Gooniyandi Aboriginal Corporation Trustee Body Corporate v Meridian (Lennard Shelf Project) Pty Ltd - [2015] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Gooniyandi Aboriginal Corporation Trustee Body Corporate v Meridian (Lennard Shelf Project) Pty Ltd and Another [2015] NNTTA 29 (23 July 2015)

Application No: WO2014/0001

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Gooniyandi Aboriginal Corporation Trustee Body Corporate (WCD2013/003) (native title party)

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The State of Western Australia (Government party)

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Meridian (Lennard Shelf Project) Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  H Shurven, Member
Place:  Perth
Date:  23 July 2015

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 involve major disturbance to land or waters – expedited procedure is not attracted

Legislation:Native Title Act 1993 (Cth), ss 44H, 237
Mining Act 1978 (WA) s 66
Mining Regulations 1981 (WA) reg 20

Cases:Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)

Representatives of the Ms Angela Booth, Kimberley Land Council
native title party: Ms Barbra Friedewald, Kimberley Land Council

Representatives of the Mr Matthew Pudovskis, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum

Representative of the
Grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

This decision considers whether the State Government of Western Australia can grant exploration licence E04/2334 to Meridian (Lennard Shelf Project) Pty Ltd, without the requirement for negotiations with the Gooniyandi people. The State has asserted the grant can be made without such negotiations through an expedited procedure clause in the public advertisement of the proposed grant. The Gooniyandi Aboriginal Corporation holds in trust the native title rights and interests of the Gooniyandi people, who are the determined native title holders of an area which entirely overlaps the exploration licence. The Gooniyandi Aboriginal Corporation lodged an objection with the National Native Title Tribunal against the assertion of the expedited procedure on this licence.
The licence is located 21 kilometres east of Fitzroy Crossing in the shire of Derby-West Kimberley, and is approximately 19 square kilometres in size.
To answer the question of whether the grant can be made in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. I provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used in the inquiry. No party objected to its use. All parties provided statements of contentions. In addition, the Gooniyandi people provided the affidavit of Ms Helen Malo, a senior Gooniyandi person and the affidavit of Ms Barbra Friedewald, a legal officer at the Kimberley Land Council and representative of the Gooniyandi people. Ms Friedewald attests that Meridian and the Gooniyandi community were unable to reach agreement on heritage protection. Ms Malo attests she lives at Muludja, an Aboriginal community in the south west portion of the licence. Annexed to Ms Malo’s affidavit is a map showing the exploration licence and surrounding areas, with some pen markings made by Ms Malo and referred to in her affidavit.
A decision that the expedited procedure does apply to the grant means that Meridian can proceed to explore on the licence without negotiating with the Gooniyandi people. A decision that the expedited procedure does not apply means Meridian must negotiate and attempt to come to an agreement with the Gooniyandi people prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
The Gooniyandi people argue there is a high probability the grant of the licence will interfere directly with the social or community activities carried on in the area by the Gooniyandi community. They also assert the grant of the licence is likely to interfere with a number of sites of particular significance to the Gooniyandi people. I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant, as required by s 237 of the Native Title Act:
a)Will the grant interfere directly with the carrying on of the community or social activities of the Gooniyandi people?
i.What are the social and community activities and where do they take place?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Meridian’s proposed activities?
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
b)Will the grant interfere with areas or sites of particular significance to the Gooniyandi people?
i.Are there any sites of particular significance?
ii.What are Meridian’s proposed activities in relation to these sites?
iii.Will the regulatory regime be sufficient to protect these sites?
I must also inquire into whether the grant will be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. However, the Gooniyandi people do not contend the grant of the licence is likely to involve, or create such rights. The State submits there is nothing in the nature of the licence which would likely result in any major disturbance to land or waters. Based on the evidence before me, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.

Will the grant interfere directly with the carrying on of the community or social activities of the Gooniyandi people?

In considering this issue, I note the following principles:
·The inquiry into interference with community or social activities is contextual, and I may have regard to other factors that might constrain the community or social activities (see Smith v Western Australia at [23]-[27]).
·I must determine whether the proposed future act is likely to be the proximate cause of interference (see Smith v Western Australia at [23]-[27]).
·The level of interference with community or social activities must be substantial rather than trivial (see Smith v Western Australia at [23]-[27]).

i.What are the social or community activities and where do they take place?

