Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/ Commodite Resources Pty Ltd
[2012] NNTTA 137
•13 December 2012
NATIONAL NATIVE TITLE TRIBUNAL
Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/ Commodite Resources Pty Ltd, [2012] NNTTA 137 (13 December 2012)
Application Nos: WO12/191, 192 & 193
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga – (WC97/43) (native title party)
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The State of Western Australia (Government party)
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Commodite Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 13 December 2012
Catchwords: Native title – future acts – proposed grant of 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– expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 39, 146, 148(b), 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 111
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases: Butcher Cherel and Others/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
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/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia 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
Representative of the Ms Julie Walker, Gobawarrah Minduarra Yinhawanga Aboriginal
native title party: Corporation
Representatives of the Ms Rosie Phillips, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Ms Diya Sequeira, Tenement Administration Services Pty Ltd
grantee party: Mr Enrico Geronzi, Tenement Administration Services Pty Ltd
REASONS FOR DETERMINATION
On 11 January 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E08/2342, E08/2343 and E08/2345 (‘the proposed licences’) to Commodite Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are situated in the Shire of Ashburton and the Shire of Upper Gascoyne. Their sizes and locations are as follows:
E08/2342 is 144.12 square kilometres in size and located 80 kilometres southwest of Paraburdoo. The native title claim of the Gobawarrah Minduarra Yinhawanga (WC97/43 - registered from 29 October 1999) wholly overlaps the proposed licence.
E08/2343 is 213.07 square kilometres in size and located 88 kilometres southwest of Paraburdoo. The native title claim of the Gobawarrah Minduarra Yinhawanga (WC97/43 - registered from 29 October 1999) overlaps the proposed licence by 79.91 per cent.
E08/2345 is 184.95 square kilometres in size and located 92 kilometres southwest of Paraburdoo. The native title claim of the Gobawarrah Minduarra Yinhawanga (WC97/43 - registered from 29 October 1999) overlaps the proposed licence by 4.07 per cent.
On 14 February 2012, an expedited procedure objection application was lodged with the Tribunal in respect of the proposed licences by Limpet Giggles and others on behalf of Gobawarrah Minduarra Yinhawanga native title claim group (‘the native title party’ or ‘GMY’).
The proposed licences also wholly overlap the native title claim of the Jurruru People (WC00/8 – registered from 1 March 2001). No expedited procedure objection application has been lodged by the Jurruru People.
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. Directions set on 21 May 2012 allowed for State compliance up to and including 3 September 2012, with other parties’ compliance to follow.
At the first Status Conference on 11 July 2012, the grantee party advised that it wished to proceed to inquiry and the State requested that compliance dates be brought forward in response. Accordingly, directions were amended on 20 July 2012 and allowed for the State’s compliance up to and including 20 August 2012, with other parties’ compliance to follow.
The Department of Mines and Petroleum (DMP) provided the State’s evidence on 20 August 2012.
The native title party did not comply with its direction date of 27 August 2012 and on 12 September 2012, the Government party requested the matter be dismissed under s 148(b) of the Act. This request was supported by the grantee party. The Tribunal gave the native title party until 14 September 2012 to respond. On 12 September 2012, the native title party representative provided a response which indicated, among other things, that: the lack of compliance was not intentional; the claim group was currently not legally represented; and the native title party was obtaining some legal support to assist it to adhere to procedure. In a further email dated 13 September 2012, the native title party advised that they believed it would only take a further 5 days for them to comply with the directions. On 14 September 2012 the President decided not to dismiss the application and set further compliance dates for an inquiry.
The native title party compliance date set by the President was 24 September 2012, with other parties to follow. On 24 September 2012, the native title party provided its contentions to the Tribunal.
On 26 September 2012, the State requested an extension of compliance dates for it to provide contentions by the State Solicitor’s Office due to heavier than normal workloads. On 8 October 2012, the President set the compliance date of 16 October 2012 for the grantee party and 23 October 2012 for the State.
The grantee party provided contentions to the Tribunal on 16 October 2012 and the State provided contentions on 22 October 2012.
