Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd
[2013] NNTTA 37
•10 April 2013
NATIONAL NATIVE TITLE TRIBUNAL
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2013] NNTTA 37 (10 April 2013)
Application No: WO2012/0785
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
Leedham Papertalk and Others on behalf Mullewa Wadjari (WC96/93) (native title party)
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The State of Western Australia (Government party)
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State Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 10 April 2013
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 of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia and Another (2002) 169 FLR 437
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representative of the Ms Shirley Feng, Corser & Corser
native title party:
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Matthew Clohessy, Emerald Tenement Services
grantee party:
REASONS FOR DETERMINATION
On 4 April 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1817 (‘the proposed licence’) to State Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises 89 graticular blocks (approximately 249.2 square kilometres) situated 165 kilometres north east of Kalbarri in the Shire of Murchison. The proposed licence is overlapped by the registered native title claim of the Mullewa Wadjari People (WC96/93 - registered from 19 August 1996) at 7.75 per cent. On 3 August 2012, Leedham Papertalk and others on behalf of the Mullewa Wadjari People (‘the native title party’) lodged an expedited procedure objection application (Form 4) with the Tribunal in respect of the proposed licence (designated by the Tribunal as matter number WO12/785). The proposed licence is also overlapped in its entirety by the registered native title claim of the Wajarri Yamatji (WC04/10), however, no objection application was lodged by Wajarri Yamatji in relation to the proposed licence.
On 31 August 2012, President Graeme Neate was appointed Member for the purposes of conducting an inquiry into the application. In accordance with standard practice, the Tribunal gave directions for the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Pursuant to those directions, the Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 23 November 2012; the native title party provided a statement of contentions on 3 December 2012 (‘NTP Contentions’); the Government party provided a statement of contentions on 20 December 2012 (‘GVP Contentions’); Grantee party submissions were due on 10 December 2012, however, these were not provided until 17 January 2013 at which time a statement of contentions was submitted (‘GP Contentions’).
On 17 January 2013, I was appointed by President Graeme Neate to constitute the Tribunal for the purpose of conducting the inquiry. The Tribunal provided a map to all parties on 23 January 2013 on which it intended to rely, and no party made any submissions or contentions in relation to that map.
I noted that the grantee party provided neither reasons for their late submission, nor a request to extend compliance dates and the native title party objected to the acceptance of the contentions on this basis. In response, the grantee party stated that the failure to comply on time was an oversight partially due to Christmas and New Year holiday disruptions. The Government party supported the grantee party’s request for the acceptance of their submissions. The Government party stated that, due to public holidays and the shutdown of many offices over the Christmas and New Year season, this failure to comply on time would not have substantially delayed the process or unfairly advantaged any party. I am satisfied that, for the reasons outlined by the Government party, the grantee party’s submissions can be accepted on this occasion. Parties were, however, reminded that submissions lodged beyond the set compliance date will not automatically be accepted. In situations such as this, it is preferable for an extension to compliance dates be sought prior to dates lapsing and that reasons for any delay are provided with the submissions.
On 4 February 2013, parties were provided with a further two weeks to submit any submissions in response to the grantee party contentions, but no party did so.
Having considered the material before me, I am satisfied that the objection can be adequately determined ‘on the papers’ in accordance with s 151(2) of the Act (that is, without a formal hearing).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia and Another (2002) 169 FLR 437, Deputy President Sumner considered the applicable legal principles (at [7]-[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).
Evidence in relation to the proposed act
Evidence provided by the Government party
The Government party has provided: a statement of contentions; Tengraph plan with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement application and the proposed endorsements and conditions of grant; the instrument of licence and first schedule listing the land included and excluded from the grant; and a Tengraph Quick Appraisal.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·Pastoral lease 3114/726 (New Forest) at 64.9 per cent;
·Pastoral lease 3114/867 (Yallalong) at 26.7 per cent;
·Pastoral lease 3114/959 (Wooleen) at 3.1 per cent; and
·Pastoral lease 3114/947 (Billabalong) at 5.3 per cent.
