Leedham Papertalk & Ors on behalf of Mullewa Wadjari/Western Australia/Douglas Eric Kennedy, Leonard Geoffrey Haworth

[2013] NNTTA 31

NATIONAL NATIVE TITLE TRIBUNAL

Leedham Papertalk & Ors on behalf of Mullewa Wadjari/Western Australia/Douglas Eric Kennedy, Leonard Geoffrey Haworth [2013] NNTTA 31 (3 April 2013)

Application No:               WO2012/0699

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, Malcolm Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones and Raymond Merritt on behalf of Mullewa Wadjari (WC1996/093) (native title party)

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The State of Western Australia (Government party)

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Douglas Eric Kennedy and Leonard Geoffrey Haworth (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  3 April 2013

Catchwords:  Native title – future acts – proposed grant of an exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Champion v Western Australia (2005) 190 FLR 362

Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21

Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan [2001] NNTTA 78

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

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

Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 138

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 on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65

Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027

Parker v Western Australia (2008) 167 FCR 340

Rosas v Northern Territory (2002) 169 FLR 330

Silver v Northern Territory (2002) 169 FLR 1

Smith v Western Australia (2001) 108 FCR 442

Walley v Western Australia (2002) 169 FLR 437

Ward v Western Australia (1996) FCR 208

Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd [2004] NNTTA 108

Representative of the      Ms Shirley Feng, Corser & Corser
native title party:             

Representatives of the     Mr Jeff O’Halloran, State Solicitor’s Office
Government party:         Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the      Mr Douglas Kennedy
grantee party:                 

REASONS FOR DETERMINATION

1. On 21 March 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/4276 (‘the proposed licence’) to Douglas Eric Kennedy and Leonard Geoffrey Haworth (‘the grantee party’) and included in the notice a statement that it considers that the grant attracts 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 20 graticular blocks (approximately 60.9 square kilometres) located 129 kilometres east of Kalbarri in the Shire of Murchison.  The whole of the land within the proposed licence is subject to the registered native title claims of the Wajarri Yamatji (WC2004/010 – registered from 5 December 2005) and the Mullewa Wajdari Community (WC1996/093 – registered from 19 August 1996).

3. On 18 July 2012, Leedham Papertalk, Malcolm Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones and Raymond Merritt on behalf of the Mullewa Wadjari Native Title Claim Group (‘the native title party’) made an expedited procedure objection application with the Tribunal in respect of the proposed license (designated by the Tribunal as WO2012/0699).

4. In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted.  These directions allowed a four month period after the closing date for the lodgement of objections (in this case, 22 July 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent.  At a preliminary conference held on 11 September 2012, Mr Kennedy indicated that he and Mr Haworth had offered to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party and, as the native title party did not accept the offer, they had elected to proceed directly to the inquiry. Consequently, the native title party requested another week in which to provide its contentions and supporting documents and, on 8 November 2012, its representative requested a further three weeks due to delays in obtaining instructions, both of which the Tribunal granted.  On 19 December 2012, the Government party requested a further two weeks in which to respond to the native title party’s contentions and directions were amended accordingly. 

5. Pursuant to those directions, the following submissions were provided to the Tribunal:

   ·the Government party’s supporting documents on 13 November 2012 (‘GVP Documents’);

   ·the native title party’s statement of contentions on 12 December 2012 (‘NTP Contentions’);

   ·a written statement made by Mr Kennedy on 3 January 2013 (‘Kennedy Statement’); and

   ·the Government party’s statement of contentions in response to the NTP Contentions on 31 January 2013 (‘GVP Reply’).  

6. At a listing hearing on 14 February 2013, parties informed the Tribunal that they did not intend to provide any further submissions and agreed that the matter could be determined ‘on the papers’ pursuant to s 151(2) of the Act (that is, without a formal hearing). Having considered the material before me, I am satisfied that it is appropriate to determine the matter in this way, notwithstanding the fact that the native title party has not provided evidence in support of its contentions. I consider this issue in further detail below.

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.

1. 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 the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.

