Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd - [2012] NNTTA 108

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd, [2012] NNTTA 108 (17 October 2012)

Application No: WO11/1285

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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)

- and -

The State of Western Australia (Government party)

- and -

West Peak Iron Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 17 October 2012

Catchwords: Native title – future acts – 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), ss 61(2), 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Brown and Others v Queensland and Another (2005) 190 FLR 389
Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99
Fisher and Ors v Queensland and Another (2005) 192 FLR 9
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others 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
Northern Territory v Ward (2001) 167 FLR 398
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30

Representatives of the Ms Shirley Feng, Corser & Corser

native title party:

Representatives of the Mr Adam Sharpe, State Solicitor’s Office

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representatives of the Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd
grantee party:

REASONS FOR DETERMINATION

On 27 July 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1767 (‘the proposed licence’) to West Peak Iron Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is situated in the Shire of Mullewa. It is 33.28 square kilometres in size and located 57 kilometres north of Mullewa.
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 November 2011, an expedited procedure objection application (Form 4) was lodged with the Tribunal by Leedham Papertalk and Others on behalf of the Mullewa Wadjari People (‘the native title party’) in relation to E59/1767.
The proposed licence also wholly overlaps the Wajarri Yamatji native title claim (WC04/10). No objection application was received from this group.
The cut off date for lodgement of an objection in this matter was 28 November 2011. Section 76(d) of the Act allows for a fee waiver for objectors who fulfil the relevant requirements. A list of confirmed concession entitlements held by the Tribunal was checked on lodgement of the Form 4 and found to include a health care card from one of the objectors for the native title party, but this had expired in August 2011. The Tribunal wrote to the native title party representative on 22 November 2011 and asked for an updated copy of this document. It was provided on 10 January 2012, some 7 weeks later. While this is not necessarily consistent with an expedited process, the Tribunal understands that contacting members of a native title party over a December/January period can be difficult. The material that was provided, that is, a copy of a health care card which was current as at the date of the lodgement of the Form 4, was sufficient to support the fee waiver.
Accepting material supporting the fee waiver which came in after the final cut off date for lodgement of the actual Form 4 appears to be not inconsistent with the conclusion in Fisher and Ors v Queensland and Another (2005) 192 FLR 9, where it was stated (at [29]) that if supporting material was lodged ‘after the closing date but before an acceptance decision is made, then the Tribunal will take that material into account’. It is noted that the matter was accepted on 7 February 2012 by Deputy President Sumner, that is, after the supporting material was provided.
The Form 4 was amended on 24 January 2012, with the native title party providing expanded information in relation to part 8 of the Form. I do not include this information in the course of this inquiry as a) it was lodged out of time, b) the Tribunal has no power to allow substantive amendments (see Brown and Others v Queensland and Another (2005) 190 FLR 389) and c) the material outlined in part 8 of the Form lodged on 17 November 2011 was sufficient for Deputy President Sumner to accept the matter. As outlined in Northern Territory v Ward (2001) (167 FLR 398), paragraph 8 of Form 4 ‘only requires an outline of the type of evidence that will be relied on in a general sense. It does not require a particularisation of the types of evidence that will be relied on in a general sense’ (at [102]).
On that basis, I take the view that Deputy President Sumner’s acceptance was of the Form 4 lodged on 17 November 2011, with supplementary acknowledgement of the updated copy of the health care card supporting fee waiver, provided on 10 January 2012.
In accordance with standard practice, the Tribunal gave directions to 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.
Parties negotiated in relation to a draft heritage agreement for several months and directions were extended on a number of occasions to enable negotiations to continue.
On 17 May 2012, both the native title party and the grantee party requested that the matter proceed to inquiry. Directions were amended on three further occasions, at parties’ request.
Pursuant to those directions, Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 5 June 2012; the native title party provided a statement of contentions on 7 August 2012; the grantee party provided a statement of contentions on 13 August 2012; the State Solicitor’s Office provided the Government party’s statement of contentions on 20 August 2012 in response to the native title party contentions (‘SSO contentions’); the native title party filed an affidavit of Mr Leedham Papertalk sworn 21 August 2012; and the State Solicitor’s Office provided a reply to the affidavit on 27 August 2012 (‘SSO reply’).
The native title party’s statement of contentions and affidavit were submitted outside of the compliance date of 6 August 2012. Both the grantee party and the Government party contested the Tribunal’s acceptance of the native title party’s contentions (grantee party’s contentions (at 40) and SSO reply (at 5)), and noted the same orally at the listing hearing on 6 September 2012. Upon receipt of the native title party’s affidavit, the Tribunal allowed all parties the opportunity to respond prior to the listing hearing. Balancing the objections to accepting the submission and s 109(1) of the Act, I accept the native title party’s submissions, as it appears some of the reasons noted by the native title party for seeking directions amendments may have been implicated in the delays of lodging documentation, including a family funeral. I note, however, that it is preferable for parties to formulate a specific request for any extension of time sought for submission of contentions from the Tribunal, as late submissions may not always be accepted.
On 7 September 2012, I was appointed by President Graeme Neate as the Member for the purpose of conducting the inquiry.
All parties agreed the matter could be determined ‘on the papers’. As such, the inquiry is proceeding to be determined ‘on the papers’ as per s 151 of the Act and I am satisfied that it can be adequately determined in this way.