The proposed tenement area is also partially overlapped by PA67 Special Prospecting Authority (STP-SPA-0033) by 11.8 per cent.
The Quick Appraisal documentation establishes that the area within the proposed licence has been subject to 10 exploration licences that were active at various times between 1996 and 2002, and which overlapped the proposed licence area by between 0.1 and 47.2 per cent. Government contentions list an eleventh exploration licence, E09/1505, however, according to DMP evidence this tenement was never granted and, therefore, will have had no effect on the subject area. The Quick Appraisal shows that services affected include several tracks and fence lines as well as yards, wells and bores, windmills, non-perennial watercourses, an ‘unknown building’, and a standard survey mark (SSM-R 537).
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no registered sites within the proposed licence. However, the Aboriginal Sites Database does indicate the presence of an ‘other heritage place’, namely ‘Bugul Rock Hole’ (Site ID 19680; ceremonial, man-made structure, artefacts / scatter; lodged; open access; no restriction). Tribunal mapping indicates that this other heritage place is not within the 7.75 per cent overlap between the native title party claim and the proposed licence. In addition, Tribunal mapping indicates there are no Aboriginal communities located upon or near the area of the proposed licence.
A draft Tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licences and of certain exploration activities (Conditions 5-6).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the native title party
The evidence provided by the native title party consists of a statement of contentions. The native title party’s contentions are directed to each limb of s 237.
Section 237(a) – Community or Social Activities
The native title party’s contentions addressing its community and social activities are contained in paragraphs 9-14. They refer (at paragraphs 9-12) to the various activities associated with the collection and preparation of food and bush medicines within the proposed licence, including hunting, gathering and fishing. Specifically, the native title party state that they carry out fishing along the watercourses and camp at various breakaway areas in the proposed tenement, ‘particularly the areas close to Woodrarrung Range’ (at paragraph 11). The contentions state (at paragraph 10) that meats such as kangaroo, emu, wild turkey, lizards and snakes are usually cooked underground in accordance with the native title party’s traditions, or brought back to the community.
The contentions state that sap from the bimba tree, a highly valuable commodity to the native title party, is collected in and around the proposed tenement (at paragraph 12).
The native title party also contend that the proposed tenement area is an important travel route used by them when travelling from New Forest or Billabalong to Yallalong where various law grounds are situated (at paragraph 13).
The native title party contends (at paragraph 14) that exploration activities on the proposed licence are likely to ‘interfere directly with:
a)hunting, gathering, fishing and camping carried out by members of the Native Title Party on and around the Proposed Tenement area;
b)the travel route frequently used by the Native Title Party to attend sacred lore meetings, ceremonies and sites;
c)the balance of wildlife and food sources in and around the Proposed Tenement which will directly interfere with the Native Title Party’s hunting, foraging and fishing activities.’
The native title party further contends that, ‘if land on and around the Proposed Tenement is damaged, the Native Title Party will have to travel further and further out in order to hunt and gather food and resources’ (at paragraph 14).