2. In relation to s 237(a), I adopt the legal principles identified 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]:

3. With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 at [31]–[38] and [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v State of Western Australia (2008) 167 FCR 340). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).

4. The task of the Tribunal in relation to s 237(a) 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 is likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little’), especially [41]-[57]).

Evidence in relation to the proposed act

1. GVP Documents include:

   ·a Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence;

   ·a report and plan from the Register of Aboriginal Sites (‘Register’) maintained by the Department of Indigenous Affairs (‘DIA’);

   ·a copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract;

   ·an instrument of licence and the first schedule listing land included and excluded from the grant;

   ·a Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.

2. The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:

   ·Pastoral lease 3114/867 (Yallalong) at 100 per cent;

   ·Historical lease 392/402 at 97.1 per cent; and

   ·Historical lease 394/530 at 2.9 per cent.

3. The quick appraisal also establishes that 25 per cent of area within the proposed licence has previously been subject to another exploration licence granted in 2010, which was surrendered in 2011.

4. The report from the DIA Register indicates that there are no registered sites or ‘other heritage places’ within the proposed licence.  However, Tribunal mapping shows that there is a registered site three kilometres south west of the proposed licence (Site ID 9974; Wright’s Loop; open access; no restriction; artefacts/scatter) and another four kilometres to the east (Site ID 16923; Brockman Mine 07; open access; no restriction; artefacts/scatter).

5. The Draft Tenement Endorsement and Conditions Extract indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]). The proposed licences will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease to be notified of the grant or transfer of the proposed licence and of certain activities.

6. The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the proposed licence if breached) are noted:

   1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any 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.

Native title party contentions and evidence

1. The native title party contends that the grant of the proposed licence is likely to:

   ·interfere directly with the carrying on of the community and/or social activities of the native title party;

   ·interfere with areas or sites of particular significance to the native title party in accordance with its traditions; and

   ·involve major disturbance to the land or create rights whose exercise is likely to involve major disturbance to the land.

2. As I alluded to above, the native title party did not provide any evidence in support of its contentions. However, it did make a number of specific contentions regarding the criteria in s 237. I examine these contentions as they relate to each of the criteria below.

Grantee party contentions and evidence

1. The grantee party relies on the written statement of Mr Kennedy.  In his statement, Mr Kennedy makes the following submissions:

   ·The grantee party is aware of the AHA and the obligation not to disturb heritage sites, whether registered or not (paragraph 1);

   ·There are no registered sites or other heritage places within the proposed licence (paragraphs 2-4);

   ·The grantee party is willing to enter into an RSHA with the native title party, and has already offered an RSHA to the Wajarri Yamatji (paragraphs 5 and 9);

   ·The grantee party is also willing to consider an alternative heritage agreement in lieu of an RSHA, subject to reasonable terms and costs (paragraph 5);

   ·The grantee party is prepared if necessary to undertake a heritage survey according to the terms of an acceptable heritage agreement if ground-disturbing exploration were to be undertaken (paragraph 5);

   ·The area of interest is the central part of the proposed licence running north to south from Piper Well to Bigarter Well towards Meebree Hill (paragraph 5);

   ·The exploration programme will comprise aerial surveys; geological mapping; electrical and magnetic surveys; rock chip, soil and ‘mag-lag’ (magnetic) sampling; and incidental activities.  The grantee party does not intend to carry out ground-disturbing activities and only hand-held equipment will be used (paragraph 6); 

   ·The grantee party (and presumably any employees, contractors or agents it intends to engage) will access the area from the Yallalong - Coolcalalya Road and existing roads and tracks using a four-week drive and quad bikes (paragraph 7);

   ·The exploration programme will be carried out by two to three people, with the addition at some stage of a consulting geologist and assistant (paragraph 7);

   ·No water or other materials or resources will be extracted from the area for use in the exploration programme (paragraph 7);

   ·The proposed licence is located close to Yallalong homestead and was once used as a holding paddock, which has degraded the area’s vegetation(paragraph 7);

   ·The graticular blocks in which the Murchison River is located are likely to be given up when the grantee party is required to surrender part of the proposed licence area (paragraph 11); and

   ·Mr Kennedy has been involved in the North Swan Landcare Group since 1997 and is conscious of conservation, revegetation and the need to treat the area with respect (paragraph 14).

