Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd

[2012] NNTTA 126

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd, [2012] NNTTA 126 (27 November 2012)

Application No:               WO12/168

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:  27 November, 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

National Native Title (Tribunal) Regulations 1993 (Cth),           reg 8(b)(i)(a)

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:Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15

Cheinmora v Heron Resources Ltd (2005) 196 FLR 250

Dann v Western Australia (1997) 74 FCR 931

Fisher v Queensland (2005) 192 FLR 9

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

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

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

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

1. On 19 October 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1886 (‘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).

2. The proposed licence comprises 27 graticular blocks (approximately 82.32 square kilometres) situated 126 kilometres north of Mullewa in the Shire of Murchison.  The proposed licence is wholly overlapped by the native title claim of the Mullewa Wadjari People (WC96/93 - registered from 19 August 1996).  On 17 February 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 WO12/168).  The proposed licence is also overlapped in its entirety by the Wajarri Yamatji native title claim (WC04/10), on behalf of whom an objection was lodged on 6 February 2012 but was subsequently withdrawn.

3. Paragraph 9 of the Form 4 states that, pursuant to reg 8(b)(i)(a) of the National Native Title (Tribunal) Regulations 1993 (Cth), the prescribed application fee is not payable because the objector is the holder of an Australian Government Health Care Card.  A list of confirmed concession entitlements held by the Tribunal was checked on lodgement of the Form 4 and found to include a concession card from one of the objectors, but this had expired on 25 December 2011.  The Tribunal wrote to the native title party representative on 16 March 2012 and asked for an updated copy of the card.  On 30 March 2012, the native title party provided a copy of a current pensioner concession card held by one of the other objectors.  Although the concession card only commenced on 18 February 2012 (that is, after the objection was lodged), the Tribunal accepted the Form 4 on the basis that it was valid at the closing date for the lodgement of objections (20 February 2012).  The Tribunal has found in previous matters that it, if material supporting the acceptance of an objection is lodged after the closing date but before an acceptance decision is made, the Tribunal will take that material into account: Fisher v Queensland (2005) 192 FLR 9 at [29]; Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd [2012] NNTTA 108 at [6] (‘West Peak Iron’).      

4. On 3 May 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.

5. 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 20 August 2012 (‘NTP Contentions’), followed by the affidavit of Mr Leedham Papertalk sworn on 7 September 2012 and filed on 11 September 2012; the Government party provided a statement of contentions on 20 September 2012 (‘GVP Contentions’); and the grantee party provided a statement of contentions on 11 October 2012 (‘GP Contentions’).

6. Mr Papertalk’s affidavit and the grantee party’s contentions were both provided out of time (the native title party’s submissions were due on 20 August and the grantee party’s contentions were due on 27 August).  As no reasons were given for the late submissions, the Tribunal wrote to parties on 15 October 2012 asking for the native title party and the grantee party to provide an explanation as to why they were not able to comply with directions, as well as reasons why the documents should be accepted.  On 18 October 2012, the native title party wrote to the Tribunal requesting that Mr Papertalk’s affidavit be accepted on the basis that, among other reasons, the native title party’s representative had limited opportunity to communicate or have contact with Mr Papertalk throughout July 2012 due to a death in his family.  On the same date, the grantee party wrote to the Tribunal stating that an email sent by the Tribunal on 8 October had incorrectly stated that the grantee party had already complied with directions, though it should be noted that the grantee party was already out of time when the email was sent.  On this occasion, and given the circumstances, I accept both documents.  However, I note that it is preferable for parties to formulate a specific request for any extension of time prior to the submission of contentions or evidence, as late submissions may not always be accepted.   

7. At a listing hearing held on 11 October 2012, parties agreed that the matter could be determined ‘on the papers’ in accordance with s 151(2) of the Act. However, the native title party wrote to the Tribunal on 12 October 2012 requesting a formal hearing into the objection. On 18 October 2012, I was appointed by President Graeme Neate to constitute the Tribunal for the purpose of conducting the inquiry and, following a further listing hearing, 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 advising that it did not wish to pursue its application for a formal hearing.

8. On 15 November 2012, the Tribunal wrote to parties confirming my acceptance of the late submissions made on behalf of the native title and grantee parties and asking parties to notify the Tribunal by noon on 20 November 2012 if they had any final submissions to make.  No response was received from any of the parties.  

