Keith Narrier and Others on behalf of Tjiwarl v Enterprise Uranium Ltd and Another
[2016] NNTTA 19
•20 May 2016
NATIONAL NATIVE TITLE TRIBUNAL
Keith Narrier and Others on behalf of Tjiwarl v Enterprise Uranium Ltd and Another [2016] NNTTA 19 (20 May 2016)
Application No: WO2015/0186
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
Keith Narrier and Others on behalf of Tjiwarl (WC2011/009) (native title party)
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Enterprise Uranium Ltd (grantee party)
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The 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: 20 May 2016
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 not attracted
Legislation:Native Title Act 1993 (Cth), ss 31, 109, 151(2), 162(2), 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA), s 51C(c)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Keith Narrier and Others on behalf of Tjiwarl v Sammy Resources Pty Ltd and Another [2015] NNTTA 14 (‘Narrier v Sammy Resources’)
Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’)
Barbara Sturt and Others on behalf of Jaru v Baibao Resources Pty Ltd and Another [2015] NNTTA 38 (‘Sturt v Baibao Resources’)
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd [2007] NNTTA 37 (‘WF v Globe Uranium’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another [2015] NNTTA 30 (‘Yurriyangem Taam v Baibao Resources’)
Representatives of the Mr Mike Allbrook, Central Desert Native Title Services Ltd
native title party: Mr Gavin Dunn, Central Desert Native Title Services Ltd
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Dermot Ryan, Enterprise Metals Ltd
grantee party:
REASONS FOR DETERMINATION
This decision considers whether the State Government of Western Australia can grant exploration licence E57/994 (the licence) to Enterprise Uranium Ltd without the normal requirement for negotiations with the Tjiwarl people. The licence is located 64 kilometres north east of Sandstone in the Shire of Sandstone, and 60.71 per cent of the 54 graticular blocks (approximately 164.1609 square kilometres) of the licence is overlapped by the Tjiwarl registered native title claim. The public notice issued for the licence included a statement that the State considers the negotiating parties do not need to negotiate in good faith with a view to obtaining the agreement of relevant native title parties to the grant of the licence, and that the expedited procedure should apply instead. Tjiwarl lodged an objection with the National Native Title Tribunal against the assertion that the expedited procedure applied to the grant of this licence.
I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies.
My task is to determine whether the grant of the licence is an act attracting the expedited procedure (in which case the State can grant the licence to Enterprise Uranium without negotiations with Tjiwarl) or it is not an act attracting the expedited procedure (meaning Enterprise Uranium, Tjiwarl and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence). My decision on this must be based on the criteria set out in s 237 of the Native Title Act 1983 (Cth) (the Act). Specifically, I must determine whether the grant of the licence is likely to:
a)directly interfere with community or social activities carried on by Tjiwarl;
b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holders; or
c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Accompanying Tjiwarl’s statement of contentions was the affidavit of Mr Kado Muir. Mr Muir states he is a traditional owner and wati, or lawman, for the country covered by the licence, a member of the native title claim group and an Applicant for Tjiwarl. I accept the affidavit as provided by Tjiwarl and I accept the deponent has authority to speak in his stated capacity for the area of the licence.
I have considered the written material provided to the Tribunal in relation to the expedited procedure objection application. At the request of the State, I convened a hearing with all parties to ventilate some final issues in dispute prior. All references to oral submissions in the remainder of this decision were entered into evidence at that hearing. I am satisfied it is appropriate to deal with this inquiry ‘on the papers’ (that is, without further hearings), pursuant to s 151(2) of the Act. A map was generated by the Tribunal’s Geospatial team and circulated to the parties. No party objected to the map being used in this inquiry.
Tjiwarl’s contentions argue the grant of the licence, and the exercise by Enterprise Uranium of the rights afforded to it by that grant, are contrary to s 237(a) and 237(b) of the Act. That is, they argue the grant is likely to cause interference with Tjiwarl’s community or social activities; and, it is likely to directly interfere with areas or sites of particular significance to Tjiwarl.
As noted at [3], 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, Tjiwarl does not argue this point. Based on the limited evidence before me on that issue, 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.
On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Is the grant likely to substantially and directly interfere with the carrying on of Tjiwarl’s community or social activities?
i.What are the community or social activities of Tjiwarl?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Enterprise Uranium’s proposed activities?
iv.Conclusion
b)Is there a real risk of interference to areas or sites of particular significance to Tjiwarl?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.Conclusion
a)Is the grant likely to substantially and directly interfere with the carrying on of community or social activities of Tjiwarl?