2. Although Mr Kennedy’s submissions were not made by way of an affidavit, I accept that his evidence is a true and accurate statement of the grantee party’s intentions.  The Tribunal has previously found that it is entitled have regard to such evidence: Silver at [29]-[30].

3. Mr Kennedy also provided several photographs taken at various places within the proposed licence, which depict varying levels of disturbance to the vegetation.  Although Mr Kennedy has not specified the geospatial coordinates of the places where each of the photographs was taken.  However, no party has questioned whether the photographs were taken within the proposed licence and I am prepared to accept that they were.

Previous determinations made in relation to future acts within the claim area

1. The Government party submits (at GVP Reply, paragraph 26) that the statements made in the NTP Contentions are not evidence but assertions unsupported by evidence and should not be relied on by the Tribunal.  Furthermore, the Government party submits that the statements are too general to be given any (or any significant) weight or otherwise relied on by the Tribunal (GVP Reply, Paragraph 27).  I accept those submissions.

2. No burden of proof lies on any party to proceedings before the Tribunal inquiring into the matters referred to in s 237: see Ward v Western Australia (1996) FCR 208, at 217 (‘Ward’); Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21. Rather, the Tribunal adopts a common sense approach to the evidence. However, where facts are peculiarly within the knowledge of a party and no evidence is adduced, the Tribunal is entitled to draw an adverse inference against that party: see Ward at 217; Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan [2001] NNTTA 78 at [63]; Silver at [23]. Where a party has the opportunity to provide evidence but fails to do so, the Tribunal is normally entitled to determine the matter without it: Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd [2004] NNTTA 108 at [18]-[19]. Nevertheless, the Tribunal is also entitled make its own inquiries and satisfy itself of the fact in issue, subject to observing the requirements of procedural fairness.

3. Though the Tribunal will not normally conduct its own inquiries, s 146(a) of the Act does empower the Tribunal to receive into evidence the transcript of evidence of any other proceedings before the Tribunal and other bodies and draw any conclusions of fact from the transcript that it thinks proper. Similarly, s 146(b) empowers the Tribunal adopt any relevant report, findings, decision, determination or judgment of such bodies. In this case, the Tribunal has recently made several determinations in relation to expedited procedure objections in which the native title party advanced similar contentions to those it makes here. Although each of those matters was determined on the papers and there is therefore no transcript of evidence as such, the Tribunal is nevertheless entitled to have regard to the evidence given in those proceedings, provided it is relevant to the present inquiry: see Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9 at [149] and the cases cited. I have had regard to the evidence in those matters and adopt the Tribunal’s findings where relevant.

4. Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/West Peak Iron Ltd [2012] NNTTA 108 (‘West Peak Iron’) concerned an exploration licence located approximately 70 kilometres north of the proposed licence.  In support of the objection, the native title party provided an affidavit sworn by Leedham Papertalk.  Mr Papertalk is one of the named applicants for the Mullewa Wadjari claim, and it was accepted that he had authority to speak for the land on behalf of the claim group.

5. In his affidavit evidence, Mr Papertalk noted that the exploration licence is situated on Bangemall Creek and very close to Greenough River, a route taken by members of the claim group on regular hunting weekends.  Mr Papertalk deposed that members of the native title party hunt in and around the tenement area and fish along Bangemall Creek and other watercourses in the area.  Mr Papertalk also deposed that members of the native title party engage in other activities such as collecting bush vegetables, bush medicines and bimba tree sap; cutting branches from mulga trees to create spears, boomerangs and other tools used in ceremonies; and hunting and trading emu eggs.  Mr Papertalk said that there are a number of permanent waterholes along Bangemall Creek and the tenement area in general that are inhabited by a snake spirit called Bimbara (or Bembara).  According to Mr Papertalk, Greenough River and connecting water bodies, including Bangemall Creek, are important to members of the native title party, as they believe that the spirits of the deceased travel along these waters on their way back to the land.  Mr Papertalk also refers to Tallering Peak, describing it as an ‘important ceremonial ground’ which is of great mythological significance to the native title party.

