Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd
[2012] NNTTA 138
•17 December 2012
NATIONAL NATIVE TITLE TRIBUNAL
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 138 (17 December 2012)
Application No: WO2012/0262
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: 17 December 2012
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
Land Administration Act 1997 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48
Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora v Heron Resources Ltd (2005) 196 FLR 250
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd [2012] NNTTA 108
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133
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
Ward v Northern Territory (2002) 169 FLR 303
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representatives of the Ms Aimee Hackett, Corser & Corser
native title party:
Representatives of the Mr Cheyne Beetham, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Matthew Clohessy, Emerald Tenement Services
grantee party:
REASONS FOR DETERMINATION
On 30 November 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1913 (‘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 65 graticular blocks (approximately 198.38 square kilometres) situated 140 kilometres north of Mullewa in the Shire of Murchison. The proposed licence is wholly overlapped by the registered native title claim of the Mullewa Wadjari People (WC96/93 - registered from 19 August 1996). On 30 March 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 WO12/262).
The proposed licence is also overlapped in its entirety by the registered native title claim of the Wajarri Yamatji (WC04/10), on whose behalf an objection was lodged on 30 March 2012 (designated by the Tribunal as WO12/254). On 19 September 2012, a representative for the Wajarri Yamatji informed the Tribunal that they had reached an in-principle agreement with the grantee party and the objection was withdrawn on 10 December 2012.
On 27 April 2012, Deputy President John Sosso 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 6 August 2012; the native title party provided a statement of contentions on 10 September 2012 (‘NTP Contentions’), followed by the affidavit of Mr Leedham Papertalk sworn on 17 September 2012 and filed on 18 September 2012; the grantee party provided a statement of contentions on 3 October 2012 (‘GP Contentions’); and the Government party provided a statement of contentions on 19 October 2012 (‘GVP Contentions’). The native title party filed further contentions in response to GVP Contentions on 31 October 2012. It should be observed that GP Contentions were filed out of time, being due on 24 September 2012. However, as parties were given the opportunity to provide further submissions, it is my view that accepting the document would not prejudice the other parties. Nevertheless, I reiterate the point I have made in other matters that late submissions will not always be accepted.
On 12 October 2012, the native title party wrote to the Tribunal requesting a formal hearing in a related objection. On 18 October, I was appointed by President Graeme Neate to constitute the Tribunal for the purpose of conducting the inquiry and directed Tribunal staff to notify parties that I intended to convene a listing hearing to consider the native title party’s application. On the Government party’s suggestion and with the agreement of all parties, the Tribunal listed the present matter with the related matter so that they could be considered together, should the native title party wish to make a similar application in relation to the present objection. At the listing hearing held on 22 October, the native title party confirmed that it would also be seeking a formal hearing in the present matter, and I made directions requiring the native title party to provide submissions in support of its request, including details of the type of evidence to be led, any further affidavits it intended to file, and the proposed location of the hearing.
On 30 October 2012, the native title party wrote to the Tribunal to advise that it did not wish to pursue its application for a formal hearing. 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). The Tribunal provided a map to all parties on 16 November 2012 on which it intended to rely, and no party made any submissions or contentions in relation to that map.
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 (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, 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 51.2 per cent; and
·Pastoral lease 3114/947 (Billabalong) at 48.8 per cent.
The Quick Appraisal documentation also establishes that the area within the proposed licence has been subject to eight exploration licences that were active at various times between 1994 and 2009 and which overlapped the proposed licence area by between 6.1 and 50.6 per cent.[1] The area has also been subject to a temporary reserve granted in 1967 and cancelled in same year, which overlapped the area entirely, and 36 mineral claims granted between 1970 and 1971, all of which were surrendered by 1972, each overlapping by between 0.5 and 0.6 per cent. The Quick Appraisal shows that the services affected include several tracks and fence lines as well as yards, wells and bores, windmills, a ‘feature identification dot’ located on Mt Aubrey and a geodetic survey station (SSM-S 295).
[1] I note the NTP Contentions (at paragraph 6(d)) state that ‘no exploration licence has previously been granted in the area’, which is not in accord with the DMP evidence. I prefer the DMP evidence on this point.
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 ‘Mount Aubrey and Spring’ (Site ID 19687; mythological, camp, water source; lodged; open access; no restriction). Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed tenement.