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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, 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 and Others (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 and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).

Evidence in relation to the proposed act

Evidence provided by the Government party

The Government party has provided: a statement of contentions; tengraph plan with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement application; copies of the proposed endorsements and conditions of grant and a tengraph quick appraisal.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·   Pastoral Lease 3114/900 (Wandina) at 70.0 per cent;
·   Crown Reserve 9701 for ‘De Grey Mullewa Stock Route’ at 29.8 per cent; and
·   A road reserve at less than 0.1 per cent.
The proposed tenement area is also partially overlapped by Special Prospecting Authority PA67 by 1.5 per cent.
Documentation establishes that the proposed tenement has previously been overlapped by 8 exploration licences, the earliest granted in 1982. The most recent of these was E59/1133 which was granted in 2006, wholly overlapped the tenement, and expired in 2011. It also establishes that there have been 6 mining licences, between less than 0.1 per cent and up to 3.6 per cent overlap.
The quick appraisal document shows that services affected include some minor roads, watercourses, tracks, a fence line, three well bores and a soak.
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.
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 no exploration activities may be carried out on Stock Route Reserve 9701 which restrict the use of the reserve (Condition 7).
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 the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
[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.
[3]The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.

Evidence provided by the native title party

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

Contentions

The contentions addressing the native title party’s community or social activities are contained in paragraphs 14-29. They refer (at 14) to the native title party’s regular 4 day ‘hunting weekends’ along the Greenough River and its connecting waterways such as Bangemall Creek, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo. The native title party state (at 14) that the land and waters along the Greenough River and Bangemall Creek are particularly important to the Mullewa Wadjari People as it is a major travel and hunting route for the hunting weekends, due to the fertile grounds surrounding the waters and its close proximity to Geraldton and Mullewa, where the majority of the native title party resides. The contentions define ‘the lands and waters along the Greenough River and Bangemall Creek’ as the ‘River area’ (at 14), and the River area is described (at 15) as ‘both on and adjacent to’ the proposed tenement.

s 237 (a)