Section 237(b) – Sites of particular significance
The contentions addressing sites or areas of particular significance (at paragraph 15-22) in summary state:
·‘The Proposed Tenement lies directly over wells and watercourses which are connected to the Murchison River’ (at paragraph 15);
·‘The Native Title Party’s dreamtime stories depict the Murchison River as a man-like spirit snake named the Bembara ... if the waterholes, springs and rockholes housing the Bembara are disturbed, the Native Title Party’s belief system teaches that the descendants of these spirits will experience misfortune, ill health and possibly death’ (at paragraph 16);
·‘[W]hen exploration activities are to occur without prior arrangements being put in place for the identification and protection of sacred sites and artifacts before the work is done, the Native Title Party harbor a widespread fear of the pending adverse consequences likely to befall them if and when the Bembara and their ancestors’ spirits are disturbed by damage to or interference with the places that they inhabit’ (at paragraph 16);
·‘The Native Title Party also believes that after death, the spirits of its deceased travel into the Murchison River and surrounding water bodies, including the permanent waterholes and springs on and near the Tenement area and back to the land itself. Accordingly, it is of vital importance to the Native Title Party that these sacred sites are not disturbed or damaged’ (at paragraph 17);
·‘[W]ells and watercourses within the Proposed Tenement provide fresh water to the Native Title Party’ while they are engaged in hunting, camping and other traditional activities (at paragraph 18);
·‘[T]here is a strong law requiring the Native Title Party to care for and protect places where its ancestors have lived, and particularly where they camped, carried out ceremonies and where they were buried. Due to the presence of breakaway country within the Proposed Tenement, as well as the close vicinity of vast breakaway country in Yallalong, there are likely to be undiscovered artifacts left behind by the ancestors of the Native Title Party who have camped in those areas’, the damage of which could affect the connection evidence obtained in support of a determination of native title (at paragraph 19);
·‘If the Grantee Party is granted the legal right to carry out exploration activities in the Proposed Tenement area without negotiation and consultation with the Native Title Party, there is a real risk of interference with significant sites in the area as well as damage to items left behind by the ancestors of the Native Title Party’ (at paragraph 21);
·‘The nature of some sites within the tenement area are such that even non ground disturbing work may cause interference with the sites to a level that is distressing to the Native Title Party and culturally inappropriate to a degree that would constitute interference for the purposes of s237(b)’ of the Act (at paragraph 21);
·Direct regional evidence of the negative impacts of mining activities in the absence of proper consultation ‘has already materialised at registered Tallering Peak site’ despite the protections afforded by the AHA, and ‘[t]he Native Title Party believes that it has failed to fulfil its duty of protecting the sacred sites and that the death of several members of the Native Title Party was the result of this failure’ (at paragraph 22); and
·The probability of further damage to sites is ‘increased in the present case as not all significant sites within the Proposed Tenement area are marked out on the Register of Aboriginal Sites’ (at paragraph 36).
I note, however, that the map provided to parties by the Tribunal shows no area called Tallering Peak in the vicinity of the proposed licence. It appears, from Tribunal ispatial services, that Tallering Peak is approximately 100 kilometres south of the proposed licence. In addition, there is no evidence linking the suspected damage at Tallering Peak referred to in the native title party contentions, to the activities of the grantee party in this matter.
Section 237(c) – Major disturbance to land or waters
In addressing the issue of major disturbance of land or waters, the native title party’s contentions state (at paragraph 23) that the grant of the proposed licence is likely to involve a major disturbance to the land and waters on and around the proposed licence and that the Tribunal should give particular consideration to:
·The proximity of the proposed licence to the Mullewa Wadjari communities;
·The frequent access and use of the proposed licence and surrounding areas as travel and hunting grounds by members of the native title party;
·The frequent carrying out of community and social activities within the proposed licence, such as hunting, gathering, fishing and camping; and
·The existence of unregistered sites within and around the proposed licence which are highly significant to the native title party’s tradition, customs and beliefs.
Evidence provided by the grantee party
The contentions provided on behalf of the grantee party state that it intends to conduct initial exploration over the surface area of the proposed licence, consisting of geological mapping and soil sampling. The contentions note that early stage work programs will not require ground-disturbing activities and access to exploration targets will be via the numerous existing station tracks. I do note that information provided by DMP shows tracks do currently exist on the proposed licence.
The contentions state that the grantee party is ‘fully aware’ of its requirements under the AHA, particularly in relation to sites, and would be agreeable to undertaking a heritage survey if required ‘to ensure that Aboriginal Sacred Sites are not disturbed’. The contentions also state the grantee party is willing to enter into a Regional Standard Heritage Agreement (‘RSHA’) but ‘[t]he agreement proposed by Corser & Corser Lawyers on behalf of the Mullewa Wadjari is unacceptable to the applicant as various payments to the Claimant group should not be required and are not required in RSHAs in this or other areas of the State.’