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) and that there be no interference with Geodetic Survey Station SSM - S 295 (Condition 7). I note that the Government party contentions in reply refer to eight conditions, in the form of a further condition (at 18(i)) regarding interference with Geodetic Survey Station SSM – S 296. However, DMP documentation does not refer to such condition, and so I take this as being a typographical error.
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 and the affidavit of Mr Papertalk.
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 12-27. They refer (at paragraph 12) to the native title party’s regular four-day ‘hunting weekends’ that are conducted on a regular basis along the Murchison River and its connecting watercourses, creeks and springs river systems, including within the proposed licence. The contentions state (at paragraph 12) that the land and waters on and around the proposed licence are important to the native title party ‘because they are very fertile and close to the Mullewa Wadjari communities, therefore making the area an ideal hunting ground’ and, for these reasons, members of the native title party ‘regularly access and use’ the proposed licence during hunting weekends.
The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:
·‘The hunting weekends involve activities such as foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children’ (at paragraph 13)
·‘The hunting weekends and associated activities are carried out on a regular basis; almost every week of the year. Although known as hunting “weekends” amongst the Native Title party members, the hunting trips do not always occur on the same days of the week, nor do they always include Saturday and Sunday’ (at paragraph 14);
·‘Approximately 90% of Native Title Party members attend the weekly hunting weekends. This usually amounts to in excess of 100 people, travelling out in approximately 20 4WD vehicles’ (at paragraph 15);
·‘During the course of the hunting weekends the Native Title Party usually hunt native fauna such as kangaroos, emus, wild turkeys, goannas, blue tongue lizards and snakes. Occasionally, the members also hunt non-native species such as goats and rabbits. These meats are cooked underground in accordance with the Native Title Party’s tradition’ (at paragraph 19);
·‘Members of the Native Title Party also engage in fishing along the Murchison River and in the freshwater springs connecting to the River, such as Melia Creek and Coollarburloo Spring, which has very good fishing spots for wadbi, a freshwater species of fish’ (at paragraph 19);
·‘A large proportion of the meats and foods gained from the hunting weekend will be brought back to the Mullewa Wadjari communities where they will be shared amongst the members, including those who could not attend the hunting trip’ (at paragraph 20) and hunted meats ‘are also used to trade for commodities such as petrol and diesel which is used by members of the community’ (at paragraph 21);
·‘During winter, the Native Title Party members hunt for emu eggs along the Murchison River ... In addition to consuming the emu eggs, the Native Title Party uses discarded egg shells as a medium upon which to carve artistic impressions, which are then sold to visiting tourists’ (at paragraph 22)
·‘The River area is also where the Native Title Party members forage and collect bush medicines, witjuti grubs and sap from the bimba tree, which is also known as the lollipop sap. This sap is ... actively traded between the community members’ (at paragraph 23);
·‘During the four day hunting weekends, adults within the Native Title Party teach the children traditional knowledge’ (at paragraph 24).
The contentions note that, in addition to the hunting weekends, ‘individual members and families of the Native Title Party regularly travel along the Murchison River, often up Melia Creek and through the Tenement area for hunting and gathering, foraging, fishing and camping purposes’ (at paragraph 16) and the native title party ‘regularly camps within the Tenement area because the numerous breakaway countries within the Tenement area provide shelter and protection’ (at paragraph 26). The contentions also state (at paragraph 25) that the native title party uses the proposed licence ‘and its surrounds’ (including the Murchison River and Melia Creek) ‘to travel to sites where they conduct sacred lore meetings, as they have continued to do so for many decades. These sites are numerous in number and are very important to the tribal men, women and children of the Mullewa Wadjari People.’
The native title party contends (at paragraph 27) that exploration activities on the proposed licence are likely to interfere directly with: hunting, gathering, fishing, camping and the teaching of laws and customs to children carried out by members of the Native Title Party on and around the proposed licence; the travel route frequently used by the Native Title Party to attend sacred lore meetings, ceremonies and sites; and the balance of wildlife and food sources in and around the Tenement which will directly interfere with the Native Title Party’s hunting, foraging and fishing activities. The native title party also contends that, if land on and around the proposed licence is damaged, it will ‘have to travel further and further out in order to hunt and gather food and resources’ (at paragraph 27).