1. In relation to Mr Papertalk’s evidence about the native title party’s community and social activities, the Tribunal found that, while it was unclear whether all of the activities associated with the hunting weekends were carried on in the area within and adjacent to the exploration licence, at least some of them were.  However, the Tribunal found that the concerns raised by the native title party regarding interference with its community or social activities were ‘essentially speculative’.  The Tribunal considered that, given the general and unspecific nature of Mr Papertalk’s evidence, it could not find that the grant of the exploration licence was likely to interfere with the native title party’s community or social activities in a substantial or more than trivial way (West Peak Iron at [42]). In relation to Mr Papertalk’s evidence concerning sites of particular significance, the Tribunal acknowledged the native title party’s cultural connection to Greenough River and the surrounding bodies of water, but found that the evidence ‘[did] not disclose a sufficient basis to reach a conclusion regarding the particular significance’ of the sites referred to by Mr Papertalk (West Peak Iron at [56]). With respect to Tallering Peak, the Tribunal observed that the site is outside the exploration licence and there was no evidence that the grantee party’s activities would interfere with the site (West Peak Iron at [54]). In relation to s 237(c), the Tribunal concluded that there was ‘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’ (West Peak Iron at [62]).

2. Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126 (‘State Resources 1’) concerned an exploration licence located approximately 17 kilometres west of the proposed licence and situated a few kilometres north of the Murchison River.  The native title party’s evidence took the form of another affidavit made by Mr Papertalk.  Mr Papertalk again referred to the native title party’s hunting weekends and the ‘river hunting route’, though in this case he appeared to be referring to the Murchison River rather than the Greenough River.  Mr Papertalk also referred to many of the same activities he had mentioned in his evidence in West Peak Iron, though he added that members of the native title party collect quartz from the area to make stone tools.  Similarly, Mr Papertalk stated that waterholes along the Murchison River and in the tenement area are inhabited by the snake spirit Bembara, and that the spirits of the deceased are believed to travel along the river and connecting water bodies on their way back to the land.  Mr Papertalk also referred to the existence of ceremonial sites within the tenement area, though he did not describe them in any detail. 

3. The Tribunal accepted that the activities described by Mr Papertalk are carried on within the tenement area.  However, the Tribunal considered that it was unclear how frequently members of the native title party carried on those activities within the exploration licence, as opposed to other places in the claim area (State Resources 1 at [40]). The Tribunal found that, in light of Mr Papertalk’s evidence in West Peak Iron about the native title party’s ‘hunting weekends’ and the distance between the two tenements, the evidence provided ‘little guidance as to the extent to which members of the native title party access the proposed licence area to carry on those activities’ (State Resources 1 at [39]). Consequently, the Tribunal again concluded that Mr Papertalk’s evidence was too general and unspecific to support a finding that the grant of the exploration licence would interfere with the native title party’s community or social activities in a substantial or more than trivial way (State Resources 1 at [40]).

4. In relation to Mr Papertalk’s evidence about sites of particular significance, the Tribunal found that Mr Papertalk’s evidence did not disclose a sufficient basis for concluding that there were any sites or areas of particular significance within the tenement area, or that interference was likely.  The Tribunal observed that, though the native title party’s contentions mentioned two sites as being of particular significance (namely Coolaraburloo Pool and a waterhole near Gnamma Well) Mr Papertalk did not refer to them as significant sites.  In conclusion, the Tribunal was not satisfied that the evidence showed that Coolaraburloo Pool or the Gnamma Well site stood out from the other waterholes and creeks in the tenement area and the broader claim area.  In this respect, the Tribunal noted Mr Papertalk’s evidence in West Peak Iron about the significance of waterholes along Bangemall Creek (State Resources 1 at [54]). In relation to the issue of major disturbance, the Tribunal concluded that there was no firm evidence of any sensitive topographical, geological or environmental factors (State Resources 1 at [62]).

5. Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126 (‘State Resources 2’) concerned an exploration licence approximately 25 kilometres east of the proposed licence.  The tenement in this case was situated about 10 kilometres east of the Murchison River.  In support of its objection, the native title party relied on another affidavit made by Mr Papertalk in similar terms to those made in West Peak Iron and State Resources 1. 

6. Mr Papertalk’s evidence in relation to s 237(a) again focused on the native title party’s hunting weekends and other activities carried on by the native title party, such as collecting emu eggs and quartz. In relation to sites of particular significance, Mr Papertalk deposed once again to the snake spirit that is said to inhabit the waterholes and springs in and around the tenement area. Mr Papertalk referred in particular to Mt Aubrey Spring, which he described as ‘a very significant place ... because of its connection to our dreamtime and our ancestors who lived there.’ Mr Papertalk also repeated the evidence he gave in State Resources 1 concerning the role of the Murchison River and other creeks and watercourses as the means by which the spirits of the deceased return to the land.      

7. The Tribunal accepted that the activities described by Mr Papertalk were carried on in the tenement area. The Tribunal also accepted that these activities were more likely to be carried on in the tenement area than in other parts of the claim given the use of Mt Aubrey as a regular camping site. Nevertheless, due to the extent of pastoral activity in the area, the Tribunal concluded that the grant of the exploration licence was unlikely to interfere with these activities to a significant degree. The Tribunal also had regard to the fact that evidence in previous matters suggested that the activities associated with the hunting weekends were carried on elsewhere in the claim area. In relation to s 237(b), the Tribunal found that the native title party had failed to identify any basis for the particular significance of Mt Aubrey other than its association with Bembara, which it appeared to share with other waterholes and creeks in the proposed licence and other areas along the Murchison River (State Resources 2 at [49]). Taking into account all the relevant evidence in relation to s 237(c), the Tribunal found that the grant of the exploration licence was not likely to result in major disturbance to land or waters.

Interference with community or social activities – s 237(a)

1. The Tribunal is required to make a predictive assessment as to 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 at [23] (‘Smith’).  The notion of 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: Smith at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].

2. The native title party states that its members regularly conduct activities such as hunting, gathering, fishing and camping along the Murchison River, including within the proposed licence (NTP Contentions, paragraph 9).  Specifically, the native title party states that its members ‘usually hunt along the Murchison River through Yallalong and across the proposed licence, or alternatively along back tracks across Meebree Hill and up through the proposed licence’ (NTP Contentions, paragraph 11).  The native title party also states that its members:

   ·fish for Wadbi (a species of freshwater fish) along the Murchison River and connecting water bodies, including within the proposed licence (NTP Contentions, paragraph 12);

   ·hunt for emu eggs along the Murchison River, the shells of which they subsequently trade (NTP Contentions, paragraph 14); and

   ·collect bush medicines, witjuti grubs and bimba tree sap from the proposed licence and area surrounding (NTP Contentions, paragraph 15).

3. According to the native title party, the proposed licence is regularly used as a camping ground ‘due to its close vicinity to fresh water sources and major travel routes’ (NTP Contentions, paragraph 16).  In this regard, the native title party also states that its members continue to use the proposed licence and surrounding areas as a major travel route to various law grounds situated in Yallalong (NTP Contentions, paragraph 17).     