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 16);
·   ‘The hunting weekends occur on an almost weekly basis (if weather permits). Although known as ‘hunting weekends’ amongst the Mullewa Wadjari community, the hunting trips do not always occur on the same days of the week nor do they always include Saturday and Sunday’ (at 17);
·   ‘Generally around 90% of the Mullewa Wadjari community members attend the weekly hunting weekends, which usually amounts to in excess of 100 people traveling in more than twenty 4WD vehicles’ (at 18);
·   ‘During the hunting weekends, the community members travel along the River area and hunt for 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. The community members also engage in fishing along the River area for wadbi, a freshwater fish’ (at 21);
·   Hunted meats are ‘buried and cooked underground at various camp spots along the River area’ and ‘brought back to the Mullewa Wadjari community where they will be shared amongst the members’ (at 22), or ‘used to trade for commodities such as petrol and diesel which is used by members of the community’ (at 23);
·    ‘The River area is also where the Native Title Party member forage and collect 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 25); and
·   ‘During the hunting weekends, adults within the Native Title Party will teach the children traditional knowledge including how to travel and follow routes to significant sites, the boundaries of areas restricted to access by initiated Aboriginal lore men, where to find sources of bush medicine, food and water, how to cook traditional food, the traditional language and connection to country, the relevant dreamtime stories and how to read the sky’ (at 26).
The contentions note the following uses of the River area (noting the River area is defined in the contentions as both ‘on and adjacent to’ the proposed tenement – see [26] above):
·   ‘In addition to the community-wide hunting weekends, individual members and families of the Native Title Party also regularly travel along the River area for hunting and gathering, foraging, fishing and camping purposes’ (at 19);
·   ‘The River Area is an important hunting and travel route for the native title party because it is fertile and supports many animals and plants which form a major food source for the members’ (at 20);
·   ‘During winter, the Mullewa Wadjari community members hunt for emu eggs along the River area...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 24);
·   ‘The River area is also where the Native Title Party member (sic) forage and collect bush medicines, witjuti grubs and sap from the bimba tree, which is also known as the lollipop sap. This sap is regarded as a highly valuable commodity by the Native Title Party and is actively traded between the community members’ (at 25); and
·   ‘Due to the fertile lands and its close vicinity to Geraldton and Mullewa where significant Aboriginal communities exist, the River area is favoured by members of the Native Title Party as an easily accessible and culturally significant travel and hunting ground’ (at 28).

The contentions note (at 27) that the native title party use the proposed tenement area ‘and its surrounds’ 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 contentions also state (at 29(a)-(d)) that if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the proposed tenement, there is a real risk that the following activities of the native title party will be directly interfered with, including:
·   ‘Hunting, gathering, fishing, camping and the teaching of laws and customs to children carried out by members of the Native Title Party along the Greenough River and up through Bangemall Creek’;
·   ‘The travel route frequently used by the Native Title Party to attend sacred lore meetings, ceremonies and sites’;
·   ‘The balance of wildlife and food sources around the Tenement which will directly interfere with the Native Title Party’s hunting, foraging and fishing activities’; and
·   ‘If land on and around the Tenement is damaged, the Mullewa Wadjari community will have to travel further and further out in order to hunt and gather food and resources’.

s 237(b)

The contentions addressing sites or areas of particular significance (at 30-38), in summary state:
·   The ‘area’ in which the tenement is located is ‘site rich’, noting that registered sites in ‘close proximity’ to the tenement include Bangemall Creek, Greenough River and Tallering Peak (at 36);
·   ‘The Native Title Party has a very strong cultural connection to the Greenough River, and its surrounding bodies of water’ (at 31);
·   Of ‘particular importance’ are ‘a number of small, natural, permanent waterholes along the Bangemall Creek which are central to the Native Title Party’s dreamtime stories, and the teaching of laws and customs to younger generations’...‘these waterholes provide fresh water to the community while they are engaged in hunting, camping and other activities within the area’ (at 31);
·   ‘The Native Title Party believes that after death, the spirits of its deceased travel into the Greenough River and surrounding water bodies, including the Bangemall Creek and various permanent waterholes, and eventually settle in the land itself. Accordingly, it is of vital importance to the Native Title Party that these water bodies are not disturbed or damaged’ (at 32);
·   ‘[T]he Greenough River and the permanent waterholes are part of the Native Title Party’s dreamtime stories’ which ‘depict the River as a man-like spirit snake named Bimbara’.‘[I]f the River or waterholes housing the Bimbara 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 33);
·   When exploration activities are to occur without arrangement 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 Bimbara and their ancestors’ spirits are disturbed by damage to or interference with the places that they inhabit’ (at 33);
·   ‘[A]s traditional custodians of the land, there 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 and carried out ceremonies and burial grounds’ (at 34);
·   ‘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 significance sites in the area as well as damage to items left behind by the ancestors of the Native Title Party’ (at 35);
· 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 NTA’ (at 35);
· ‘Despite the protections afforded by the AHA, suspected damage as a result of mining activities has already materialised at the nearby Tallering Peak site’ and ‘[t]he Native Title Party believes that it has failed in 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 37);
·   The probability of further damage to sites is ‘increased in the present case as the location of the significant sites within the Tenement are not marked out on the Register of Aboriginal Sites’ (at 37).