Ms Malo states the Gooniyandi people use the area of the licence every day to practice a number of community and social activities. It is relevant that an Aboriginal community, Muludja, is in the south west portion of the licence, and Fossil Downs is in the north west portion, with approximately three kilometres separating these locations. I also note a portion of the Margaret River runs through the south of the licence, in an east-west direction. To put the area into context, Ms Malo indicates the 'tenement area was historically a place of major camp and community residence' and that due to weather conditions and geographical features in the area over the years, the community had lived on both sides of the river and in relation to the country, they 'walk onto it every day' (at 57-58).
Ms Malo states:
·‘Every day people from my community go hunting and fishing on the exploration licence area. It is harder for families to afford to buy food in town...we now rely more on food we catch or collect from the exploration licence area’ (at 17);
·‘We hunt for bush turkey, kangaroo and goanna. The goanna hunting is best between our community and Fossil Downs’ (at 18);
·In the southern section of the exploration licence ‘we catch kangaroo, and ...someone is always there looking for ashes to make their tobacco, every day...The area was burnt by the Gooniyandi Rangers this year which was planned with Gooniyandi senior people as the right place and proper way to care for country’ (at 22);
· 'There is water and fishing in the River all year round' (at 25) and goes into detail about the nature and frequency of fishing activities;
· ‘There are two main types of medicines that I can only collect easily from the hill country in the north of the exploration licence area. If I could not collect the medicines there then I would have to travel a long way. There is no other places close by I collect medicine as they are only found in the limestone next to the spring country ridge which is in the exploration licence area’ (at 34). ‘Walaba it is a shady plant with yellow flowers, it is poisonous for the cattle but it is medicine for us’ (at 35), and ‘[t]he other bush medicine I can only get from the limestone in the north of the exploration licence area is one that the ants use the spinifex to make a black waxy substance, we grind it and use with babies or for cold sickness’ (at 36);
·‘The children camp on the river on the exploration licence area overnight regularly’ (at 38). ‘The boys walk down the river one side, swim across the river or float across on a log and then walk back the other side of the river...If explorers are on the exploration licence area then it would be more dangerous for our young people to do their hunting and camping unsupervised which will affect their independence and own growth and knowledge of Gooniyandi culture’ (at 40).
Ms Malo notes there are a number of Aboriginal communities within easy driving distance of the licence, and Tribunal mapping indicates approximately 12 Aboriginal communities within 20 kilometres of the licence. The area of the Muludja community and its surrounds (running south of the river in an east-west direction through the south of the licence) is reserve land under the management of the Aboriginal Lands Trust and is designated for the Use and Benefit of Aboriginal Inhabitants. Given its designated use, I assume this reserve would have provided protection to the interests of the Muludja community and prevented interference with their activities in the reserve area, including any exploration licences that were granted over the area. A condition to be placed on the grant of the exploration licence states that the prior consent of the Minister responsible for the Mining Act is required prior to Meridian commencing any activities over the reserve. It is likely that previous mining tenements granted over the reserve would have attracted a similar condition and, therefore, I am satisfied the activities of the Gooniyandi people conducted within the reserve would have experienced little to no interference from other interests in the area. In addition, Meridian indicates it will not explore in the reserve area. As such, I focus on the area outside of the reserve, and within the exploration licence.
Ms Malo provides details of an old and a new ceremony ground, which she describes as both located in the licence, which are used specifically for men’s business. Ms Malo has argued both grounds are sites of particular significance, and therefore I will discuss them further in that context later in this decision. However, I also consider the ceremonies themselves to be relevant evidence of community or social activities and so give them consideration here as well. Ms Malo says the old ceremony grounds are located in the top part of the exploration licence on the ‘left side of Fossil Downs road’ and ‘not in the red box on the map’, but 'further south'. The map affixed to her affidavit, which is in colour, shows the only red box like feature on the map is the buffer zone for a site registered by the Department of Aboriginal Affairs as ‘painted rocks’ (site ID 14408).
The location Ms Malo describes can be estimated to be a triangular area of approx 0.03 square kilometres, resting between the north west border of the licence, the road, and the buffer zone for the painted rocks site. Ms Malo goes on to say the site for this ceremony has now ‘moved closer to the community, also in the exploration licence area’. However, no further information describing its location is provided by Ms Malo, and it is clear this is a sensitive area for the community as it is a men's site with restricted access. The State contends that, based on Ms Malo’s description, the new ceremony area could be located within the reserve area covering the Muludja community. However, the Gooniyandi’s reply to this contention is that it is unlikely a men’s site with restricted access would be located within the community. I accept that contention in reply, and accept that both the old and the current ceremony sites are within the licence, and not within the reserve area.