On 16 November 2012, I was appointed by the President of the Tribunal as the Member to conduct the inquiry in this matter.
The inquiry proceeded 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 provided by the Government party
The Government party has provided: a statement of contentions; tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement applications; copies of the proposed endorsements and conditions of grants and a tengraph quick appraisal for each tenement.
E08/2342
Government party documentation establishes the underlying land tenure of E08/2342 includes:
· Vacant Crown Land (at 64.2 per cent);
· A pastoral lease 3114/1241 (Pingandy) (at 18.8 per cent); and
· A pastoral lease 3114/773 (Dooley Downs) (at 17 per cent).
· PA67 Exploration permit application (at 100 per cent).
Documentation establishes that E08/2342 has previously been overlapped by 15 exploration licences, granted between 1987 and 2006 (with between 100 per cent overlap and 0.3 per cent overlap), and all now surrendered or withdrawn. There are no live tenements which overlap E80/2342.
E08/2343
Government party documentation establishes the underlying land tenure of E08/2343 includes:
· CALM[1] purchased former pastoral lease CPL/34 (at 16.8 per cent);
· Vacant Crown Land (at 55.6 per cent)
· Vacant Crown Land (at 16.8 per cent) and
· A pastoral lease 3114/773 (Dooley Downs) (at 27.6 per cent).
· PA67 Exploration permit application (at 100 per cent).
[1] The former Department of Conservation and Land Management
Documentation establishes that E08/2343 has previously been overlapped by 15 exploration licences, granted between 1987 and 2006 (with between 100 per cent overlap and 0.3 per cent overlap), and all now surrendered or withdrawn. There are no live tenements which overlap E80/2343.
E08/2345
Government party documentation establishes the underlying land tenure of E08/2345 to be as follows:
· CALM purchased former pastoral lease CPL/34 (at 95.9 per cent);
· Vacant Crown Land (at 4.1 per cent); and
· Vacant Crown Land (at 95.9 per cent).
· PA67 Exploration permit application (at 100 per cent).
Documentation establishes that E08/2345 has previously been overlapped by 7 exploration licences, granted between 1987 and 2006 (with between 100 per cent overlap and 5.1 per cent overlap), and all now surrendered or withdrawn. There are no live tenements which overlap E80/2345.
Other Information
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:
· is one DIA registered site within E08/2342, namely the Pingandy[2] Station engraving site (ID 8999 – engraving, open access, no restrictions), and no ‘other heritage places’ recorded; and
· that there are no DIA registered sites within E08/2343 and E08/2345, and no ‘other heritage places’ recorded.
[2] Note that in native title party submissions, the word ‘Pingandy’ is referred to as ‘Pingandee’
Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licences, and confirms there is one DIA registered site (ID 8999) within E08/2342.
A draft tenement Endorsement and Conditions Extract for the proposed licences included in the Government party documentation indicates that the grant of each of the proposed licences 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 on E08/2342 require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6).
Additional conditions to be imposed on E08/2343 require that:
any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5 and 6);
in relation to CPL/34, the grantee seek approval from DMP for any ground disturbing work, rehabilitate the area to DMP’s satisfaction and arrange an inspection of the area prior to cessation of any activity (Conditions 7 to 9). As stated at [23], CPL/34 takes up 16.8 per cent of this proposed licence.
Additional conditions to be imposed on E08/2345 require that in relation to CPL/34, the grantee seek approval from DMP for any ground disturbing activity, rehabilitate the area to DMP’s satisfaction and arrange an inspection of the area prior to cessation of any activity (Conditions 5 to 7). As stated at [25] CPL/34 takes up nearly the entire area of this proposed licence.
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 each of the proposed licences:
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 native title party provided submissions in this matter on 24 September 2012. The submissions provided minimal specific information regarding the social or community activities of the native title party on the proposed licences, nor was much specific information provided about sites of particular significance on the proposed licences or relating to disturbance to land and waters in the areas of the proposed licences. The submissions raised issues regarding s 39 of the Act which were not relevant to this inquiry.