4. The native title party has not provided any evidence that its members regularly travel through the proposed licence using the route through Meebree Hill.  However, having regard to the Tribunal’s findings in previous matters, I accept that the native title party carries on a range of community and social activities along the Murchison River and in adjacent areas.  To the extent that the Murchison River intersects the north-eastern boundary of the proposed licence, it seems likely that members of the native title party would carry on these activities from time to time within the proposed licence.  However, in the absence of evidence to that effect, I am unable to find that the grant of the proposed licence is likely to interfere with these activities in a substantial or more than trivial manner.  Furthermore, the evidence that does exist suggests that the activities described by the native title party are carried on over a much larger area (see in particular West Peak Iron at [40]; State Resources 1 at [39]; State Resources 2 at [34]). Given the comparatively small scale of the exploration programme described by Mr Kennedy, I do not accept that the grantee party’s activities will interfere with these activities to a significant degree. Nor do I consider that the activities proposed by the grantee party would in any way restrict the native title party’s access to the proposed licence or obstruct the route along the Murchison River. In reaching this conclusion, I have also had regard to the fact that the grantee party’s exploration programme will focus on the area between Piper Well to Bigarter Well, which is situated to the west of the river.

5. In addition to its other submissions, the native title party contends that the grantee party’s activities are likely to interfere with the balance of wildlife and food sources in and around the proposed licence, which it says will force its members to travel further and further out in order to hunt and gather food and resources (NTP Contentions, paragraph 18).  I have already touched on the fact that the evidence suggests that the native title party’s hunting activities are carried on over a much broader area.  In any case, it is difficult to see how the grantee party’s activities would have such an effect.  At the present stage, the grantee party only intends to use hand-held equipment.  Although the Kennedy Statement suggests that ground-disturbing work may be undertaken at some point in the future, there is no indication that the work will require heavy machinery or other intensive methods.  I am not prepared to speculate about the effect that possible ground-disturbing work might have on the balance of wildlife and food sources in the proposed licence area, particularly in circumstances where the native title party has not provided any evidence to support its contentions.

6. Taking into account the available evidence, I find that there is no real risk or chance that the proposed licence will directly interfere with the native title party’s community or social activities.

Interference with sites or areas of particular significance – s 237(b)

1. In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with its traditions. As stated above at [15], the Aboriginal Heritage Database shows that there are no sites registered under the AHA or ‘other heritage places’ within the proposed licence. However, the fact that no sites have been recorded does not mean there are no sites or areas of particular significance to the native title party within the proposed licence or the surrounding areas. 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 AHA protects all Aboriginal sites, whether on the Register or not.

2. The native title party states that the proposed licence is situated directly over the Murchison River and various connecting watercourses, and is in close proximity to numerous waterholes located along the Murchison River (NTP Contentions, paragraph 19).  The native title party says that these sites have ‘great mythological significance’ and are central to its dreamtime stories, which ‘depict the Murchison River as a man-like spirit snake named Bembara’ (NTP Contentions, paragraphs 19-20).  The native title party contends that, if the waterholes, springs and rockholes that house the Bembara are disturbed, the ‘descendants of these spirits’ will experience misfortune, ill health and possibly death (NTP Contentions, paragraph 21).  The native title party also describes the belief of its members that the spirits of the deceased travel into the Murchison River and the surrounding water bodies before returning to the land.  On this basis, the native title party suggests that ‘it is of vital importance to the native title party that these sacred sites are not disturbed or damaged’ (NTP Contentions, paragraph 21).  Furthermore, the native title party contends that, due to the proximity of the proposed licence to the Murchison River and major travel routes, it is ‘highly likely’ that undiscovered artefacts were left behind by ancestors who camped in the area, particularly along the river banks.  The native title party submits that its members have a duty to care for and protect these sites (NTP Contentions, paragraph 23).

3. To my mind, there is nothing to distinguish this matter from previous occasions on which the Tribunal was asked to consider the significance of the Murchison River and others bodies of water in the claim area.  In those matters, the Tribunal found that the evidence did not disclose a sufficient basis for concluding that the sites were of particular significance to the native title party.  In particular, the Tribunal noted that the evidence did not demonstrate that the sites identified by the native title party stood out in any way from the other bodies of water in the claim area.  To the extent that the native title party’s contentions are made on that basis, I adopt those findings.  I acknowledge the significance of the Murchison River to the native title party.  However, the evidence before me does not indicate that the river or any of the connecting waterholes, creeks or springs can be characterised as sites or areas of particular significance. 