9. Having considered the material before me, I am satisfied that the objection can be adequately determined ‘on the papers’ (that is, without a formal hearing).         

Legal principles

1. 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.’

2. In Walley v Western Australia (2002) 169 FLR 437, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. 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].

4. 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 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]).

5. 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).

6. 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

1. 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.

2. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

   ·Pastoral leases 3114/726 (New Forest[1]), 3114/867 (Yallalong), and 3114/947 (Billabalong) at 88.6, 6.9 and 0.2 per cent respectively;

   ·Historical Lease 394/530 at 6.8 per cent; and

   ·Vacant crown land, consisting of a former pastoral lease 3114/440 purchased and managed by the Department of Environment and Conservation and designated CPL 47, at 4.4 per cent.

   [1] Note that ‘New Forest’ is also referred to as ‘New Forrest’ on occasion in the evidence

3. The Quick Appraisal documentation also establishes that the area within the proposed licence has been subject to three exploration licences that were active at various times between 1996 and 2005 and which overlapped the proposed licence area by between 0.9 and 38.6 per cent.  The area has also been subject to a temporary reserve granted in 1966 and cancelled in 1967, which overlapped the area by 96.6 per cent, and two mineral claims granted in 1972 and surrendered in 1972, which overlapped at 0.3 and 1.0 per cent.  The Quick Appraisal shows that the services affected include several minor roads as well as watercourses, tracks, fence lines, wells and bores, windmills, an aircraft landing ground and runway, and a geodetic survey station (SSM-S 296).

4. 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 DIA recorded sites within the proposed licence. Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed tenement.

5. 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 S 296 and the aerial landing ground (Conditions 7-8). In respect of the area designed as CPL 47, further conditions will be imposed requiring the licensee to prepare a detailed programme for each phase of proposed exploration for approval by the Director, Environment, DMP prior to any ground-disturbing activity (Condition 9), to rehabilitate all areas cleared, explored or otherwise disturbed during the term of the licence (Condition 10), and to notify the Environmental Officer, DMP prior to the cessation of exploration/prospecting activity and arrange an inspection as required (Condition 11).

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

1. The evidence provided by the native title party consists of a statement of contentions and the affidavit of Mr Papertalk.

Affidavit of Mr Papertalk

1. 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 E09/1886 (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. The Tenement is located very close to where I live. 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 very close to the Murchison River. Due to the close proximity to the River, my family and I, and other member of the Mullewa Wadjari people travel, hunt and camp around the Tenement area regularly.

   7.We often bring our children with us when we go travelling and hunting, because 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 a number of Pastoral Stations within the Tenement Area. My people and I know these Pastoral Stations as ‘Billabong’, ‘New Forest’ and ‘Yallalong’. I know Peter Jeffries the owner of Billabong Station, and John Jenson the owner of New Forrest 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 Billabong and New Forrest employ indigenous people including Mullewa Wadjari people to work on the station.

   9.When we go hunting, we hunt for kangaroos, emus, wild turkeys, goannas, blue tongue lizards, and snakes in and around the Tenement area.

   10.We also do a lot of fishing along the Murchison River and in the fresh water springs connecting to the River such as Media Creek, because it has good fishing spots for wadbi (freshwater fish).

   11.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, which has a very sweet and unique taste. 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.

   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.We usually camp overnight along the river hunting route, including within the Tenement area. 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.

   15.During the winter season, we hunt for wala (emu eggs) along the Murchison River, Coollarburloo Pool and watercourses. Emu eggs are highly nutritious and most times are only reserved for elders to eat. Some of our people create nice drawings on the shells which are then traded between families or sold to tourists, so the egg shells are not wasted.

   16.The hunting weekends are very important to me and my people because it provides us with food, resources and a way of teaching our children the traditional laws, customs, dreamtime stories and connection to country. I know that many of my people cannot afford to buy food and meats from supermarkets so they need to continue hunting and gathering food from the bush to share with our people.

   17.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

   18.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.

   19.There are a number of waterholes along Murchison River and in the Tenement area which are very important to us. There is a snake spirit called Bimbara that lives in these waterholes. The Bimbara 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

   20.These waterholes also provide us with good drinking water in all seasons when we travel, camp and attend ceremonies along Murchison River.