Submissions (at paragraph 10) stated that a full ‘...connection report covering the tenement areas has been submitted to the State, the NNTT and the Federal Court covering and including the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area...’. By this I believe the native title party is referring to the connection report submitted in the native title party’s Federal Court native title claim. The connection report referred to by the native title party, or relevant parts of it, were not provided with the submissions in this matter.
The submissions refer to areas or sites of significance, as well as having some reference to community and social activities, as for example the following:
The importance of the area ‘in the tenement area near Ford and Pingandee Creek ((Tenement E08/2342/E08/2343)’ (emphasis in original).
I note that Fords Creek [as it is referred to in Tribunal mapping] runs through E08/2342 in a north/south direction, in the east portion of that proposed licence, and also runs near or through the DIA site 8999. Pingandy Creek [as it is referred to in Tribunal mapping], however, appears to be approximately 20 kilometres or more to the south east of the proposed licences.
An ancestor dying at Top Camp, which is stated to be located in the E08/2342 area, and is also referred to as a station.
However, there is no specificity of the location of Top Camp that would enable me to determine where in E08/2342 it may be located, and in the materials provided I cannot locate any station in that proposed licence named Top Camp, and no link is made between the name ‘Top Camp’ and the stations which are marked on Tribunal mapping and DMP submissions (namely, Pingandy and Dooley Downs Stations).
There are traditional songs which connect the native title party’s genealogies to the land from the Nymaili Range through to Top Camp, and this is stated to be in the areas of E08/2342 and E08/2343, as well as a song from Mt Elephant Wooldamunda (this is located across the Ashburton river near Jubagoodu) towards Pingandee and Top Camp Marribah...’ (emphasis in original).
Once again, attention was not drawn to exactly where the Nymaili Range or Jubagoodu is located, although I do note the Ashburton River is approximately 20-30 kilometres to the east of the proposed licences.
Camping as teenagers at Pingandee Creek which is stated to be the traditional country of Woodchopper Frank Claver and being told that this was his country. The native title party suggests this is in the area of E08/2342.
As noted above, Pingandy Creek appears to be approximately 20 kilometres or more to the south east of the proposed licences
At paragraph 12, the native title party summarises there are sites or areas of particular significance to the native title party on or adjacent to E08/2342 and E08/2343 which are; birth and burial places; places of historical significance; places of traditional ceremony and place names; and places of traditional songs and genealogical connection.
Unfortunately, the native title party did not provide any affidavits, signed statements or other evidence (such as maps, reports etc) to support the claims made in their submissions. Such evidence would assist me to verify the location or significance of the areas and sites mentioned, and the social and community activities associated with the described songlines, as relevant to the proposed licence areas.
The submissions did not appear to specifically address the effect of s 237(c) on E08/2342 and E08/2343.
There were no contentions or evidence submitted which specifically addressed the application of s 237(a), (b) and (c) to E08/2345.
Grantee Party Evidence
The grantee party complied with directions and submitted contentions on 16 October 2012.
The grantee party advises that they are negotiating an alternative heritage agreement with the Jurruru claimant group, whose claim wholly encompasses the proposed licences.