Before outlining the evidence in this matter, I note I may only have regard to community or social 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 may be summarised as the right to: access, remain in and to use the land for any purpose; access resources and to take for any purpose resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; protect resources and the habitat of living resources in that area.
What are the community or social activities of Tjiwarl?
Mr Muir states in his affidavit that the community activities carried out by the Tjiwarl native title claimants in the licence involves accessing the area for hunting and camping. The licence is located approximately 120km and 180km from the townships of Wiluna and Leonora respectively. Mr Muir explains that the Tjiwarl claimants access the licence area by vehicle from the proximate communities of Wiluna or Leonora, and camp there with their families in the vacant Crown land. During these times, they take water and hunt native animals, including kangaroo, emu and goanna, and use tracks that run through the area to reach places like Bolitho Bore and Snake Well. Mr Muir states he undertakes these activities ‘once or twice a year’, although other members of the claim group travel there ‘once a month’. I note the State’s evidence indicates there are 14 tracks within the licence.
Are there any other interests which have already interfered with these activities?
I must take into account other lawful activities which are likely to have already impacted on the community or social activities of Tjiwarl. Evidence provided by the Department of Mines and Petroleum (DMP) shows the licence is almost entirely overlapped by vacant Crown land (99.8 per cent), with a small portion of road reserve (< 0.1 per cent).
The licence has been subject to a number of previous exploration licences, active between 1993 and 2014 and overlapping the licence between 0.1 to 39 per cent. The State contend that prior mineral exploration over the licence is likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area. The State provides details of expenditure in relation to some of the dead tenements, noting that E57/897 overlapped 37 per cent of the licence area and had a recorded expenditure in the year ending 2013 of $10,999, while E57/382 overlapped the licence area by 39 per cent and had a recorded expenditure in the year ending 1998 of $28,812.
Tjiwarl’s contentions in reply argue the State’s evidence of past expenditure in the licence area is not indicative of the level of works generally conducted in the past. Tjiwarl submit the State’s assertions to this effect should be disregarded, or in the alternative, given little probative weight.
In oral submissions, the representative for the State argued it could not respond to Tjiwarl’s assertions on this issue, as it is only able to provide publicly available information regarding expenditure and not more specific details. The State asserted that greater expenditure is indicative of more extensive prior mining, noting there is a cap on the amount of administrative costs that grantee parties can record as expenditure. The State further contended that their submitted evidence of expenditure remains relevant, and it is for the Tribunal to afford it the appropriate weight in each case, with regard to such factors as the length of the grant and the degree of overlap with the licence.
In oral submissions on this issue, the representative for Enterprise Uranium commented that he has undertaken a review of previous works on the licence area and noted there have been ‘two generations’ of tenements which involved exploration on the lake and drilling holes. By ‘the lake’, I take it to refer to Lake Mason, which is indicated in the State’s Quick Appraisal. Lake Mason is shown on Tribunal mapping and the Department of Aboriginal Affairs (DAA) Heritage Inquiry System map to be in the south west of the licence, and extending directly across the length of the licence and outside the licence to the south and the east.
I agree with the State that evidence of prior exploration expenditure is to be afforded the appropriate probative weight on a case by case basis. The evidence before me is that there has been exploration previously carried out which has potentially impacted upon Tjiwarl’s community and social activities to some extent.
Mr Muir states in his affidavit that the mere presence of others will interfere with the Tjiwarl’s ability to use weapons to hunt in the licence area, and notes that one miscellaneous licence (L57/45) is the only current mining interest which may affect Tjiwarl’s claim of exclusive possession in the licence area. Tjiwarl’s contentions also highlight the limited nature of current mining interests in the licence area.
The State notes that these assertions imply a right to control access to the area which is not, at present, an existing right. The State point out that a decision regarding the application of s 47B in the Tjiwarl proceedings is currently reserved by the Federal Court and it is inappropriate to assume the outcome will involve a beneficial interpretation of that provision. In their reply, Tjiwarl clarify their contentions in this regard were intended only to demonstrate there are no other interests capable of interfering with their claimed right of exclusive possession, and were not intended to go directly to the prospects of success in the Federal Court proceedings.
What are Enterprise Uranium’s proposed activities?
Enterprise Uranium has not submitted any contentions or evidence in this inquiry. The State’s contentions annex a statutory declaration from Mr Dermot Ryan on behalf of Enterprise Uranium, which expresses an offer to enter into a Regional Standard Heritage Agreement (RSHA) with Tjiwarl should they wish to accept it.
