – for example, the Jaru people ‘will hunt all though the tenement area’ (Ms Sturt’s affidavit at 10). And there are a number of places on the licence used particularly for hunting and fishing - ‘Linga Valley, which is in the south of the Tenement Area is a sacred hunting ground’ (Mr Morton’s affidavit at 5). It is for these reasons and others that the native title parties do not support the State’s contention that these activities could be conducted elsewhere, and assert the nature of the activities is explained and specific details are provided.
The native title parties contend that none of the endorsements and conditions the State intend on imposing in regards to the grant of the licence will prevent interference for the purposes of s 237(a). They assert it is not clear what ‘agreement the Grantee Party intends to undertake a heritage survey’, and argue that Sarag did not engage in any negotiations towards a Heritage Protection Agreement (HPA) that ensures a requirement to undertake a heritage survey prior to any exploration activities.
The native title parties submit they have established there is an intensity of community and social activities undertaken on the licence area. They contend that as Sarag may fully exercise the rights conferred under the proposed licence, the grantee party’s exploration activities are likely to directly interfere with the community and social activities of the native title parties. In regards to access, the native title parties assert Sarag’s exploration activities will restrict the native title parties’ ability to access the licence area.
Conclusion
Given the number of areas on the licence where social and community activities take place, and the sacred nature of some of those areas for the native title parties traditions, I accept that exploration activities are likely to directly interfere with them for the purposes of s 237(a). The evidence provided by both Ms Sturt and Mr Morton is consistent and clear in the type of activities conducted by the native title parties, where they are conducted and why, and how they differ from general activities such as hunting or fishing in other parts of the claim areas.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
What areas or sites have the native title parties identified in relation to the licence area and which are of particular significance?
Parties agreed the following were sites of particular significance for the purposes of s 237(b):
(a)A living water hole (associated with the Ngarrangarni dreaming story) at Brim Gorge.
(b)Sacred men’s and women’s sites at Brim Gorge.
(c)Sacred women’s site at Mount Flora.
(d)Paintings and artefacts in the caves at Mount Flora.
(e)Burial grounds at Brim Gorge, Palm Springs and Saw Tooth Gorge.
Parties could not agree whether the following sites are located inside or outside of the proposed licence, or whether they will be interfered with, should they be found to be of particular significance:
(a)A corroboree ground and artefacts at Brim Gorge/Gumurulu.
(b)Blue tongue lizard dreaming, devil spirit, sacred spring and rock art at Castle Creek.
(c)Rock art at Saw Tooth Gorge.
The State contend the native title parties have not provided sufficient evidence to enable a finding that these three sites are of ‘particular’ as opposed to ‘general’ significance to the native title parties. The native title parties submit that their evidence meets the requirements of s 237(b) as it established these sites are located on the licence area, are known to the native title parties, and their significance has been explained. They contend there is no requirement to provide evidence of any greater detail than the evidence provided.
For the purposes of s 237(b), the evidence must: identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
While I note that Brim Gorge and Castle Creek appear to run both on and off the licence, I accept from the way the affidavit evidence is cast, that a) there are sites of particular significance associated with Brim Gorge ‘on the tenement’ and b) the dreaming runs through Castle Creek and there are places of particular significance on the licence associated with the Creek, including a sacred spring. Mr Morton states there are lots of sacred sites at Brim Gorge (at 6) ‘the Aboriginal name for the range that run across the gorge is Gumurulu.’ Ms Sturt provides details on this dreaming and the rock art at castle Creek, ‘There is a big devil spirit who lives at Castle Creek, he got a big, wide cave there in big hill’ (at 11). Ms Sturt states people will get hurt if they go to these places without permission from the Traditional Owners.
While the evidence does not specifically say the corroboree ground is within the licence, it does link the corroboree ground with Brim Gorge, and I accept, as do the parties by agreement, that there are sacred men’s and women’s sites on the licence associated with Brim Gorge – whether or not one of those is a corroboree ground or whether there are artefacts in the area, would be conjecture. I do accept that the area of Brim Gorge on the licence is associated with sacred areas and is a site of particular significance.
Similarly, with the dreaming at Castle Creek, there is not clear evidence that a rock and cave associated with the dreaming is actually located on the licence. Nevertheless, there is sufficient evidence for me to conclude that Castle Creek, which runs through the licence, and which is associated with social and community activities related to the traditions of the native title parties, is an area of particular significance for the purposes of s 237(b).
Ms Sturt states there is scared ground at Sawtooth Gorge, plus rock art and carvings there back towards Palm Spring. I note Saw Tooth Gorge is clearly on the licence, and so I accept the rock art associated with that Gorge is also on the licence. Given parties accept Saw Tooth Gorge as a site of particular significance to the extent burial grounds exist there, I also accept the rock art there would be of particular significance, given the special nature of that part of the licence as a whole, as described in both affidavits.
Are any area or sites of particular significance likely to be interfered with by the exploration activities of Sarag?
The native title parties contend their evidence establishes it is not appropriate under traditional laws and customs for Sarag to access the licence area without consulting with the native title parties. They note it has been accepted by the Tribunal in previous matters that unauthorised entry into areas where access has been restricted under traditional laws and customs may constitute interference under s 237 of the Act (see Sturt v Baracus at [28]–[30]). The State rebut that argument.
The native title parties argue Sarag have not provided any detailed information relating to their proposed exploration activities, and the Tribunal should assume they will fully exercise their rights conferred under the licence. They assert despite the State’s regulatory regime, the RSHA condition and Sarag’s intentions to undertake a heritage survey, interference remains likely due to the practical difficulties of avoiding interference with sites and areas, particularly where not all sites are readily known to third parties.