Section 237(b) – Sites of particular significance
The contentions addressing sites or areas of particular significance (at paragraph 28-36) in summary state:
·‘The Tenement lies directly over Mt Aubrey and Spring, a place which has great mythological significance for the Native Title Party. Mt Aubrey and Spring, as well as other permanent waterholes, springs and rockholes on and near the Tenement area along the Murchison River, are central to the Native Title Party’s dreamtime stories’ (at paragraph 28);
·‘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 29);
·‘[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 29);
·‘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 30);
·‘[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 large area of breakaway country within the Tenement, there is likely to be undiscovered artifacts left behind by the ancestors of the Native Title Party who have camped in the area.’ (at paragraph 32);
·‘If the Grantee Party is granted the legal right to carry out exploration activities in the Tenement area without negotiation and consultation with the Native Title Party, there is a real risk of interference with sites in the area as well as damage to items left behind by the ancestors of the Native Title Party’ (at paragraph 34);
·‘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 35);
·‘Despite the protections afforded by the AHA, suspected damage as a result of mining activities has already materialised at registered Tallering Peak site’ and ‘[t]he Native Title Party believe 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 36); and
·The probability of further damage to sites is ‘increased in the present case as not all significant sites within the Tenement area are marked out on the Register of Aboriginal Sites’ (at paragraph 36).
I note that Tribunal mapping shows an area called Tallering Peak some 65 kilometres south of the proposed licence. In addition, there is no evidence linking the suspected damage at Tallering Peak referred to in the NTP 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 37) 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, camping and the teaching of laws and customs to younger generations; and
·The existence of both registered and unregistered sites within and around the proposed licence which are highly significant to the native title party’s tradition, customs and beliefs.
Affidavit of Mr Papertalk
The affidavit of Mr Papertalk is made in the following terms:
I, Leedham Papertalk of Bundy Bunna Farm via Mullewa in the State of Western Australia, say on oath as follows:
1.I am a named applicant on the Mullewa Wadjari Native Title Determination Application (WC96/93) (WAD6119/98).
2.I am an initiated Mullewa Wadjari lawman and I am authorised to speak for country on behalf of the Mullewa Wadjari people.
3.I have been shown a map of Tenement E09/1913 (Tenement) by my lawyers, Corser & Corser. Attached hereto and marked “A” is a copy of the map I was shown.
4.I know the Tenement area very well as it falls within my country and I travel, hunt and camp there regularly. I grew up in the Mullewa Wadjari country and have spent all my life there.
5.I have been taught our customary laws and culture and the importance of country from a very early age. I was taught these things by my late father and I have the responsibility to look after and protect the heritage of the country.
Interference with community or social activities
6.The Tenement is located over many watercourses, creeks and springs connecting to the Murchison River. The Tenement is also very close to the Murchison River. My family and I and other members of the Mullewa Wadjari people go on hunting weekends around the Tenement area regularly because the area is very good hunting ground and close to the Mullewa Wadjari communities. We frequently camp on the Tenement because the breakaway country provides shelter for our camping ground.
7.There are usually over 100 community members going on the hunting weekends. A lot of them are children because we believe it is important to pass down our knowledge of the land and traditions to the younger generations, like it was passed down to me from my parents and grandparents.
8.I know there are pastoral leases on the Tenement. My people and I know these pastoral stations as Billabalong and New Forest. I know Peter Jeffries the owner of Billabalong Station, and John Jenson the owner of New Forest Station. I have developed a good relationship with these owners and I always call up the owners of the stations before we go hunting and request their permission to hunt and camp on the pastoral land. I know that the owners of Billabalong and New Forest employ indigenous people including Mullewa Wadjari people to work on the stations. The owners are good people and respect our culture and practices.
9.We hunt for kangaroos, emus, wild turkeys, goannas, blue tongue lizards, porcupines and snakes in and around the Tenement area. We also do a lot of fishing along the Murchison River and in the watercourses connecting to the River within the Tenement, because it has good fishing sports of wadbi (freshwater fish).
10.We collect bush vegetables and bush medicine in and around the Tenement area. For example, we collect ngarlku (wild onions) and kulyus (wild potatoes) that grow on the creek and river banks by tapping and digging the ground from where a particular vine grows. We also collect the sap from the bimba tree, known as lollipop sap. This sap has a very sweet and unique taste, which everyone loves. The sap is usually eaten directly, but can also be added to cooking like sugar. A lot of people use this for trading because we see it as worth more than gold.