Considering the evidence
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia (2001) 108 FCR 442 (‘Smith’) at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Government party submits there is no evidence members of the native title party carry out community or social activities within the proposed tenement area and I agree that the native title party’s contentions are, for the most part, general in nature. The native title party states (at paragraph 11) that fishing and camping is carried out along the watercourses and breakaway areas, ‘particularly the areas close to Woodrarrung Range’. Tribunal mapping places Woodrarrung Range just outside the south western boundary of the proposed tenement, with some watercourses running into the proposed tenement. However, the native title party are not clear on how often its members visit the area for the purpose of carrying on these activities, or to what extent those activities occur on the proposed licence, as opposed to adjacent areas. Further, the Government party contend that hunting and exploration activities are inherently capable of coexistence, as has been found by the Tribunal on numerous occasions.
The native title party’s contentions state that the proposed tenement area is an important travel route used when travelling from New Forest or Billabalong to Yallalong. However there is no further evidence or information to support this statement. In addition, Tribunal mapping indicates the 7.75 per cent overlap between the native title party claim and the proposed licence is in the south easterly portion of the proposed licence, and there is no particular evidence relating the travel route with those pastoral leases. Tribunal mapping indicates that only a portion of the New Forest lease intersects with the proposed licence and the native title claim area, and there appears to be no intersection with Yallalong or Billabalong.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]).
The Tribunal has accepted the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver v Northern Territory (2002) 169 FLR 1 at [29]-[30], Member Sosso (whose findings I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party has indicated in its contentions that its initial activities will be limited to geological mapping and soil sampling, and will not require ground-disturbing activities. However, the grantee party does not rule out the possibility that more intensive methods may be used at a later point.
To the extent the Tribunal accepts the evidence that demonstrates members of the native title party carry out community and social activities in the proposed licence area, the Government party submits there is not likely to be direct interference because:
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and it is likely these activities have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area (at paragraph 39(a));
·The proposed licence is almost entirely covered by pastoral and historical leases, and the carrying on of the community and social activities of the native title party has been subject to, or co-existent with, all of these lawful activities for a significant period of time. Any intersection between the grant of the proposed licence and the current activities of the native title party would be the same as, or no more significant than, the previous and continuing use of the area (at paragraph 39(b));
·There are no Aboriginal communities within the area of the proposed licence (at paragraph 39(c));
·Hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting (at paragraph 39(d));
·It is difficult to envisage how mineral exploration activity could cause substantive interference to the ability of the native title party to access the area of the proposed licence. At most, the slight risk that the grantee party, exercising its full rights under the proposed licence, might physically be in the way of a member of the native title party in relation to the small area of land where they are operating on any given day is not substantial enough to constitute interference in the sense of s 237(a) (at paragraph 41(e)); and
·To the extent that the activities conducted by the native title party consist of ceremonies within the proposed licence area, the activities of exploration and ceremony will only potentially intersect in the limited period during which law business is held, although it must be assumed, in the absence of any cooperation between the native title party and the grantee party on the issue, that there may be a small possibility that the grantee party could inadvertently approach a ceremony while it is occurring (at paragraph 41(f)).
Although there is no specific evidence of the degree to which the native title party’s community or social activities have been interfered with by past exploration and continuing pastoral activity, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the previous grant of exploration licences, and particularly the pastoral leases, will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]). While I note there does not appear to have been mining leases previously over the area of the proposed licence, it can be inferred from the existence of previous exploration tenure that the holders of those licences exercised, to some extent, the rights set out in s 66 of the Mining Act in the area of the proposed licence, despite the absence of evidence about the specific activities carried out. While there is no particular evidence from any party in relation to how this affects the overlap area between the proposed licence and the native title claim area, I accept the Government party’s contention that these activities may have already affected, and may continue to affect, the extent to which the native title party’s community and social activities can be carried out in the proposed licence area. I also accept the Government party’s contentions regarding the effect of the pastoral leases, in particular in relation to New Forest which, as stated earlier, appears to be the only pastoral lease which intersects with the native title party claim and the proposed licence area.