   21.There are also a number of ceremonial sites within the Tenement area due to its close proximity to the Murchison Rive and Coollarburloo Pool, which my people and I continue to use today for cultural ceremonies.

   22.The Murchison River and the connecting water bodies, including Melia Creek and very important because we believe that after death, the spirits of the deceased travel along these waters before going back into the land.

   23.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.

   24.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.

   25.The Mullewa Wadjari people believe that failure to protect traditional sites such as these, by allowing mining to occur on the land, will cause serious illness, and even death amongst our people.

   26.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 take 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.

Contentions

1. The native title party’s contentions are directed to each limb of s 237.

Section 237(a) – Community or Social Activities

1. The native title party’s contentions addressing community and social activities are contained in paragraphs 4-17 and 29-30. They refer (at paragraph 4) to the native title party’s regular four-day ‘hunting weekends’ that often occur along the Murchison River and its connecting river systems and creeks such as Coolarburloo Spring[2] and Melia Creek.  The native title party states (at paragraphs 8, 20 and 29) that it has a ‘very strong cultural connection’ to the Murchison River and surrounding bodies of water and that the area (which includes the proposed licence) is favoured by the members of the claim group as an easily accessible and culturally significant hunting ground, due to its fertile grounds and close proximity to Geraldton and Mullewa, where contentions state significant Aboriginal communities exist. 

   [2] I note this Spring is various referred to on maps and in submissions as Coolarburloo Spring or Coollarburloo Spring – I use the terminology as referenced in the relevant submission or map under discussion.  It should also be noted that Coolarburloo Spring and Coolarburloo Pool are two different areas.

2. The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:

   ·‘four day hunting “weekends” occur almost every week of the year.  Although these hunting expeditions are known as hunting “weekends” amongst Native Title party members, they do not always occur on the same days of the week, nor do they always include Saturday and Sunday’ (at paragraph 4);

   ·‘The hunting weekends often occur along the Murchison River, and its connecting river systems and creeks.  Because of the proposed tenements close vicinity to Murchison River and Coolarburloo Spring, the Native Title Party members often travel through the proposed tenement area during their hunting weekends, often following Melia Creek from the Murchison River’ (at paragraph 5);

   ·‘Approximately 90% of Native Title Party members attend the weekly hunting weekends.  This usually amounts to in excess of 100 people, traveling in approximately 20 4WD vehicles’ (at paragraph 7);

   ·‘During the course of the four day hunting weekends, the Native Title Party usually hunts 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 9);

   ·‘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 Coolarburloo Spring, which has very good fishing spots for wadbi, a freshwater species of fish’ (at paragraph 10);

   ·Hunted meats and fish are ‘conveyed to the Native Title Party community, where it is shared’ (at paragraph 11) and ‘are also traded for commodities such as petrol and diesel which is used by members of the Native Title Party’ (at paragraph 12);

   ·‘During winter, the Native Title Party community hunt for emu eggs along the Murchison River ... In addition to consuming the contents of 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 13)

   ·‘the native title party also forages for and collects bush medicines, witjuti grubs and sap from the bimba tree, which is also known as the lollipop sap. This sap is ... traded between the community members’ (at paragraph 14);

   ·‘Due to the proximity and abundance of fresh water streams, there is a large density of quartz within the proposed tenement area.  The Native Title Party gather the quartz to make indigenous tools referred to as ‘stone tools’ which are used for spear tips, carving wood, and to skin and butcher carcasses’ (at paragraph 15); and

   ·‘During the four day hunting weekends, adults within the Native Title Party teach the children traditional knowledge’ (at paragraph 16).

3. 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 and within its surrounds at every opportunity they get to carry on community and social activities’ (at paragraph 4).  The contentions also state (at paragraph 17) 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 Native Title Party.’

4. The native title party contends (at paragraph 30) that, due to ‘the substantial size of the proposed licence in relation to the hunting weekend area, the wide scope of activities carried out in the hunting weekend area and its close proximity to the Murchison River and Coolarburloo Spring,’ there will likely be ‘a direct interaction between the activities of the grantee party and the community and social activities of the Native Title Party.’  The native title party further contends that some of the activities carried out in the area rely on unique qualities within the proposed licence and its surrounds and it is therefore necessary that they be done ‘in situ’ on or near the proposed licence (at paragraph 30). 