s 237(c)

In addressing the issue of major disturbance of land or waters, the contentions state (at 39) that regard should be had to the proximity of the tenement to Geraldton and Mullewa, where the majority of the Mullewa Wadjari People live, the frequent use of the Tenement and surrounding areas as travel and hunting grounds by the Mullewa Wadjari community, and the existence of unregistered sites in the tenement area which are unknown to the grantee party.

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 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 E59/1767 (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 over Bangemall Creek and very close to the Greenough River. We travel, hunt and camp around the Tenement area regularly, almost every week. This is the route we use on our hunting weekends because the area is very good hunting ground and close to the Mullewa community.
7.We usually have over 100 community members going on the hunting weekends. A lot of them are children 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.We hunt for kangaroos, emus, wild turkeys, goanna, blue tongue lizards, porcupines and snakes in and around the Tenement area. We also do a lot of fishing along the Bangemall Creek and watercourses because it has good fishing spots for wadbi (freshwater fish).
9.We collect bush vegetables and bush medicine in and around the Tenement area. For example, we collect ngarlku (wild onions) 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.
10.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.
11.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.
12.Different seasons give us different foods to hunt and gather. For example, we hunt for walu (emu eggs) in winter along the Greenough River, Bangemall Creek and watercourses. 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.
13.The hunting weekends are very important to the Mullewa Wadjari 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. 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 gathering food from the bush to share with our people.
14.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
15.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.
16.There is a law ground on the south east part of the Tenement. This is where young men go through initiation to become a man of the tribe. Women cannot enter these grounds.
17.There are a number of permanent waterholes along Bangemall Creek 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.
18.These waterholes also provide us with good drinking water in all seasons when we travel, camp and attend ceremonies along Bangemall Creek.
19.The Greenough River and the connecting water bodies, including Bangemall Creek are very important because we believe that after death, the spirits of the deceased travel along these waters before going back into the land.
20.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.
21.There are a number of significant places very close to the Tenement area.
a.   There are caves in the breakaway country in Wandina, south of the Tenement, where I have seen signs of occupation by my ancestors such as smoke marking from cooking fires on the cave ceilings.
b.   The Tallering Peak site is located just 2km south of the Tenement. This is important ceremonial ground and has great mythological significant [sic] to the Mullewa Wadjari people. I believe mining activities in the area and the failure to protect the 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.
c.    There are ceremonial grounds all along Bangemall Creek which my people continue to use today.
22.As traditional custodians of the land, we have responsibility to look after and protect the country, particularly the sites that are significant to us and our customs and culture. My ancestors were initiated on this land and have walked all over this country. There needs to be proper negotiations by my people with the exploration company and heritage surveys done before any exploration activities takes place so that we know what they plan to do and can advise them 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 grantee party’s contentions state (at 31) that the proposed exploration activities are the usual activities associated with exploration licences, including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and surveys. The grantee party states (at 5 and 11) that it has entered into an alternative heritage agreement with the Wajarri Yamatji native title claim group in relation to the proposed tenement on 15 October 2011, which adequately ensures that the grantee party is compliant with existing law and policy, including the AHA. The grantee party notes (at 10) that it has never been prosecuted or accused of breaching the AHA, and the fact that the grantee party has entered into an AHA with another native title party demonstrates its willingness to meet the concerns of an objector in respect of site protection (at 13).
The grantee party highlights (at 15) that there are no Aboriginal communities or registered sites situated on the tenement, and that the grantee party has entered into an alternative heritage agreement which provides for the conduct of heritage surveys to locate any Aboriginal sites and areas of significance which are not registered (at 18).
The grantee party states (at 19-21) that the proposed tenement does not encroach upon the following areas, and notes:
·   The ‘portion of Bangemall Creek which is registered as an Artefact/Scatter site (site 30060)’ is ‘in fact located at least 7 kilometres north’ of the proposed licence;
·   Greenough River – the tenement is located at least 8 km away from the nearest point to this registered site (DIA 24761) at its nearest point; and
·   Tallering Peak - the tenement is located more than 3 kilometres from this site (registered with DIA as 4454).