Ms Malo describes the protocols surrounding ceremony ground, stating access is restricted to men who are accompanied by a senior law man. She says the ground is cursed and people will get sick and die if you do not go out there the proper Gooniyandi law way. She also describes the need for everyone in the area who is not involved in the ceremony to be quiet when ceremony occurs. She states if ‘a dog barked then it would die, everyone who was not involved in the ceremony had to be very careful not to make noise even when they were walking. If you stepped loudly on a stick and it broke, your bone would break also...This is a very strong ceremony and is not connected to initiation ceremonies and is about country’ (at 52). Ms Malo also states that, when the men go to do ceremony, the women must hunt and prepare food as it is their duty to feed those in ceremony. She says it is important they can hunt near the ceremony ground in the exploration licence during this time, rather than having to go further away, as they have many mouths to feed (at 55).
The Tribunal may only have regard to activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant registered native title rights and interests are: the right to access and move about on the area; the right to camp and erect shelters; the right to hunt, gather and fish; the right to take flora and fauna; the right to engage in cultural activities; the right to conduct ceremonies; and the right to maintain and protect places of importance under traditional laws and customs. I accept the activities identified by Ms Malo are consistent with these rights and interests.
I am satisfied, based on the evidence in Ms Malo’s affidavit, that a number of community and social activities are conducted by the Gooniyandi people within the exploration licence, particularly between the Muludja community and Fossil Downs to the north of the licence. The hunting is tied to the ceremony activities, and medicine is gathered, with similar medicine said to be some distance away and which cannot be easily found outside of the limestone hill area in the north of the licence. The Gooniyandi people, including unsupervised young people, also fish and regularly camp overnight along the river, which runs along the boundary of the reserve, but which is not within the reserve. Finally, there is an important men’s ceremony ground located within the exploration licence that is still used. I appreciate there are sensitivities around precisely locating such a site, and accept it is within the licence, somewhere between the old site and the community, but not within the reserve land.
ii.Are there any other interests which have already interfered with these activities?
The majority of the exploration licence is covered by two pastoral leases. I must take into account other lawful activities, such as those of pastoralists, which are likely to have already impacted on the community or social activities of the Gooniyandi people. The extent of those activities is important to consider in particular because the Native Title Act specifies that a pastoralist’s activities will prevail over any native title rights and interests, although do not extinguish them (s 44H). Therefore, in circumstances where the area is overlapped by a pastoral lease, the Tribunal may draw the conclusion that some interference with the native title group’s community or social activities is likely to have already occurred, depending on the circumstances. What sets this matter apart is the Gooniyandi’s contention (confirmed by the Tribunal’s Register of Indigenous Land Use Agreement) that the Gooniyandi people have Indigenous Land Use Agreements in place with both pastoral lease holders in this area. Therefore, I cannot automatically conclude the usual interference by pastoral activity is likely to have already occurred, as the agreements are likely to have mitigated this. Further, Ms Malo has provided evidence which specifically states: entry onto the pastoral lease areas is not restricted; they have good communication with the people running the pastoral leases; and the Gooniyandi people are free to conduct their activities unimpinged.
The State and Meridian have both made reference to prior exploration licences that were granted in the area, in particular exploration licence E04/1108 held by Meridian between 1999 and 2013, which overlapped 81 per cent of the current exploration licence. The State submits this shows Gooniyandi’s community and social activities have already been subject to, or coexistent with, exploration activities for a significant period of time. It argues that no evidence has been put forward by the Gooniyandi people to suggest these past exploration activities have interfered with their community and social activities, therefore, the logical conclusion should be that this exploration licence will similarly not interfere.
A fact I consider important to my reasoning on this point is that Meridian and Gooniyandi were parties to a Native Title and Heritage Protection Agreement until June 2013. Meridian’s submissions state the agreement lapsed when the Federal Court made a determination of native title in favour of the Gooniyandi people. Meridian also state that, as part of this agreement, it had an established heritage protection and work clearance protocol with Gooniyandi. Meridian has provided clearance information that was produced as a result of a 2007 heritage survey. This information and the Meridian contentions specify the limestone outcrops and hills region in the north west of the current exploration licence were not cleared by Gooniyandi for surveying or for any part of Meridian’s work program, and the remainder of the licence was cleared for a 'proposed gravity survey' (at 40-42). The Gooniyandi reply states the area was only cleared for certain activities and this is not a 'green light' for all activities. They also state a 2007 survey ‘may have little relevance to heritage protection issues eight years later’ (at 15) because of natural variations in flora and fauna distribution and the conduct of social and community life over time.
Based on this information, it would seem previous exploration activity in the area did not take place in the hills region and the limestone outcrops, therefore, it would not have interfered with Gooniyandi activities there. In addition, in relation to those areas and the remainder of the licence, as there was an agreement in place between Gooniyandi and Meridian during the life of the previous exploration licence which provided some mechanisms for clearance of an area prior to exploration activity, I am not prepared to conclude the grant of this exploration licence will only pose the same likelihood of interference.