Section 237(b) – Sites of particular significance

1. The contentions addressing sites or areas of particular significance (at paragraph 20-28) in summary state:

   ·‘The Native Title Party has a very strong cultural connection to the Murchison River, and its surrounding bodies of water’ (at paragraph 20);

   ·‘Of particular importance are a number of small, natural, permanent spring waterholes and creeks along the Murchison River such as the Coolarburloo Spring.  These springs are central to the Native Title Party’s teaching of laws and customs to younger generations ... One of these waterholes lies near Gnamma Well, within the area of land over which the proposed tenement is expressed to operate’ (at paragraph 20);

   ·‘The Native Title Party believes that after death, the spirits of its deceased go back to the River and permanent spring waterholes and later back to the land.  Accordingly, it is vital that the Native Title Party continues to have unfettered access to the River and its surround so that these sacred sites are not damaged, and can be accessed by the traditional owners’ (at paragraph 21);

   ·‘[T]he Murchison River and the permanent spring waterholes are part of the Native Title Party’s dreamtime stories’ which ‘depict the River as a man-like spirit snake named Bembara’ (at paragraph 22);

   ·‘[I]f the River or waterholes 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 also death’ (at paragraph 23);

   ·‘[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 23);

   ·‘[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, or where they were buried.  The deceased father of the native title applicant, Leedham Papertalk, lived in and around the proposed tenement area, and use to travel through the proposed tenement area to teach law and custom and to deliver food to friends and relatives living in the area’ (at paragraph 24);

   ·‘If the Grantee Party is granted the legal right to carry out exploration activities in the proposed licence area without negotiation with the Native Title Party, a real risk of interference with sites (even if inadvertent) exists when fully exercising their rights, and as such, the Native Title Party would be precluded from satisfying their cultural obligation of protection of their land and waters within the proposed tenement area’ (at paragraph 26);

   ·‘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 26);

   ·‘Despite the protections afforded by the [AHA], suspected damage to registered significant sites resulting from mining activities has already materialised at nearby Tallering Peak’ and ‘[t]he Native Title Party feels that they have failed to fulfil their duty of protecting the sacred sites and believe that several deaths have resulted from this failure’ (at paragraph 27);

   ·The probability of further damage to sites is ‘increased in the present case as the location of the significant sites within the proposed tenement area are not marked on the public register (DIA database)’ (at paragraph 27); and

   ·‘Even though the Grantee Party is now on notice that significant sites exist within the land over which the proposed tenement is expressed to operate, the exact location of these sites is unknown to them.  Accordingly, the regulatory regime of the [AHA] will fail to protect these sites unless there is close liaison between the Native Title Party and the Grantee Party, through negotiation and agreement’ (at paragraph 29).

Section 237(c) – Major disturbance to land or waters

1. In addressing the issue of major disturbance of land or waters, the native title party’s contentions state (at paragraph 31) that ‘the disturbance in this case has such consequences for people in the local area such as the Native Title Party such as to be properly called a major disturbance notwithstanding that is of no consequence to non-Aboriginal people who live far away.’ 

Evidence provided by the grantee party

1. 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 Yallalong New Forest Road and existing station tracks.      

2. 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 the Regional Standard Heritage Agreement and has completed an agreement with the Wajarri Yamatji’. The grantee party submits that its existing agreement with the Wajarri Yamatji will ensure that heritage issues are dealt with as required, and that ‘the agreement proposed by Corser & Corser Lawyers on behalf of the Mullewa Wadjari Community is unacceptable to the applicant as various payments to the Claimant group should not be required and are not required in Regional Standard Heritage Agreements’.

Weighing up the evidence

Community or social activities (s 237(a))

1. 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]).

2. The Government party accepts that the community and social activities referred to in paragraphs 9, 11 and 12 of Mr Papertalk’s affidavit are carried on by the native title party partly in the proposed licence.  However, the Government party submits that the bulk 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 5) that the hunting weekends ‘often occur along the Murchison River, and its connecting river systems and creeks.’  Mr Papertalk also refers in his affidavit (at paragraph 14) to members of the native title party camping along the ‘river hunting route, including within the Tenement area.’  Tribunal mapping suggests that some of the connecting river systems and creeks along the Murchison River, including Melia Creek, extend well into the proposed licence.  