11.We prepare and cook the hunted meats and bush foods in the traditional bunna way (underground) and at the same time teach the younger generations how to do this.
12.There is an abundance of quartz in the Tenement area due to the proximity of the Tenement area to the freshwater streams. We collect this quartz to make stone tools, such as spear tips, and tools to carve wood and skin and butcher carcasses.
13.There are mulga trees in and around the Tenement area. We cut branches from these trees to make spears, boomerangs and other tools used in ceremonies.
14.In winter, we hunt for wala (emu eggs) along the Murchison River and the watercourses within the Tenement area. Emu eggs are highly nutritious and most times are only reserved for elders to eat. We do not waste the emu egg shells. Some of our people are very artistic and can create nice drawings on the shells which are then traded between families or sold to tourists.
15.The hunting weekends are very important to the Mullewa Wadjari because it provides us with food, resources and a way of teaching our children the traditional laws, customs, dreamtime stories and connection to country. My family and I also travel to the Tenement area to hunt at every opportunity we get. I know other families do this as well. Not everyone in the community can afford to buy food and meats from supermarkets so we need to continue hunting and fathering food from the bush to share with our people.
16.Exploration activities including using heavy machinery, drilling and digging holes on the Tenement will damage the fertile lands and upset the balance of food sources in the area. It will interfere with our practice of hunting, gathering, fishing and camping in the area. It will also interfere with our teaching of laws and customs to the younger generation who come on the hunting weekends. If the Tenement area is damaged, we will have to travel further and further to hunt and gather food sources.
Interference with sites of particular significance
17.There are many places in my country, including within the Tenement area, which are very important and have great significance to the Mullewa Wadjari people.
18.Mt Aubrey and Spring is a very significant place to us because of its connection to our dreamtime stories and our ancestors who lived there. There is a snake spirit called Bembara that lives in Mt Aubrey and a number of other waterholes and springs in and around the Tenement area. The Bembara can make good things happen such as fill the river and creeks with water and make plants and animals grow. But if you disturb the spirit, bad things can happen to you such as incurable sickness and even death.
19.Mt Aubrey and Spring has always been our camping ground when we travel along the Murchison River because of all the breakaway country in the area and all the close waterholes and springs which provide us with good drinking water all year long.
20.The Murchison River and the creeks and watercourses in and around the Tenement area are all connected. We believe that after death, the spirits of the deceased travel along these waters before going back into the land.
21.Billabalong is particularly important to me because my late grandmother, Alice Darby, was born and raised the traditional way in Billabalong, before the white people came onto the land. I know from what I was taught by my late father and grandfather that my ancestors have travelled and camped in and around the Tenement area so there is likely to be undiscovered artefacts and gravesites in the region, particularly in caves in the breakaway country and along the river beds.
22.As traditional custodians of the land, we have the responsibility to look after and protect the country, particularly the sites that are significant to us and our customs and culture. I believe mining activities at another site (Tallering Peak) and the failure to protect that site have caused serious illness to, and the death of, a number of our people. This belief is shared by many other Mullewa Wadjari people.
23.My ancestors were initiated on this land and have walked all over this country. We need to carry out heritage surveys before any exploration activities takes place so that we know what the exploration company plans to do and so that we can advise them on how to protect and respect the area.
I accept Mr Papertalk has authority to speak for the land, representing members of the native title party.
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 Mullewa Carnarvon Road and existing station tracks.
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 RSHA in other areas of the State.’
Weighing up 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 accepts that the community and social activities referred to in paragraphs 9-14 of Mr Papertalk’s affidavit are carried out by the native title party partly in the proposed licence. However, the Government party submits that a large proportion of activity appears to be carried out along the Murchison River, which lies outside the proposed licence. The native title party’s contentions state (at paragraph 12) that the hunting weekends are regularly conducted ‘along the Murchison River, and its connecting watercourses, creeks and springs, including within the Tenement area.’ Tribunal mapping suggests that a number of these connecting watercourses, creeks and springs extend into the proposed licence.