(I do, however, note that the tenement is located near to a portion of Bangemall Creek, which passes on a north/south direction about 70 metres away from the western boundary of the tenement, at its closest point.)

The grantee party submits (at 24) that the distance from these sites ensures that no interference with these sites is likely to occur as a result of the grant of the tenement, and that the grantee party intends to comply with all tenement conditions. The grantee party also states that the conditions and endorsements to be imposed on the tenement under the Mining Act 1978 ensure that their activities are not likely to interfere with the native title party’s community and social activities.

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 and Another (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 state in its contentions (at 27-28) that the native title party contentions contain both submissions and a number of factual assertions for which the basis has not been provided or attributed to a deponent, and notes that the contentions are signed by the legal representatives of the native title party. The Government party submit that the Tribunal can give little or no weight to any of the unattributed assertions of fact contained in the contentions. I consider and comment on the weight I attribute to the contentions and the subsequent affidavit filed in support, below. The Government party reply also refers (at 20-22) to the existence of some inconsistencies in evidence between the native title party contentions and Mr Papertalk’s affidavit, being the reference to the spirit known as Bimbara (discrepancy in whether it is located at Greenough River or in the waterholes along Bangemall Creek), and references to a law ground on the south-east part of the proposed tenement area and caves south of the proposed tenement area with signs of occupation and ceremonial grounds, not referred to in the contentions. I prefer the affidavit evidence to the extent of these inconsistencies.
The native title party’s contentions directed at s 237(a) of the Act are contained in paragraphs 14 to 29, with the primary community and social activity described as ‘hunting weekends’, which include foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children. The content of these contentions are summarised in detail above at [27]-[30]. The Government party response notes (at 44) that the ‘hunting weekend’ activities are referred to as being generally conducted ‘on and adjacent to’ the area of the proposed tenement, and submits that no account is given of which of these activities in fact occur on the proposed tenement area or how frequently those activities occur on the proposed tenement area. I agree that it is not clear from the contentions whether all ‘hunting weekend’ activities occur in the River area only (noting that the contentions define the River area as including areas both on and adjacent to the proposed tenement) or wholly within the proposed tenement. I consider that the description of the ‘hunting weekends’ in the native title party’s contentions seem to imply that the ‘hunting weekends’ occur in the River area. For example, reference is made to activities occurring on ‘Greenough River and its connecting waterways such as Bangemall Creek, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo’ is followed by a description in the same paragraph that the ‘land and waters along the Greenough River and Bangemall Creek (River area) are particularly important to the Mullewa Wadjari People as it is a major travel and hunting route for the hunting weekends due to the fertile grounds surrounding the waters and its close proximity to Geraldton and Mullewa, where the majority of the Mullewa Wadjari People resides’. It seems implicit that ‘hunting weekend’ activities occur in the River area, that is, both within and adjacent to the tenement.
As the SSO reply notes (at 16), Mr Papertalk’s affidavit at paragraphs 10, 11, 13 and 16 give some account of which activities occur on the proposed tenement area. These are described by Mr Papertalk as camping, hunting, making tools for use in ceremonies, attending initiation ceremonies, using and trading emu eggs and passing on traditions to children. On the basis of the implicit assumption in the native title party contentions discussed at [40] above, and the subsequent evidence of Mr Papertalk about which activities occur in the proposed tenement, I accept that some of the ‘hunting weekend’ activities occur within the tenement bounds.
As for other activities on the proposed tenement, I accept that these comprise those activities mentioned (at 29) in the native title party’s contentions (outlined at [27]-[30] above), as these refer to the proposed tenement only. In summary, these activities comprise travel to sites where the native title party conduct and attend sacred lore meetings, ceremonies and sites, hunting, gathering, fishing, camping and the teaching of laws and customs to children along the Greenough River and up through Bangemall Creek. I note that it is not clear how frequently the native title party members attend sacred lore meetings, ceremonies or sites. It is also not clear whether the activities of hunting, gathering, fishing, camping and teaching of laws and customs to children referred to in these paragraphs occur during the ‘hunting weekends’ only or also on other occasions. On the assumption that a portion of these activities in fact occur on the proposed tenement, as opposed to adjacent to the tenement, I accept that these activities may occur on an approximately weekly basis as per the description of the ‘hunting weekends’. However, I agree with the Government party contentions (at 28) that the concerns the native title party raise in respect of interference with community or social activities in its contentions are essentially speculative. 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]). I also note that the native title party states that there is a risk the activities mentioned will be directly interfered with if exploration activities such as those contemplated by s 66 of the Mining Act are carried out on the tenement. However, the Government party contentions note (at 15), the grantee party’s stated intentions indicate that it will not exercise the full suite of rights conferred by s 66 of the Mining Act. In addition, the affidavit refers to disturbances related to ‘mining’ rather than exploration activities (at 21(b)).