3. Mr Papertalk specifically states (at paragraph 6) that he, his family and other members of the native title party travel, hunt and camp around the proposed licence regularly due to its close proximity to the river and collect bush vegetables and bush medicine ‘in and around’ the proposed licence (paragraph 11).  Mr Papertalk states (at paragraph 10) that members of the native title party fish in fresh water springs connected to the Murchison River, such as Melia Creek, and hunt for emu eggs along the Murchison River, Coollaburloo Pool and watercourses in the winter season (paragraph 15).  Mr Papertalk also 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 licence to make spears, boomerangs and ceremonial tools (paragraph 13).  This evidence is uncontested.  Accordingly, I do not accept the Government party’s submission that the ‘bulk’ 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.

4. The native title party contentions state (at paragraph 4) that ‘hunting weekends’ occur almost every week of the year, though Mr Papertalk makes no reference to the frequency of the hunting weekends.  Mr Papertalk gave evidence in West Peak Iron 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.  In light of the evidence given by Mr Papertalk in that matter, 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) was traversed during the hunting weekends.  I do note that in both matters, it is said in the native title party contentions (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.  That is not to suggest that members of the native title party do not visit both areas to carry on activities associated with the hunting weekends, such as hunting, gathering, fishing, camping and teaching laws and customs to children, it is just that the evidence relating to the hunting weekends provides little guidance as to the extent to which members of the native title party access the proposed licence area to carry on those activities.

5. 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.  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.  Similarly, though Mr Papertalk states (at paragraph 21) that there are a number of ceremonial sites within the proposed licence that members of the claim group continue to use for cultural ceremonies, there is no indication of the location of the sites or how frequently they are visited.  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]).

6. 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, I note in this respect the native title party’s contention that hunting weekends usually involve more than 100 people travelling in approximately 20 four-wheel drive vehicles.  It would, therefore, seem that the grantee party’s activities are unlikely to cause a higher degree of interference to wildlife than already occurs as a result of the native title party’s activities in the area. 

1. 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 that 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 45(a));

   ·The proposed licence is almost entirely covered by pastoral lease, and the native title party’s carrying on of community and social activities has been subject to, or co-existed 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 45(b));

   ·There are no Aboriginal communities within the area of the proposed licence (at paragraph 45(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 45(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 45(e)); 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, although it may 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 45(f)).

2. In its further contentions, 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 contends 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). 

3. 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. The native title party also 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.

4. 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]). Despite the absence of evidence about prior exploration activity, 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. In this respect, I accept 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 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.

5. 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 West Peak Iron that hunting weekends and other activities also take place along the Greenough River and Bangemall Creek to the north (at [26]-[27], [30], [40], [42]).

6. 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))

1. 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. However, this does not mean that there may not be other sites or areas 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.

2. Mr Papertalk states (at paragraph 19) that there are a number of waterholes along the Murchison River and in the proposed licence that are very important to the native title party and which, according to the native title party’s traditions, are home to a snake spirit called Bimbara.  According to Mr Papertalk, ‘bad things’ can happen to people who disturb the spirit, such as ‘incurable sickness and even death.’  In this context, the native title party’s contentions state (at paragraph 20) that the permanent spring waterholes and creek along the Murchison River are central to the native title party’s dreamtime stories.  The contentions refer specifically to Coolarburloo Pool, as well as to a waterhole near Gnamma Well, located on the eastern side of the proposed licence.  Mr Papertalk deposes (at paragraph 22) that the Murchison River and ‘connecting water bodies’ (including Melia Creek) are also very important to the members of the native title party, as they believe that the spirits of the deceased travel along the waters before going back to the land. 

3. Mr Papertalk states (at paragraph 21) that, due to its close proximity to Murchison River and Coollarburloo Pool, there are ‘a number of ceremonial sites’ within the proposed licence, which members of the claim group continue to use.  In its further contentions, the native title party (at paragraph 16) states that the claim group plan to re-open sites that were previously used as law grounds to perform initiation rites.  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.  According to Mr Papertalk, the native title party has a responsibility to look after and protect the country and significant sites in particular, and believes that failure to protect traditional sites by allowing mining to occur on the land will cause serious illness and even death within the community (paragraph 26). 