Mr Papertalk states that members of the native title party hunt and collect bush vegetables and medicines in and around the proposed licence (paragraphs 9-10). Mr Papertalk deposes (at paragraph 9) that members of the native title party fish along the Murchison River as well as in watercourses connected to the river within the proposed licence, and hunt for emu eggs along the Murchison River and the watercourses within the proposed licence area (paragraph 14). Mr Papertalk states (at paragraph 12) that there is ‘an abundance of quartz in the tenement due to the proximity of the Tenement area to freshwater streams,’ which members of the native title party collect to make stone tools, and that members of the native title party use the branches of mulga trees in and around the proposed licences to make spears, boomerangs and ceremonial tools (paragraph 13). Mr Papertalk also states (at paragraph 6) that members of the Mullewa Wadjari communities ‘frequently camp on the Tenement because the breakaway country provides shelter for our camping ground.’ This evidence is uncontested. Accordingly, I do not accept the Government party’s submission that a ‘large proportion’ of the activities referred to in Mr Papertalk’s affidavit occur outside the proposed licence. Though there is some ambiguity in Mr Papertalk’s use of the expressions ‘around’ and ‘in and around’ the proposed licence, I accept that the activities to which he refers do occur within the proposed licence.
The NTP Contentions state (at paragraph 12) that it regularly conducts its hunting weekends along the Murchison River and its connecting watercourses, creeks and springs, including within the proposed licence. Mr Papertalk states (at paragraph 6) that he, his family and other members of the Mullewa Wadjari communities go on hunting weekends around the proposed licence area on a regular basis. In Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd [2012] NNTTA 108 (‘West Peak Iron’), Mr Papertalk gave evidence to the effect that the native title party’s hunting weekends take place ‘almost every week.’ However, that evidence related specifically to another exploration licence located 60 kilometres south of the proposed licence. The native title party also made submissions in Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd (2012) NNTTA 126 (‘State Resources’) stating that members of the native title party ‘often travel through the proposed tenement area during their hunting weekends, often following Melia Creek from the Murchison River.’ The nearest boundaries of the proposed licence in the current matter, and the exploration licence dealt with in State Resources, are approximately 2 kilometres apart, while Melia Creek is approximately 2.5 kilometres from the south-western boundary of the proposed licence. As I observed in State Resources (at [39]):
it would be difficult for the hunting weekends to take place in the area within which the proposed licence is situated, as well as in the area 60 kilometres south, to the extent suggested in the native title party’s contentions, unless a different set of people within the native title party were to participate in each outing, or unless that whole area (up to 60 kilometres and surrounds) were traversed during the hunting weekends.
It was said in the native title party’s contentions in each of these matters (although not specifically in the affidavit evidence) that around 90 per cent of the Mullewa Wadjari community members participate in the hunting weekends, so it appears it is the contention that generally the same group of people are participating. As such, even if one were to exclude the area dealt with in West Peak Iron, the area covered by the exploration licence considered in State Resources, and the proposed licence, is near to a total of 280 square kilometres. That is not to suggest that members of the native title party do not visit all of these areas to carry on activities associated with the hunting weekends, such as hunting, gathering, fishing, camping and teaching laws and customs to children. However, it does indicate that the activities are carried out over a reasonably large area and are not likely to intersect with the activities proposed by the grantee party to a significant degree, according to the available evidence.
It is clear that certain activities referred to by Mr Papertalk, such as the collection of quartz for making stone tools, have a specific connection with the area of the proposed licence (though I note that similar evidence was given in relation to the tenement dealt with in State Resources). However, it is not clear how often members of the native title party 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 or the area surrounding the Murchison River in general. The native title party’s contentions also refer (at paragraph 25) to the existence of sites in the proposed licence area and surrounds, to which members of the claim group travel for the purpose of conducting sacred lore meetings, but there is no indication in either the NTP Contentions or the evidence given by Mr Papertalk of the location of these sites, or how frequently they are visited. Unlike State Resources, Mr Papertalk does not mention the existence of ceremonial sites in the context of the proposed licence. 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]).