The evidence supports that the Gooniyandi people have experienced relatively little interference with their community or social activities from other interests operating in the area. The reserve covering the Muludja community is designated for the Use and Benefit of Aboriginal Inhabitants and it is clear the community do frequently use the area for activities unimpinged. In the wider exploration licence area, agreements have been reached between Gooniyandi and other interest holders which have provided for consultation regarding, and protection of, native title rights and interests of the Gooniyandi people, providing continued access to the land and avoiding interference with their community or social activities.
iii.What are Meridian’s proposed activities?
The licence forms part of Meridian’s Lennard Shelf project which involves active exploration for lead and zinc. Meridian states it has no plans to explore in the reserve area overlapping the Muludja community. Meridian’s contentions state the initial program of work will involve some soil sampling, and possibly an Induced Polarization geophysical survey. It is stated this exploration will not involve the grading of any new tracks. I note State documents indicate there are 13 tracks on the licence and three minor roads. Meridian states that when it determines it will carry out high impact exploration such as drilling (most likely in conjunction with exploration on its other tenements in the region) it will notify and consult with the Gooniyandi people ‘pursuant to a heritage protection agreement (should one exist at the time)’. I note there is no current agreement between Meridian and the Gooniyandi people, and the State has not indicated it intends to impose a Regional Standard Heritage Agreement condition on the grant. As such, I am not prepared to give weight to the suggestion that a heritage protection agreement (and the notification and consultation that would accompany it) may exist in the future.
I am satisfied exploration activities are unlikely to be conducted in the area of the Muludja community and reserve. However, it seems likely that in the course of its exploration program, Meridian will exercise its right to conduct high impact, ground disturbing work in other parts of the licence. If granted, the licence will authorise Meridian to conduct a number of activities which may include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and to excavate, extract or remove such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), reg 20).
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
Evidence shows the licence is used regularly by the Gooniyandi people for hunting, fishing, gathering medicine and conducting ceremony. The area is used frequently and plays an important part in the lives of the Gooniyandi people, and in particular those residing in the Muludja community. In assessing whether the grant of the licence is likely to interfere directly and substantially with these community or social activities, I have taken into account the following:
·The fact there is a community situated on the licence indicates the Gooniyandi people intensively use the area around the community and within the licence, not only the reserve land area. As such, there is more likelihood exploration activity could interfere with the social or community activities. It is reasonable to conclude the closer a community is to a licence, the more likely community or social activities will be conducted intensely nearby, and so it would take fewer activities in nature and extent on the part of an explorer to interfere with Gooniyandi activities;
·Ms Malo’s evidence highlights there are some activities which are restricted to certain areas within the licence not covered by the reserve, including the collection of certain bush medicines and a men’s ceremony. Ms Malo explains the need for silence in the area when the men are conducting ceremony and it would seem likely that noise created by high impact exploration could constitute substantial and direct interference to this activity;
·An ILUA between Gooniyandi and the two pastoral lease holders which includes the licence means the types of issues normally factored into assessing the likelihood of interference by a pastoral lease do not automatically occur. Further, Ms Malo has specifically stated her community has free access to these areas to carry out community and social activities. I infer from her affidavit that the type of restrictions which may otherwise be placed on native title holders engaging in traditional activities on some pastoral leases do not occur in this instance. I further infer the Gooniyandi people are relatively free to enter the pastoral leases and engage in traditional activities without undue restrictions;
·There have been previous exploration licences granted over the area of this licence, however, the only previous licence I have received any detailed evidence on was operating under the terms of a Native Title and Heritage Protection Agreement between Gooniyandi and Meridian. Therefore, I cannot assume interference is likely to have already occurred, as it is clear there was an agreed process for consultation and clearance to assist in minimising or avoiding interference. Further or alternatively, I cannot assume the interference in this matter would be the same as or no more than it was under the previous exploration licence, as those processes will not necessarily be available to the Gooniyandi people;
·It is apparent from Meridian’s submissions that high impact ground disturbing activities are likely to take place at some stage, should the licence be granted. I am satisfied that Meridian will not conduct these activities within the reserve that covers Muludja community, however, Meridian has provided no other indication of the areas it will be operating in.
I find the grant of the exploration licence is likely to substantially and directly interfere with the Gooniyandi people’s community or social activities.