4. The native title party contends (at paragraph 26) that, if the proposed licence is granted without negotiation with the native title party, there is a real risk of interference with sites (even if inadvertent) 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 argues (at paragraph 27) that this risk is even greater given the fact that the location of significant sites is not recorded on the Register of Aboriginal Sites. The native title party maintains (at paragraph 26) 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).

5. The Government party contends (at paragraphs 46-47) that there is insufficient evidence to demonstrate that Coolarburloo Spring and the waterhole near Gnamma Well are sites of particular significance.  The Government party also submits that only a small section of Coolarburloo Spring is located within the proposed licence.  Certainly, the map attached to Mr Papertalk’s affidavit as ‘Annexure A’ shows ‘Coollarburloo Spring’ and ‘Coollarburloo Pool’ to be some 3-4 kilometres away from the southern boundary of the proposed licence.  Tribunal mapping also suggests that Coollarburloo Spring is approximately 3 kilometres from the southern boundary of the proposed licence.

6. Furthermore, the Government party contends (at paragraph 50) 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 49) 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.  In this respect, the Government party submits (at paragraph 52(d)) that the native title party’s evidence about Bimbara reflects a general spiritual concern to which s 237(b) does not apply, and there is no evidence of a specific area or site to which the concern relates. 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 51).

7. 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 particular significance of these sites, or the likelihood there will be interference. I note in this respect that the references to Coolarburloo Pool and the waterhole near Gnamma Well in the native title party’s contentions are not mentioned in Mr Papertalk’s affidavit, and the Bimbara spirit that is said to reside in those places is also said to reside in other waterholes and creeks along the Murchison River.  The native title party has not provided any evidence as to why these sites stand out from other waterholes and creeks in the claim area.  I note as well the native title party’s evidence in West Peak Iron regarding the significance of waterholes along Bangemall Creek (at [31]).

8. 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 that 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 that 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.

9. The contentions made on behalf of the grantee party state that it is fully aware of the requirements of tenement holders in respect to the AHA and in particular its obligations in relation to Aboriginal sites. The grantee party contends that its execution of a RSHA in favour of the overlapping Wajarri Yamatji claim will ensure that heritage issues ‘will be dealt with as required.’ Nevertheless, the grantee party states that it is also willing to undertake a heritage survey if required. I also note the Government party’s contention (at paragraph 52(b)) that, to the extent the waterhole near Gnamma Well and Coolarburloo Spring are sites of particular significance, the grantee party is on notice about their existence and is aware of its obligations in respect of those sites. 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.

10. 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.

Major disturbance to land and waters (s 237(c))

1. 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]).

2. The native title party contends that ‘the disturbance in this case has such consequences for people in the local area such as the Native Title Party such as to be properly called a major disturbance notwithstanding that is of no consequence to non-Aboriginal people who live far away’ (at paragraph 31, citing Dann v Western Australia (1997) 74 FCR 391 at 395). The native title party provides particulars of the likely disturbance at paragraph 4 of its further contentions, 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.  The native title party contends that these activities are likely to result in the removal of and disturbance to traditional bush tucker and medicine and are likely to cause native animals to vacate the area. 

3. The native title party concedes (at paragraph 17) that without specific information from the grantee party about the particular activities it intends to conduct on the proposed licence, the native title party is unable to comment on whether those activities are likely to involve major disturbance within the meaning of s 237(c) (I note that these further contentions were received prior to the lodgement of the grantee party’s contentions). However, the native title party submits that there is a possibility of major disturbance to land if the grantee party’s activities involve drilling or excavation.

4. The Government party contentions state (at paragraph 60) 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 in the absence of evidence to the contrary, it must be assumed that the grantee party will comply with these regulatory regimes;

   ·The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and it 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; 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.

5. 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:

   ·95.6 per cent of the proposed licence area covers pastoral leases, where disturbance has already and will continue to be carried out, as well as 4.4 per cent comprising land previously subject to a pastoral lease;

   ·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 an AHA with another native title party over 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; and

   ·There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.

1. 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

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E09/1886 to State Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member

27 November, 2012