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 and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 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 (at 31) that its activities will include conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling, and surveys. It notes (at 31) that the work which is ground disturbing will be broad based, and submits this would only be considered minor disturbance. Mr Papertalk is convinced 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 14). However, it appears this exploration activity will not require any heavy machinery as stated earlier, and, as the Government party contentions note (at 15), the grantee party’s stated intentions indicate that it will not exercise the full suite of rights conferred by s 66 of the Mining Act.
The grantee party contentions state (at 11) that its existing AHA with the Wajarri Yamatji over the proposed tenement adequately ensures the grantee is compliant with existing law and policy. The Government party refers (at 20) to the grantee party’s willingness to enter into an AHA with Wajarri Yamatji (after an initial RSHA). The Government Party also notes (at 21) that in general, an AHA provides, amongst other things, that the grantee party must: notify the native title party about proposed on-ground works (whether ground disturbing or not) and provide detailed information about those works before commencing them; consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works; carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances; and consult with the native title party before applying for any consent under section 18 of the AHA.
To the extent that the Tribunal accepts the evidence demonstrates that members of the native title party carry out community and social activities, the Government party submits that there is not likely to be direct interference because:
·   The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive. Any ground disturbing activities (such as exploration drilling) are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns (at 45(a));
·   The grantee party has indicated its willingness to enter into an RSHA-type agreement with the Wajarri Yamatji native title claimants which also overlaps this tenement by 100 per cent (at 45(b));
·   The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity, and 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 45(c));
·   The proposed tenement is almost completely covered by pastoral lease, a crown reserve and road reserves, and the native title party’s carrying on of community and social activities has been subject to, or co-existent with, all of these lawful activities for a significant period of time (at 45(d));
·   There are no Aboriginal communities within the area of the proposed tenement (at 45(e));
·   The low-scale and infrequent exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon the activities conducted during ‘hunting weekends’ in the proposed tenement, particularly given the intentions of the grantee party to conduct those activities with cultural sensitivity (at 45(f));
·   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 45(g));
·   It is not clear from the native title party’s contentions whether it conducts law ceremonies within the proposed tenement area, but to the extent that it does, the Government party submits that the activities of exploration and ceremony will only potentially intersect in the limited period during which law business is held (at 45(h)); and
·   The grantee party’s evidence is of an intention to comply with its legal obligations to respect and accommodate Aboriginal cultural issues, and the Tribunal can infer from that evidence that so long as the grantee party is made aware of the location and time of each year’s ceremony, it is not likely to conduct its operations in a way which interferes with the ceremony (at 45(h).
In reaching a conclusion in relation to s 237(a) of the Act, I have taken into account these factors outlined by the Government party (at 45(a)-(h), including past exploration/mining and present pastoral activities that are likely to have affected, and are likely to continue to affect (in respect of the pastoral activities), the community or social activities of the native title party. That is, the carrying on of the community and social activities described in the native title party’s contentions and by Mr Papertalk is currently subject to the lawful activities of the Wandina pastoralists in terms of the claim/proposed licence overlap. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the grant of the exploration permit and particularly the pastoral lease, will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