4. Insofar as the native title party’s contentions concern undiscovered artefacts, I accept the possibility that there are places within the proposed licence area where objects of that kind might be found.  However, in the absence of evidence to that effect, I cannot find that these places constitute sites or areas of particular significance.  In any case, given the character of the proposed exploration programme, it is unlikely these sites will be disturbed.  If the grantee party does decide to undertake ground-disturbing activities, it has undertaken to carry out a heritage survey in accordance with the terms of an acceptable heritage agreement, in which case it is likely that any archaeological sites will be identified.  In that event, I am satisfied that the grantee party will comply with its obligations under the AHA and take steps to avoid interference with significant sites.  In that respect, I do not accept the native title party’s contentions regarding the effectiveness of the AHA (see NTP Contentions, paragraph 26).       

5. Haven taken these considerations into account, I find that the grant of the proposed licence is unlikely to interfere with sites or areas of particular significance to the native title party.

Major disturbance to land or 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 grant of the proposed licence, and the subsequent exercise of rights under the proposed licence, is likely to involve a major disturbance to the land and waters on and around the proposed licence.  In this regard, the native title party submits (at NTP Contentions, paragraph 27) that the Tribunal should give particular consideration to:

   ·the existence of unregistered sites within the proposed licence which are highly significant to the native title party’s tradition, customs and beliefs;

   ·the frequent access and use of the proposed licence and surrounding areas as travel and hunting grounds by the native title party members; and

   ·the frequent carrying out of social and community activities by the native title party within the proposed licence (such as hunting, gathering, fishing and camping).

3. The Government party contends (at GVP Reply, paragraph 67) that the proposed licence is not likely to involve, or create rights the exercise of which is likely to involve, major disturbance for the following reasons:

   ·The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive;

   ·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 may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration;

   ·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and is largely covered by historic and pastoral leases; and

   ·It does not appear that the area has any particular characteristics that would be likely to result in ‘major disturbance’ to land or waters arising given the activities being proposed by the grantee party.

1. The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters.  In most cases, the Tribunal has held that the grant of prospecting and exploration licences do not involve major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia (2005) 190 FLR 362 at [74]-[79] and the cases cited).

2. The Tribunal is entitled to consider how the proposed physical disturbance will impact on the customs and traditions of the native title party for the purpose of assessing the likelihood that the disturbance will be of the kind contemplated by s 237(c): Rosas v Northern Territory (2002) 169 FLR 330 (‘Rosas’) at [84]. However, the evidence must be directed to the issue of major disturbance and not simply repeat contentions made in relation to ss 237(a) and 237(b): Rosas at [85]. In the present matter, the native title party has not explained how the activities proposed by the grantee party would constitute a major disturbance to the land or waters within the proposed licence. The native title party has not provided any evidence in this regard. Although I acknowledge that members of the native title party probably access the proposed licence from time to time for the purpose of carrying on various community or social activities, there is no evidence that these activities are carried on to an extent that would justify the conclusion that the limited activities proposed by the grantee party would involve a major disturbance to the land or waters.

3. In determining whether the proposed licence is likely to involve major disturbance, I have had regard to the following factors:        

   ·The proposed licence area is entirely covered by an existing pastoral lease  and two historical leases, and it is evident from the photographs provided by Mr Kennedy that disturbance has already and will continue to occur;    

   ·Part of the area has previously been subject to an exploration licence;

   ·The proposed conditions of grant impose requirements for rehabilitation and require the approval of the Environmental Officer of the Department of Mines and Petroleum before mechanised equipment may be used;

   ·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 evidence of any sensitive topographical, geological or environmental factors which might lead people to think that activities proposed by the grantee party would result in major disturbance; and

   ·There is no evidence that the grantee party will not comply with the regulatory regime.

4. In conclusion, I find that the grant of the proposed licence is unlikely to involve, or create rights the exercise of which will involve, major disturbance to land or waters.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E70/4276 to Douglas Eric Kennedy and Leonard Geoffrey Haworth is an act attracting the expedited procedure.

Daniel O’Dea
Member
3 April 2013