Will the grant interfere with areas or sites of particular significance to the Gooniyandi people?

In considering this issue, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at [34]-[35]).
·To be of particular significance, the site must be capable of identification (Silverv Northern Territory at [91]) and its significance explained.
·I must analyse very carefully any material on potential interference with a site of particular significance, because of the importance that area or site has to native title holders. Much will depend on the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory at [88]).
·Even slight interference may be unacceptable but it must involve physical intervention.
·There must be a real chance or risk of interference with the site/area, not just a possible chance.
·I will give weight to State’s heritage and regulatory regime.
i.Are there any sites of particular significance?
Ms Malo refers to an old ceremonial ground, known as Maranybi, which I have already described in some detail. In addition to explaining the site is restricted to law men, Ms Malo states this ceremony travels along the Kangaroo songline, which is the major song line that joins Gooniyandi to other Indigenous people across Australia. As noted, Ms Malo’s description of the old ceremony ground location points to a small area directly adjacent to the Fossil Downs Road on the western edge of the licence. She says sometimes ‘our ceremony and law moves but the ground remains sacred’ (at 53). I accept that even if this is not the exact location of the old ceremony ground, it does lie within the exploration licence, as Ms Malo has been clear in stating that. Ms Malo also makes reference to the new ceremony ground which is located ‘closer to the community’. Ms Malo states this site is 'very significant' and is the current men’s business area for all Gooniyandi for this type of ceremony. She states ceremony along this line ‘is for healthy country and parts of the ceremony and significance must remain a secret and I cannot tell you about it’ (at 54).
The State argues that I could infer the old ceremony ground is outside the exploration licence, and that it is a 'tiny' area if it is within the licence. While I agree the area Ms Malo’s describes seems small in the context of the entire licence, it does in fact measure approximately 200 metres east to west and 300 metres north to south. If the State’s argument implies this area would be too small to conduct a ceremony, then I would need further evidence to support such a contention. As it stands, I see no reason why ceremony could not have been held in such a space. In relation to the new ceremony grounds, the State has argued it could be inferred it is located within the reserve covering Muludja community. Gooniyandi has responded to this argument, stating it would be unlikely for a men’s restricted place to be located within a community. I am satisfied both the old and new ceremony grounds are located within the licence and not within the reserve.
The State contends it should not be found the ceremony grounds are sites of particular significance as Ms Malo, as a woman, does not establish her capacity or authority to speak in relation to a men’s site. Further, given she has stated it is not an initiation site, that is a law ground, then its precise significance is unclear. I reject this contention by the State. Ms Malo established her capacity to speak for this area at the beginning of her affidavit. The Gooniyandi reply states it is entirely logical for a female community member to have knowledge about restricted men’s sites in the area and I agree this seems a reasonable assumption. The reply also outlines Ms Malo's affidavit was deposed in the presence of three male Gooniyandi traditional owners, and Ms Malo's affidavit refers to the old men sitting with her 'as I make this affidavit' (at 59 and 66). I accept this as indicating there is no issue in the community as to who has authority to depose to the significance of the traditional male ceremonial grounds. I also do not agree with the State’s contention that the site’s precise significance is unclear.
Ms Malo outlines a number of other sites which she states exist in the licence and are of particular significance to the Gooniyandi people:
·Multiple burial and birth sites, including loongmarni, which is said to be located in the ‘top part’ of the licence. Ms Malo states there are more burial places where the spring comes down into the exploration licence area beside the burial place registered with DAA at the top of the exploration. The DAA list of registered Aboriginal sites shows there are two burial sites in the north west of the licence, one which has a large exclusion area, and also the painted rocks site (ID 14408) which is a restricted or closed painting and skeletal material burial site. In relation to burial places, Ms Malo states there are many old camps at Fossil Downs and along Margaret River. I note the Margaret River runs through the licence in an east-west direction outside of the reserve area - Ms Malo states the river is the location for ceremony connected to death and burial and is an important area. Ms Malo states 'it’s important that explorer does not dig up the remains of our old people’.