The State’s contentions also indicate that, in addition to the other conditions and endorsements it intends to place on the grant of the licence, the following condition is to be offered:
In respect of the area covered by the licence the licensee, if so requested in writing by the Tjiwarl people the applicants in Federal Court application No WC2011/009, such request being sent by pre-paid post to reach the licensee’s address not more than thirty days after the grant of this licence shall within thirty days of the request execute in favour of the Tjiwarl people the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (eg. The Goldfields/ South West/ Ngaanyatjarra/ Yamatji Land and Sea Council) and offered by the Native Title Party or their representative.
Tjiwarl’s contentions in reply state Enterprise Uranium’s statutory declaration is not evidence that it will enter into an RSHA with them if the Tribunal finds that the expedited procedure is attracted, or that it will work with the Tjiwarl to avoid disturbance to areas or sites of particular significance in the absence of an RSHA being entered into. Given the State has indicated its intention to impose offering to enter into an RSHA as a condition of grant, I am prepared to proceed on the assumption that the RSHA condition will be enforced following this determination, should Tjiwarl request such an agreement.
Tjiwarl’s contentions and Mr Muir’s affidavit express concerns regarding their understanding that Enterprise Uranium intends to focus its exploration on uranium, particularly in relation to Bolitho Bore. Mr Muir indicates this concern arises because members of the Tjiwarl claimants and other members of the Aboriginal community ‘know that uranium is harmful to plants and animals’, and that this may lead to sickness from radiation poisoning through consuming contaminated drinking water and meat. He also expresses concerns that explorers might leave samples of radioactive metals on the surface of the lake, or spread radioactive dust from their exploration activities in the area. Mapping provided by the Tjiwarl shows Bolitho Bore in approximately the centre of the licence and at the edge of Lake Mason.
Tjiwarl’s contentions annex an extract from the Enterprise Uranium’s website which depicts its uranium projects across Western Australia. In oral submissions, Tjiwarl’s representative asserted that it is apparent from this evidence that the company is exploring for uranium. In oral submissions in response, Enterprise Uranium’s representative maintained that it is a multi-commodity explorer, and its exploration licence application is for an ‘all minerals’ tenement. Enterprise Uranium’s statement accompanying its exploration licence application, annexed to the DMP’s evidence, describes a ‘prominent uranium anomaly around the flanks of Lake Mason’, and states there is gold, iron ore and uranium, and drilling is proposed in both year one and year two, with no further detail given.
The licence, if granted, will authorise Enterprise Uranium to rights as set out in s 66 of the Mining Act 1978 (WA) and reg 20 of the Mining Regulations 1981 (WA). Subject to the various conditions placed on the grant, these rights include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes. These rights will be granted for a period of five years with options for renewal.
In terms of Tjiwarl’s contentions and evidence regarding uranium, I agree with the State that these demonstrate an overall position that has been adopted, and cannot be relied upon to establish the existence of the asserted risk. However, in the absence of evidence from Enterprise Uranium regarding its more specific proposed exploration activities, I make this determination on the assumption that, should the licence be granted, it may exercise the full suite of rights afforded to it under the Mining Act.
I accept the State’s evidence, provided in oral submissions, that once a program of works is submitted which identifies an intention to undertake uranium exploration, the State would add further endorsements and conditions on the grant to specifically address uranium safety and associated environmental measures. A program of works is required by the DMP prior to any ground disturbing activity with mechanised equipment.
Conclusion
I must consider the activities currently being undertaken on the licence by Tjiwarl which I have found to be relevant to s 237(a), and weigh these against the activities Enterprise Uranium is likely to undertake if the licence is granted.
I accept the evidence that the Tjiwarl people undertake hunting and related activities in the licence area. However, I agree with the State that neither the Tjiwarl’s contentions nor Mr Muir’s affidavit provide sufficient information on the duration of the stays in the licence area, how many people attend the area more than once or twice per year, or once per month, and whether the activities can take place elsewhere in the claim area. The Tjiwarl state they hunt goanna, kangaroo and emu, and that I can infer they stay longer than a day, given the distance people come from Wiluna and Leonora. For me to be able to draw such inferences, I do need more evidence than has been presented. What I can infer is that it is likely hunting goanna, kangaroo and emu can take place elsewhere on the claim.
As I have indicated in previous decisions, highlighted by the State in their contentions, this type of information is in the particular knowledge of the claimant, and in the absence of evidence to the contrary, the duration and frequency of the visits of the claimants to the licence area, which has been outlined, is such that activities of the grantee party are unlikely to directly interfere with the carrying on of those activities in the licence area (see, for example, Sturt v Baibao Resources at [27]-[28]).