What Mr Papertalk does refer to specifically is the use of Mt Aubrey and Spring as a camping group by members of the claim group. Mr Papertalk states (at paragraph 19) that Mt Aubrey and Spring (which, according to Tribunal mapping, is located within the proposed licence) has ‘always been our camping ground’ when travelling along the Murchison River ‘because of all the breakaway country in the area and all the close waterholes and springs which provide us with good drinking water all year long.’ In this regard, it is more likely, given the use of Mt Aubrey and Spring as a camping site, that members of the native title party engage in other community and social activities, especially those associated with the hunting expeditions, on the proposed licence and the immediate surrounds. Although Mr Papertalk’s evidence may be interpreted as suggesting that the breakaway country extends throughout the proposed licence and perhaps to areas outside the proposed licence, in the context of Mr Papertalk’s evidence about the significance of Mt Aubrey and Spring and its proximity to watercourses, I accept that members of the claim group specifically visit the site for the purpose of camping when travelling along the Murchison River.
The Tribunal has accepted that 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. Mr Papertalk states that ‘exploration activities using heavy machinery, drilling and digging holes ... will damage the fertile lands and upset the balance of food sources in the area’ (at paragraph 17). The native title party has not provided any evidence that activities of that kind will have that effect. In its further contentions, the native title party submits (at paragraph 11) that the presence of vehicles, machinery and equipment is likely to deter wild animals from the area. However, as I noted in State Resources, the native title party’s contentions state that the hunting weekends usually involve more than 100 people travelling in approximately 20 four-wheel drive vehicles, and it is therefore unlikely that the grantee party’s activities will cause a higher degree of interference to wildlife than already occurs as a result of the native title party’s activities in the area.
To the extent the Tribunal accepts that the evidence 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 ‘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 41(a));
·The proposed licence ‘is entirely covered by pastoral lease’, 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 tenement 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 41(b)-(c));
·There are no Aboriginal communities within the area of the proposed licence (at paragraph 41(d));
·‘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 41(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 tenement ... At most, the slight risk that the Grantee Party, exercising its full rights under the proposed tenement, 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 section 237(a) sense’ (at paragraph 41(f)-(g)); and
·‘To the extent that the activities conducted by the Native Title Party consist of law 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. But 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 near a ceremony whilst it is occurring’ (at paragraph 41(h)).
In its further contentions, the native title party makes similar contentions to those it advanced in State Resources, though for convenience they may be repeated here. The native title party submits (at paragraph 4) that the activities contemplated by the grantee party are different and more significant than the previous and continuing use of the proposed licence area. Specifically, the native title party notes that the activities authorised by s 66 of the Mining Act 1978 (WA) (‘Mining Act’) include, among other things: digging pits, trenches and holes in the land; sinking bores and tunnels; excavating and removing land, earth soil, rock and stone from the land; and taking water from the land. The native title party contends that the activities are likely to result in the removal of and disturbance to the traditional bush tucker and medicines gathered by the native title party and are likely to cause animals to vacate the area. The native title party submits that, without evidence of the activities that were conducted in the area under previous exploration licences, it cannot be said that the interference caused by the grantee party’s activities would be the same as or no more significant than the previous use of the proposed licence area (at paragraph 9).
The native title party further contends (at paragraphs 5-8) that pastoral activity does not disturb the land or affect the native title party’s traditional use of the area and that the grant of a pastoral lease under the Land Administration Act 1997 (WA) (‘LAA’) protects indigenous pasture and recognises traditional rights to the land. On the other hand, the native title party contends that the grant of the proposed licence will restrict the native title party’s access to the area for the purpose of engaging in community and social activities.
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 grant of the 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]). As I acknowledged in State Resources, it can be inferred from the existence of previous mineral 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. In this respect, I accept, as I did in State Resources, the Government party’s contention that these activities 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. Contrary to the native title party’s submission, the LAA only recognises and permits access to pastoral leasehold for traditional uses to the extent that the land is unenclosed and unimproved (see s 104). The fact that members of the native title party state they have to request permission to enter onto pastoral land to hunt and camp underscores the point that the native title party’s community and social activities in the area are already subject to, and coexistent with, the lawful activities of the pastoral lease holders.
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 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. I note in this respect the native title party’s evidence in State Resources and West Peak Iron that hunting weekends and other activities also take place elsewhere along the Murchison River and along the Greenough River and Bangemall Creek to the south (State Resources at [26], [28]-[29], [31], [37], [39]; West Peak at [26]-[27], [30], [40], [42]).
In the circumstances, taking into account the evidence available, I am unable to conclude that 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 Mt Aubrey and Spring. 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 proposed licence 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.