The total area of the Mullewa Wadjari claim is approximately 35,569 square kilometres, and the grantee party’s proposed activities within the proposed licence area in the context of the size of the native title claim, and in the context of the 7.75 per cent overlap, make it less likely that exploration activity, particularly of the nature outlined by the grantee party, will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I am unable to conclude there is a real chance or risk there will be direct interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are no registered sites within the proposed licence, though it does indicate the presence of one ‘other heritage place’ within the proposed licence, namely Bugul Rock Hole, which is not within the native title claim / proposed licence overlap. This does not mean that there may not be other sites or areas of significance or of particular significance to the native title party in the area of the overlap or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
The native title party’s contentions directed at s 237(b) of the Act (outlined at [28]-[29] above), in summary, state that the Murchison River and its associated wells and watercourses are home to a dreamtime snake spirit called Bembara as well as the spirits of the native title party’s ancestors. The native title party state their belief system teaches they must protect these spirits and sites of significance or else they may experience misfortune, ill health or death. They contend the probable existence of undiscovered artefacts in the area in and around the proposed licence, particularly in the breakaway country in Yallalong, and damage to these items could affect connection evidence in support of their claim for a determination of native title.
The native title party contends (at paragraph 34) that, if the proposed licence is granted without negotiation with them, there is a real risk of interference with sites as a result of the grantee party’s activities, and the native title party would, therefore, be precluded from satisfying their cultural obligation to protect the land and waters within the proposed licence. The native title party maintains that the nature of some sites within the proposed licence are such that even non-ground disturbing work may cause interference to a level that would be distressing to the native title party and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b). However, those sites, or areas where such may exist, are not specifically identified.
The Government party response states that, although there is a registered site within the tenement (Bugul Rock Hole), the native title party does not address this site in its contentions and registration under the AHA alone is not sufficient evidence alone to demonstrate it is a site of particular significance. As noted earlier, no party has indicated this site is not within the native title party claim and proposed licence overlap.
The Government party rejects the native title party’s contention that mere presence in an area, or lack of consultation before entering an area can constitute direct interference for the purposes of s 237(b).
The Government party contends (at paragraph 55) that, in the event there are any areas or sites of particular significance in the proposed tenement area, interference is not likely because:
·The conditions and endorsements to be placed on the tenement by the Government will prevent damage to wells and watercourses;
·The area has been subject to previous exploration and possibly mining activity; and
·The AHA and associated processes are likely to prevent such interference.
Taking all of these factors into account, I find there is no real chance or risk of interference with areas or sites of particular significance as a result of the grant of the proposed licence, in the context of s 237(b).
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contends that the grant of the proposed licence and the exercise of the rights it will confer are likely to involve a major disturbance to the land and waters on and around the proposed licence. The native title party submits (at paragraph 23) that, in determining whether major disturbance is likely, the Tribunal should give particular consideration to:
·The proximity of the proposed licence to Mullewa Wadjari communities;
·The frequency of access and use of the proposed licence and surrounding areas as travelling and hunting groups by members of the native title party;
·The frequency with which members of the native title party carry out social and communities activities such as hunting, gathering, fishing and camping; and
·The existence of unregistered sites within and around the proposed licence which are highly significant to the native title party’s tradition, customs and beliefs.
The Government party contentions state (at paragraph 63) that the grant of the proposed tenement is not likely to involve major disturbance relevant to s 237(c) because:
·The exercise of rights conferred by the proposed licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment;
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration; and
·The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and is largely covered by pastoral leases, so the activities contemplated by the grantee party would be the same as, or no more significant than, previous and continuing use of the area.
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
·The 7.75 per cent overlap under consideration is composed entirely of pastoral leasehold (New Forest), where disturbance has already and will continue to be carried out;
·The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4);
·The grantee party is willing to enter into a RSHA in respect of the proposed licence;
·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
·There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that the grantee’s exploration activities would result in major disturbance to land or waters with the 7.75 per cent overlap area; and
·There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E09/1817 to State Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
10 April 2013
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