The State address the native title parties concerns that Sarag will pollute watercourses, disturb bones at burial sites, access gender restricted sites or sacred ground, seek rock paintings without permission and access caves without permission. The State say the living spring and associated Blue Tongue lizard dreaming are located on or in Castle Creek. They assert concerns related to the pollution of Castle Creek and resulting interference with sites located in or on the Creek are addressed by the draft endorsements and conditions for the proposed licence (see Appendix A). Sarag state they have no intention of interfering with waterways and ‘would expect to avoid any water areas which would be classed as difficult terrain’.
The State also do not accept there is likely to be interference with sites of particular significance by Sarag accessing the licence area without seeking permission from the native title parties. The State note Sarag have committed to inform and involve the native title parties in their exploration activities and to conduct low impact activities until a heritage survey is performed. The State also refer to a number of cases in support of their assertion that interference would not occur on this licence. For example, they argue that Sarag has made a commitment that goes beyond that made by the explorer in Hale v Western Australia (where burial sites existed on the licence and the expedited procedure was found not to apply), as Sarag have offered to, where possible, invite the native title parties to monitor or attend exploration activities.
While Sarag have made a number of statements indicating their intentions in relation to exploration activities, these do not appear, on the evidence, to be contractually enforceable between them and the native title parties. In addition, in relation to the RSHA which the native title parties could request and enforce, the native title parties say they have not been provided with a draft of such agreement. I note that under the States proposed RSHA condition, low impact activities can include small exploration camps, reconnaissance in light vehicles and drilling using hand held rig or rig mounted on 4 wheel vehicle (if the Goldfields Land and Sea Council RSHA were to apply, for example). In my view, given the evidence of the particular significance of the sites on this licence including the existence of burial sites, I consider interference would be likely to occur should activities such as these, and others which are also considered by the State and Sarag to be low impact, were conducted by the explorer. For this reason, I conclude the States regulatory regime would also not be sufficient to make the chance of interference with sites of particular significance an unlikely one. This is with the possible exception of the rock art at Saw Tooth Gorge, if that site is the one recorded (and so readily identifiable) as Palm Spring on the States sites register.
The State and Sarag also raise the argument that there has been previous exploration and mining on the licence. While I note there have been grants of such licences, there is little evidence of the type or extent of such activities. In addition, even if there was evidence the licence had been previously been disturbed, this does not necessarily mean the areas of particular significance have lost their traditional importance, or that further disturbance would not constitute interference.
Conclusion
It has been established there are a number of areas of particular significance to the native title parties on the licence. I then need to consider whether interference was likely to those sites from the activities of the explorer on the licence. In making the predictive assessment as to whether there is likely to be a real risk, I consider that because of the nature of these sites (with the possible exception of the rock art at Palm Spring), and the way those sites are intertwined with the social and community activities of the traditional owners, it is likely that some or all of them would be interfered with for the purposes of s 237(b) of the Act.
The evidence in this matter has not satisfied me that inadvertent interference, such as the explorer entering parts of the licence area, would be sufficient to cause interference with the sites identified. However, in lawfully exercising its rights under the terms of the grant, I consider Sarag is likely to cause direct and substantial interference should it explore on or around the areas on the licence of Brim Gorge, Mount Flora or Saw Tooth Gorge. There is also evidence that exploration on or around Castle Creek, which partly flows through the licence, is likely to cause such interference. Even if Sarag did not conduct activities related to water (which Sarag indicates it may not), and even taking into account the conditions and endorsements the State intend to impose (which allow Sarag to do water related activities, with the consent of the relevant Minister), other types of exploration activity, conducted on or near those sites and areas of particular significance, are likely to interfere with those sites or areas.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was one of the grounds raised in the native title parties’ initial objections, which the native title parties subsequently indicated they did not wish to pursue. The agreed facts indicate all parties do not consider the grant of the licence is likely to involve disturbance in relation to the s 237(c) criteria. I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E80/5085 to Sarag Pty Ltd is an act that does not attract the expedited procedure.
Helen Shurven
Member
13 September 2018
APPENDIX A
ENDORSEMENTS
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.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Licensee attention is drawn to the provisions of the:
· Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
The rights of ingress to and egress from, and to cross over and through, the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
The taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless current licences for these activities have been issued by DoW.
Measures such as drainage controls and stormwater retention facilities are to be implemented to minimise erosion and sedimentation of adjacent areas, receiving catchments and waterways.
All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
In respect to Proclaimed Surface Water Areas, (Ord River & Tributaries) Irrigation District Areas (Ord River) and Rivers (RIWI Act) the following endorsements apply:
The taking of surface water from a watercourse or wetland is prohibited unless a current licence has been issued by DoW.
Advice shall be sought from DoW and the relevant water service provider if proposing exploration activity in an existing or designated future irrigation area, or within 50 metres of a channel, drain or watercourse from which water is used for irrigation or any other purpose, and the proposed activity may impact water users.
No exploration activity is to be carried out if:
· it may obstruct or interfere with the waters, bed or banks of a watercourse or wetland
· it relates to the taking or diversion of water, including diversion of the watercourse or wetland unless in accordance with a permit issued by the DoW.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
The taking of groundwater and the construction or altering of any well is prohibited without current licences for these activities issued by DoW, unless an exemption otherwise applies.
CONDITIONS
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
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 program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, 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.
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 GORDON DOWNS 18, 19, 20, J 28 and R 033 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Recreation Reserve 22789, Public Watering Facility Reserve 26407 and Regeneration of Eroded Areas in Ord River Dam Catchment Area Reserve 28538.
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