The grantee party states:
·it has conducted a site search of the DIA site register on 6 March 2012 ‘...and found 1 registered site on E08/2342, none on E08/2343 and none on E08/2345.’ (at 3);
·it is cognisant of ‘its obligations under the Aboriginal Heritage Act 1972’ and, ‘in particular, its obligations not to disturb aboriginal sites or objects’ (at 1);
·it has offered and is continuing to negotiate the terms of a heritage agreement with the Jurruru people over the proposed licences;
·it has, or will prior to commencing any ground disturbing work:
a. provide for heritage surveys prior to carrying out work on the proposed licences that might affect Aboriginal sites or objects; and
b. facilitate and fund surveys to identify Aboriginal sites and objects (at 2);
·the initial work to be carried out on the proposed licences (at 5) will be undertaken without accessing the proposed licences or will be of a very low impact nature, including:
a. a literature search
b. analysis of previously publicly available data
c. public aerial photography
d. land satellite imagery
e. aeromagnetic data and digital elevation model data sets
f. geological field mapping and reconnaissance and
g. first pass rockchip and soil sampling
·depending upon the results of the initial work, any further exploration activities will be limited by the Mining Act 1978, and will be short term and of low impact (at 7);
·any further exploration activities will be progressively and promptly rehabilitated (at 7);
·in the event of the identification of any significant Aboriginal sites within the proposed licences, the grantee party will implement procedures for staff and contractors to make them aware of the location and importance of any significant sites, so as to ensure minimal disturbance and the preservation of such sites (at 13);
·it remains open to discussions with the native title party about ensuring the identification and protection of any sites that it might believe exist within the proposed licences (at 17 and 18); and
·it will endeavour to find a way in which all native title claim groups can be accommodated in carrying out surveys, and will continue to inform the native title party of its position and engage positively towards resolving the situation (at 19).
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 into account 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]).
In this matter, the native title party has provided only the very broadest information about community and social activities, which either focuses on the claim as a whole, or is difficult to attribute to specific areas of the proposed licences.
There is also a lack of evidence to support the contentions provided by the native title party. For example, there are no signed statements or affidavits from members of the native title party in support of the contentions.
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]).
In addition, 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 provided some detail in relation to its intentions (as outlined at [43] above), and I am confident that, based on this information, the grantee party will comply with the regulatory regime.
Without specific evidence or information from the native title party as to the nature and extent of the community and social activities of the native title party on the proposed licences, and taking into account the evidence and information available from other parties, 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 is one Registered Site within E08/2342 and there are no Registered Sites or ‘other heritage places’ within E08/2343 or E08/2345. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the areas of the proposed licences 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 has provided general information in relation to sites of significance, or sites of particular significance, which may exist on the areas of the proposed licences, and no evidence has been provided to support the claims made within the native title party’s submissions.
In response, the grantee party confirms (within their submission ‘background’ section and at paragraph 1) that it intends to comply with the Aboriginal Heritage Act 1972, and outlines its proposed activities.
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 [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 submissions that there is a likelihood of sites of significance to the native title party existing within E08/2342 and E08/2343. However, there is no evidence before me to disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or that there will be a likelihood of interference on these proposed licences. In addition, the native title party has made no specific reference to the existence of any sites within E08/2345.
Tribunal mapping shows one DIA registered site on E08/2342 (site 8999) and no sites on the other two licences. There are four registered sites within 5-10 kilometres outside the northern boundary of E08/2345, and a great many sites approximately 60 kilometres north east of these three proposed licences. There are also some sites to the south of the proposed licences. These sites do not appear to be specifically referred to or identified in the native title party contentions.
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 the facts of a particular case and the nature and extent of any sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
In this matter, there is insufficient evidence for me to conclude there are sites of particular significance for the purposes of s 237(b) of the Act, and I am satisfied that the AHA and its associated processes, as well as the endorsements and conditions to be placed on the proposed tenement, are likely to prevent interference with any area or site of particular significance.
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 dealing with s 237(c) of the Act are difficult to discern specifically from the submissions provided. The native title party does not appear to have made any particular submissions in regard to the effect of the grant of the proposed licences in relation to s 237(c).
DMP documentation, specifically the ‘services affected’ section of the quick appraisal documents, show there are a number of major and minor watercourses on each of the proposed licences, and some of these are named – for example: Fords Creek (E08/2342); Wandarry Creek, Blue Bar Creek (E08/2343); and Wandarry Creek (E08/2345). However, there is no evidence presented of any sensitive topographical, geological or environmental factors on the proposed licences which would lead the community 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 that major disturbance to land and waters in the context of s 237(c) of the Act is likely to occur as a result of the grant of the proposed licences.
Determination
The determination of the Tribunal is that the acts, namely the grant of exploration licences E08/2342, E08/2343 and E08/2345 to Commodite Resources Pty Ltd, are acts attracting the expedited procedure.
Helen Shurven
Member
13 December 2012
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