·A dreaming rock in the middle top part of the licence which is important for intergenerational teaching about passing into other people’s country without permission.
·A painted cave, ngangangnarlee, which Ms Malo says borders on the outside of the licence.
I must consider whether these sites are of particular significance to Gooniyandi in accordance with their traditions. This question is a precondition to the inquiry into whether the grant of the licence is likely to cause interference with areas or sites of this kind (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). I accept the following sites have been sufficiently identified as existing on the licence, their significance explained, their significance distinguished from other areas within the licence, and they are of more than ordinary significance to the Gooniyandi people in accordance with their traditions:
·The old and new ceremony grounds
·Burial sites in the north of the licence, which are near to DAA sites but which are not those sites
I do not consider there is sufficient information for me to conclude the dreaming rock, the painted cave or the birthing sites are sites of particular significance for the purposes of this inquiry, although I have no doubt they are important to the Gooniyandi people.
ii.What are Meridian’s proposed activities in relation to these sites?
Meridian states it does not intend to explore in the area south of the river. The area south of the river is where the Aboriginal community lies, together with the reserve land. However, it does indicate it will carry out high impact exploration such as drilling. They also refer to ‘several target areas’ for further exploration, but do not indicate where these are. Under the Mining Act, Meridian can extract up to 1000 tonnes of material from the licence. If, for example, this 1000 tonnes came from several target areas, and those areas were in or near burial sites, or ceremony grounds, that would be direct physical interference with sites of particular significance.
iii.Will the regulatory regime be sufficient to protect these sites?
In deciding whether the activities of Meridian will interfere with the sites of particular significance, I must consider any protection that may be found in the regulatory regime. Meridian have indicated positive intentions in relation to consultation with the Gooniyandi people, however, there is no agreement in place or evidence as to how that consultation will occur, particularly in relation to the sites of particular significance which Ms Malo identified. The State do not intend to impose a condition on the grant of the licence allowing the Gooniyandi to request Meridian execute an RSHA. High impact activities will be conducted in several target areas, and the sensitive nature of the sites of particular significance, and their importance to the Gooniyandi people, means such activities will have a real chance of physically interfering with them.
For the purpose of this inquiry, I conclude the activities of Meridian are likely to interfere with areas or sites of particular significance to the Gooniyandi people.

Conclusion

Community or social activities which are carried on within the licence have been described, and I am satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Regarding areas or sites of particular significance to the Gooniyandi people, sufficient evidence has been provided to support a finding that sites of particular significance exist on the exploration licence, and that these sites are likely to be interfered with by the exploration activities of Meridian. There is no evidence the grant of the licences is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2334 to Meridian (Lennard Shelf Project) Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
23 July 2015

Appendix A: Draft Tenement Endorsement and Conditions

The grant of the exploration licence will be subject to the following conditions:

All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
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.
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aboriginal Inhabitants Reserve 39301.
No interference with Geodetic Survey Station SSM-R 319 and SMM- and mining within 145 metres thereof being confined to below a depth of 15 metres from the natural surface.
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:

The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The land the subject of this Licence affects a Heritage Place No. 697 registered pursuant to the Heritage of WA Act 1990.

In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

The Licensee’s 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
· Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from 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.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Surface Water Areas (Fitzroy River and Tributaries) the following endorsements apply:

The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation.
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:

The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.