Mr Papertalk states (at paragraph 18) that Mt Aubrey and Spring is a ‘very significant place to us because of its connection to our dreamtime stories and our ancestors who lived there.’ Mr Papertalk also refers to a snake spirit called Bembara that lives in Mt Aubrey and Spring and a number of other waterholes and springs in and around the proposed licence (paragraph 18). According to Mr Papertalk, ‘bad things’ can happen to people who disturb the spirit, such as ‘incurable sickness and even death.’ The native title party’s contentions state (at paragraph 28) that Mt Aubrey and Spring, as well as other permanent waterholes, springs and rockholes on and near the proposed licence along the Murchison River, are central to the native title party’s dreamtime stories. In the same vein, Mr Papertalk deposes (at paragraph 20) that the Murchison River and the creek and watercourses in and around the proposed licence are all connected and that the native title party believes the spirits of the deceased travel along the waters before going back to the land. Mr Papertalk also refers (at paragraph 24) to the probable existence of undiscovered artefacts and gravesites in the area in and around the proposed licence, particularly in caves in the breakaway country and along the river beds.
The native title party submits at paragraph 35 of its contentions that, due to the presence of Mt Aubrey and Spring and numerous other registered and unregistered sites in close proximity to the proposed licence, the area is ‘highly site rich’. Specifically, the native title refers (at paragraph 9) to the following ‘registered sites’, all of which are located outside the proposed licence area:
·the Murchison River (presumably Murchison River Bridge, Site ID 12073, insufficient information, open access, no restriction, artefacts/scatter, camp);
·Billabalong Homestead (Site ID 12076, registered, open access, no restriction, archaeological deposit);
·Coolarburloo Brook (presumably Gularbarlu Pool, Site ID 19683, lodged, closed, no restriction, mythological, historical, camp, water source); and
·Melia Creek (presumably Melia Creek 1, Site ID 12074, registered, open access, no restriction, artefacts/scatter and Melia Creek 2, Site ID 12075, registered, open access, no restriction, artefacts/scatter).
The native title party contends (at paragraph 34) that, if the proposed licence is granted without negotiation with the native title party, 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), though it does not specifically identify those sites.
The Government party submits (at paragraph 51) that it is difficult to accept that Mt Aubrey and Spring is a site of particular significance to the native title party simply on the basis that Bembara resides there when, according to Mr Papertalk, the snake spirit also lives in other waterholes and springs in and around the proposed licence. In respect of the other sites identified in the native title party’s contentions, such as the Murchison River, the Government party notes (at paragraph 52) that they are located some distance from the proposed licence area. In any event, the Government party does not accept that the entire Murchison River is necessarily a site of particular significance. I note that, according to Tribunal mapping, the river is approximately four kilometres from the nearest border of the proposed licence, and the other sites referred to by the native title party are between approximately 5-15 kilometres from the southern boundary of the proposed licence.
Furthermore, the Government party contends (at paragraph 54) that the references made by Mr Papertalk to unidentified ceremonial sites and undiscovered artefacts and gravesites do not in any meaningful way identify sites of particular significance. Rather, the Government party contends (at paragraph 53) that an ‘area or site of particular significance’ must mean an area which stands out in some way from the general background of other sites and the country as a whole. Furthermore, the Government party does not accept the contention that mere presence in an area may cause direct interference with that area, except insofar as it is established by the evidence (paragraph 55).
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 at [39]; Cheinmora v Heron Resources Ltd (2005) 196 FLR 250 at [43]). I accept the native title party’s evidence that there is a likelihood of sites significant to the native title party existing within the proposed tenement area. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the location of these sites, the particular significance of these sites, or the likelihood there will be interference. Mr Papertalk does not identify the basis on which the native title party regards Mt Aubrey and Spring as a site of particular significance other than its association with Bembara, which it appears to share with other waterholes and creeks in the proposed licence and other areas along the Murchison River. I note as well the native title party’s evidence in West Peak Iron regarding the significance of waterholes along Bangemall Creek (at [31]).