The total area of the Mullewa Wadjari claim is approximately 35,616 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 makes it less likely that exploration activity, of the nature outlined in the grantee party’s program of works, will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be 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 overlap between the claim and the proposed licence area. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over 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.
The native title party contentions directed at s 237(b) of the Act are contained in paragraphs 30 to 38 of its submissions. I note that these state, as previously outlined at [31], there is a risk of interference with significant sites in ‘proximity’ to the tenement, being Bangemall Creek, Greenough River and Tallering Peak. Contentions refer to a strong cultural connection to the Greenough River and its surrounding bodies of water, particularly permanent rockholes along Bangemall Creek and Greenough River, which are central to the dreamtime stories of the spirit snake Bimbara and the teaching of laws and customs to the younger generations. The native title party believe that the spirits of the deceased are in the land and water of Greenough River, Bangemall Creek and various permanent rockholes. The native title party’s traditions are that there is a requirement to care for and protect places where its ancestors lived, and particularly where they camped and carried out ceremonies and had burial grounds, and the nature of some non ground disturbing work may cause interference with the sites to a level that is distressing to the native title party and culturally inappropriate. Contentions argue that the protections afforded by the AHA are insufficient, as evidenced for example by the suspected damage as a result of mining activities at the Tallering Peak site. The native title party submits that there is an increased risk of interference with sites on the proposed tenement because the location of these are not known to the grantee party as they are not on the Register of Aboriginal Sites.
The native title party argue (at 37) that 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 significant sites in the area, as well as damage to items left behind by ancestors of the native title party. It states that 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 s 237(b) of the NTA.
In response, the grantee party notes (at 24) that the conditions and endorsements which would apply to the grant and confirms that it intends to comply with these, as well as the Aboriginal Heritage Act, the Mining Act and all subsidiary legislation. The Government party contentions also state (at 23) that to the extent that members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the relevant regulatory regime. Rather, the evidence must demonstrate that the particular grantee, undertaking the particular act, will not comply with a regulatory regime. Evidence about other grantee parties contravening the law is irrelevant unless that can reasonably lead the Tribunal to conclude that the particular grantee party in question will do the same, and there is no such evidence in this proceeding. I agree with the Government party contentions (at 17) that there is no evidence to contradict the assumption that the grantee party will not act in breach of the relevant statute law, regulations or conditions imposed upon it.
The Government party submits in its contentions (at 54) that there are no registered Aboriginal sites within the area of the proposed tenement, and that the native title party contentions do not identify any particular sites within the proposed tenement. It states (at 56) that general evidence about the Greenough River and Bangemall Creek, along with associated permanent rockholes, is not sufficient to establish that an area or site is of ‘particular significance’ and (at 55) that it does not accept the contention that mere presence in an area may cause direct interference with that area. The Government party response also states (at 56) that it does not accept the implicit contention at paragraph 6 of the native title party’s contentions that a lack of consultation of native title holders before entering land or doing an activity amounts to interference for the purposes of s 237(b) of the Act. The Government party notes (at 57) that a general reference to places where ancestors have carried out ceremonies and burial grounds does not provide the Tribunal with sufficient evidence to enable it to undertake the qualitative or comparative assessment that is required by s 237(b) of the Act. It states (at 58) that it does not accept there is any evidence to support a finding that the proposed tenement contains any sites, let alone any sites of ‘particular significance’. It notes that the sites referred to at paragraph 36 of the native title party’s contentions (Bangemall Creek, Greenough River and Tallering Peak) are outside the area of the proposed tenement and there is no evidence that the grantee party would visit, go near or conduct any activities at or near sites outside the tenement. The Government party further states (at 59) that it does not accept the contention, generally made at paragraph 35 of the native title party’s contentions, that mere presence in an area may cause direct interference with that area. Similar submissions are made in the SSO reply (at 24 - 32).