I take into account the evidence provided in Tjiwarl’s reply that ‘any trip to the area of the Tenement to undertake hunting and camping activities will necessarily involve a considerable length of time necessary to undertake those activities’. The reply states that ‘hunting activities are intertwined with camping to such a degree that an inference should be drawn that the duration of such trips is at least longer than one day, and is likely to be longer – given the distance from Leonora and Wiluna’. Although this provides some clarification regarding timeframes for engaging in the relevant activities, it does not establish evidence of frequent use of the area, or use of a particular part of the licence more intensively than another, for example, apart from reference to camping around the lake and in the north of the licence.
I agree with the State that to the extent the evidence demonstrates that community and social activities are carried out on the licence area, there is unlikely to be direct interference given the size of the licence (164 square kilometres) and the apparent breadth of the Tjiwarl activities over the licence (as there is little indication the activities are concentrated in a certain area).
I agree with the State that hunting and mineral exploration activities are inherently capable of coexistence. Tjiwarl’s contentions in reply reject this, arguing, amongst other things, the evidence demonstrates Tjiwarl access the licence area for hunting and camping on a regular basis. Tjiwarl are also concerned about uranium as a specific exploration activity, affecting their use of the licence. I accept Enterprise Uranium may explore for uranium, however, there is little in Tjiwarl’s evidence to suggest the hunting activities are such that they will be directly and substantially interfered with by such exploration.
In the circumstances, I must assume in the absence of evidence from Tjiwarl to demonstrate otherwise, the particulars of the community or social activities taking place within the licence area are such that the activities of Enterprise Uranium are unlikely to directly or substantially interfere.
b) Is there a real risk of interference to areas or sites of particular significance to Tjiwarl?
Section 237(b) of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular – that is, more than ordinary – significance to Tjiwarl, in accordance with their traditions, within the licence. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.
What areas or sites are identified?
In his affidavit, Mr Muir states the licence is situated on Lake Mason, which in its entirety is an area of particular significance for Tjiwarl. He states that ‘the tjukurrpa inside the Tenement, and generally on Lake Mason, is part of the tjinkuna [dragon fly] and kuniya [carpet snake] Dreaming’. Mr Muir explains this is a very important Dreamtime story for all members of his community, including the Tjiwarl claim group, and is also known by other desert communities who share their laws and customs. He indicates that the Federal Court attended many of the sites associated with this Dreaming story last year, and says that he and other members of the Tjiwarl claim group gave evidence at those places.
Mr Muir provides further details regarding the tjinkuna and kuniya Dreaming stories in his affidavit. As this information appears to be sensitive, I do not repeat it verbatim here, save to say, Lake Mason features as an important part of the stories, and was created by creatures associated with the Dreaming and ‘is the continuation of the story that we protect as a Community’.
Mr Muir states that if the tjukurrpa in the licence is interfered with ‘we lose an important part of the story’, and if it is damaged ‘there would be punishment in the Aboriginal way; people will get sick or maybe even die if we don’t make sure that the special places in the Tenement are protected’. He says that if people want to go out to that country then they should bring people who know tjukurrpa with them to guide them through the area.
Tjiwarl’s contentions state the nature of the tjukurrpa is such that interference with one part of the tjukurrpa may cause interference to sites and/or country located at other points along the tjukurrpa. They assert the nature and number of sites and areas of particular significance around the licence are such that the operation of the Aboriginal Heritage Act 1972 (WA) (AHA) site protection regime would not necessarily mean interference pursuant to s 237(b) of the Act would be averted.
In his affidavit, Mr Muir also indicates the katawilli plant located in the licence area is created by, and connected to, the tjukurrpa. He outlines how the plant is connected to the tjukurrpa and how they are all interconnected with Lake Mason, as well as the importance of the plant seed and their connection with Lake Mason.
Tjiwarl’s contentions state that, as the katawilli plant is located in the licence area and is created by, and connected with, the tjukurrpa, it is therefore an area or site of particular significance.
Are any of these areas or sites of particular significance?
I must decide whether any of the sites or areas identified in the contentions and evidence are of particular significance to Tjiwarl in accordance with their traditions. This is a threshold question, preceding an inquiry as to whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
The State argues there is insufficient evidence in this matter to show there are any sites of particular significance, and points to the Tribunal’s findings in Yurriyangem Taam v Baibao Resources to support this conclusion. The State maintains it is not sufficient for a native title party to claim there are sites and areas of significance that traverse most of the licence area without providing any evidence with regards to those sites.