Nor has the native title party demonstrated that the proposed licence is located in an area that is ‘highly site rich’. Apart from general comments made by Mr Papertalk regarding the Murchison River, the native title party has not adduced any evidence in relation to significance of the sites referred to in paragraph 9 of its contentions or their connection to the relevant area. As the Tribunal has held in previous decisions, it is not sufficient for the native title party to simply assert that an area is ‘site rich’ any more than it is to assert that a site or area is ‘of particular significance’: Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [18] (‘Mark Lockyer’). Although the presence of a number of registered sites in an area may put the Tribunal on notice about the potential significance of the area, it is only one indication and is not determinative of whether the area can be described as ‘site rich’: Ward v Northern Territory (2002) 169 FLR 303 at 326-327; Mark Lockyer at [18]. Rather, the Tribunal’s use of the term ‘site rich’ has always reflected an evidentiary conclusion about the existence of sites or areas of significance or of particular significance, and the likelihood of interference: Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 at [43]; Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 at [55]. In this matter, the native title party has not been able to demonstrate the existence of any sites or areas of particular significance in the area of the proposed licence, nor has it provided evidence that would lead me to conclude the area possesses some special characteristic which would render it particularly vulnerable to interference.
In the event that there are sites of particular significance on the proposed licence, I am satisfied that the regulatory regime will ensure that there is no real risk of interference. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with sites of particular significance found to exist. In the present matter, the evidence does not establish that the proposed licence has any characteristics that would render the protective regime inadequate to prevent interference with any sites of particular significance that may be located in the area.
The GP Contentions state that the grantee party is fully aware of the requirements of tenement holders with respect to the AHA and in particular its obligations in relation to Aboriginal sites. The grantee party states that it is willing to enter into a RSHA and undertake a heritage survey if required. It does not state whether it will enter into one with both overlapping claims, or if it only intends to enter into one with the Wajarri Yamatji people. Nevertheless, it appears the grantee party has entered into an RSHA or similar agreement with the Wajarri Yamatji, and may enter into an RSHA with the native title party if requested. The Government party contentions in reply state (at paragraph 56(b)) that ‘the Grantee Party has indicated a willingness to enter into a RSHA with the Native Title Party (as it has done with the Wajarri Yamatji people),’ which suggests that the grantee party will also enter into an RSHA with the native title party.
I note as well the Government party’s contention (at paragraph 56(b)) that, to the extent that Mt Aubrey and Spring is a site of particular significance, the grantee party is on notice about its existence and is aware of its obligations in respect of that site. The grantee party will also be aware, as a result of the evidence given in this matter, of the probable existence of other sites within the proposed licence that are also protected under the AHA. There is no evidence to suggest that the grantee party will not comply with the relevant laws and regulations or the conditions to be imposed on the proposed licence. In the circumstances, I am satisfied that the AHA and its associated processes, as well as the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of particular significance.
Taking all of these factors into account, I find that 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 37) 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 community activities such as hunting, gathering, fishing, camping and the teaching of laws and customs to younger generations; and
·The existence of both registered and unregistered sites within and around the proposed licence which are highly significant to the native title party’s tradition, customs and beliefs.
The native title party’s further statement of contentions provides particulars of the likely disturbance (at paragraph 4), where it states that the activities authorised by the proposed licence pursuant to s 66 of the Mining Act include, among other things: digging pits, trenches and holes in the land; sinking bores and tunnels; excavating and removing land, earth, soil, rock and stone from the land; and taking water from the land. While the native title party acknowledges that the grantee party has indicated that its initial exploration programme will not involve ground disturbing activities, it argues that there is no guarantee the grantee party will not carry out ground disturbing activities in the later stages of the programme and there is, therefore, a possibility of major disturbance to land if the grantee party commences drilling or excavation.
The Government party contentions state (at paragraph 64) that the grant of the proposed tenement is not likely to involve major disturbance relevant to s 237(c) because:
·‘The Grantee Party has indicated that initial exploration will consist of geological mapping and soil sampling and that early stage works will not require ground disturbing activities’;
·‘The exercise of rights conferred by the exploration 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’;
·‘The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity’, and is ‘entirely 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’; and
·‘It does not appear that the area of the proposed tenement has any particular characteristics that would be likely to result in “major disturbance” to land and waters’.
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 proposed licence area is composed entirely of pastoral leasehold, 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 has entered into a RSHA or similar agreement with the Wajarri Yamatji in respect of the proposed licence and may also enter into an RSHA with the native title party;
·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 the community people to think that the grantee party’s exploration activities would result in major disturbance to land or waters;
·The native title party’s contention that the area is ‘highly site rich’ is not demonstrated by the evidence; 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 will occur in relation to this proposed licence.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E09/1913 to State Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
17 December 2012
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