The Government party response states (at 62) that in the event of there being any areas or sites of significance within the proposed tenement, interference with those areas is not likely for the following reasons:
·   The concerns expressed in paragraphs 4 and 6 of the native title party’s contentions about disturbance to Greenough River and Bangemall Creek and associated waterholes, and places where Aboriginal people have lived reflect an overestimation of the activities of the grantee party in the event the proposed tenement is granted;
·   The proposed activities of the grantee party will be relatively minor in respect of ground disturbance, particularly when considered in the context of the pastoral infrastructure already established in the area;
·   Endorsements and conditions which the Government Party proposes to place on the proposed tenement are intended to prevent most of the native title party’s concerns arising;
· Evidence about the general spiritual significance of Bangemall Creek and Greenough River and associated waterholes reflects a general spiritual concern to which s 237(b) of the Act does not apply;
·   The area of the proposed tenement has been subject to prior mineral exploration, so the activities contemplated by the grantee party would be the same or not more significant than the previous use of the area;
·   Pursuant to the Aboriginal Heritage Act 1972 (‘AHA’), any ‘Aboriginal site’ (as defined in s 5 AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18 the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case is likely to involve the native title party); and
·   The grantee party has indicated its willingness to enter into an RSHA-type agreement with Wajarri Yamatji native title claimant, which is a relevant factor.
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 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 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 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. For the sites said to be located on the proposed tenement, I consider this evidence does not demonstrate any ‘particular’ significance for the purposes of s 237(b) of the Act. The sites that are not located on the proposed tenement are not particularly relevant to this inquiry. I am satisfied that the AHA and its associated processes, the endorsements and conditions to be placed on the proposed tenement 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 risk of interference with sites of particular significance as a result of the grant of the proposed licence.

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 contentions directed at s 237(c) of the Act are contained in paragraph 39 of its submission, being that the Tribunal should have regard to the proximity of the proposed tenement to Geraldton and Mullewa, where the majority of the native title party live, the frequent use of the tenement and surrounding areas as travel and hunting grounds by the native title party, and the existence of unregistered sites in the tenement area which are unknown to the grantee party.
The Government party contentions state (at 70) that the grant of the proposed tenement is not likely to involve major disturbance relevant to s 237(c) of the Act because:
·   The grantee party has stated the work that it will conduct which is ground-disturbing will be broad based and would only be considered minor disturbance;
·   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, 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 almost completely covered by a pastoral lease, a crown reserve and road reserves, 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:
·   70.0 per cent of the proposed licence/claim overlap area covers a pastoral lease 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 an AHA with another native title party over the same proposed tenement;
·   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.
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E59/1767 to West Peak Iron Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
17 October 2012