Although it is a relatively large area, and is not recorded on the DAA register of sites, I find that Lake Mason is a site of particular significance for the purpose of 237(b). I agree with Tjiwarl’s contentions in reply that the evidence submitted in this matter bears similarity to that in Narrier v Sammy Resources, in which a site related to the tjukurrpa story was found to be a site of particular significance. I note Mr Muir has explained the site’s location and the significance of the tjukurrpa that traverses the lake and the other areas of the licence to Tjiwarl, in accordance with their traditions, and has distinguished the lake from other features on and around the licence area (per the requirements outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara).
I agree with the State that there is insufficient evidence to explain how the katawilli plant is connected to the tjukurrpa in a way that makes the areas in which these plants grow around Lake Mason sites of particular significance. Tjiwarl has not provided information detailing the location of these sites, how many sites or areas exist, or how Enterprise Uranium’s exploration activities are likely to interfere with those areas. Therefore, without further detail, I find the katawilli plants in the licence are not sites of particular significance for the purposes of 237(b), although I have no doubt the plants and their seed are important to the Tjiwarl native title claimants.
Conclusion
Having concluded that Lake Mason is a site of particular significance on the licence, I turn to the issue of interference. As outlined in Yindjibarndi Aboriginal Corporation v FMG Pilbara, and accepted by the Federal Court in FMG Pilbara v Yindjibarndi Aboriginal Corporation, even slight interference may be unacceptable. The nature of the site, the nature of potential interference, and Tjiwarl’s laws and traditions are all important in drawing conclusions regarding interference. I must give weight to the State’s regulatory regime, and there must be a real chance or risk of interference with the site of particular significance, and not just a possible chance.
I note Mr Muir’s affidavit states there ‘are lots of times when you go out to a tjukurrpa site and you find that it is covered with drill holes that have not been capped or that people have left sample bags littered around’. The State contentions argue that Tjiwarl’s concerns about exploration activity in general, or things done by other grantee parties, are not sufficient to overcome an assumption that Enterprise Uranium will comply with the relevant regulatory regime. I agree with this argument.
In their contentions in reply, Tjiwarl state Mr Muir’s evidence regarding drill holes and litter in the proposed licence area is relevant because it demonstrates the State’s failure to enforce its own regulations and puts in doubt their ability to do so in this case. In oral submissions, Tjiwarl further argued the State did not address this issue, for example, by providing an affidavit from the Minister for Mines and Petroleum. In response, the State argued in oral submissions that it is not possible to respond to Tjiwarl’s assertions without details of tenements numbers, grantee parties involved and when these alleged instances of failure to enforce conditions occurred. Tjiwarl stated Mr Muir is not aware of tenement numbers and that the State is better placed to investigate these issues, and the State reiterated that it cannot investigate such matters without further details. Without further specific details in relation to the allegations, there is little further which can be concluded in relation to this inquiry.
In drawing conclusions in this matter, it is clear Tjiwarl have concerns about uranium mining on and around Lake Mason. Enterprise Uranium has not provided information or contentions in response to, or in relation to, the Tjiwarl concerns. While no adverse conclusions can be drawn from this, I note a previous Tribunal decision, WF v Globe Uranium, in which uranium mining was an issue.
In WF v Globe Uranium, the grantee party filed detailed contentions, including their program of works, and guidelines for mining uranium. The State provided affidavit evidence which outlines the regulatory regime in some detail, including details about Radiation Management Plans. In that matter, the information assisted the Tribunal to draw the conclusion that the expedited procedure did not apply. In the present matter, I understand Enterprise Uranium may drill for uranium in years one and two at least, and that drilling may be done where deposits have been suggested along the flanks of Lake Mason, and Bolitho Bore which sits on the north flank of Lake Mason.
Tjiwarl’s contentions are clear that inadvertent interference is distinctly possible if Enterprise Uranium enters the area of particular significance without guidance, and that the nature of the tjukurrpa is such that interference with one part of the tjukurrpa may cause interference to sites and/or country located at other points along the tjukurrpa. I believe neither the AHA nor the RSHA would provide the requisite protection for an area such as Lake Mason, as the threshold for interference is higher than that needed to constitute interference for the purposes of s 237(b).
For these reasons, I conclude Lake Mason is a site of particular significance to Tjiwarl in accordance with its traditions, and there is a real risk of interference with that site by Enterprise Uranium for the purposes of s 237(b) of the Act.
Conclusion
Tjiwarl has described its community or social activities carried on within the licence, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. However, I am satisfied that there is a site or area of particular significance to Tjiwarl on the licence, and that interference with this site may occur without further consultation with Enterprise Uranium. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E57/994 to Enterprise Uranium Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
20 May 2016
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