Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Mines Services & Construction Pty Ltd
[2013] NNTTA 63
•7 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
Limpet Giggles & Ors on behalf of Gobawarrah Minduarra Yinhawanga/Western Australia/Mines Services & Construction Pty Ltd [2013] NNTTA 63 (7 June 2013)
Application No: WO2012/0156
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
Limpet Giggles, Nancy Tommy, Gladys Walker, Eric Galby, Arthur Flatfoot and Roy Tommy on behalf of Gobawarrah Minduarra Yinhawanga (WC1997/043) (native title party)
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The State of Western Australia (Government party)
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Mines Services & Construction Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 7 June 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to 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)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
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 FLR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Brockman Iron Pty Ltd [2010] NNTTA 106
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holding Pty Ltd [2010] NNTTA 41
WF (deceased) and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representative of the Ms Julie Walker, Gobawarrah Minduarra Yinhawanga Group
native title party: Aboriginal Corporation
Representatives of the Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Greg Abbott, M&M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
On 30 November 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2300 (‘the proposed licence’) to Mines Services & Construction Pty Ltd (‘the grantee party’). The notice includes a statement that the Government party considers 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).
The notice describes the proposed licence as comprising an area of nine graticular blocks (approximately 28.3 square kilometres) located 48 kilometres south of Paraburdoo in the Shire of Ashburton. The proposed licence area is subject in its entirety to the Gobawarrah Minduarra Yinhawanga native title claim (WC1997/043 – registered from 29 October 1999).
On 14 February 2012, Limpet Giggles, Nancy Tommy, Gladys Walker, Eric Galby, Arthur Flatfoot and Roy Tommy on behalf of Gobawarrah Minduarra Yinhawanga (‘the native title party’) made an expedited procedure objection application with the Tribunal in respect of the proposed license (designated by the Tribunal as WO2012/0156).
In accordance with what was then standard practice for expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the proposed licence attracts the expedited procedure. These directions allowed a four month period after the closing date for the lodgement of objections (in this case, 1 April 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. In the present matter, the native title and grantee parties indicated that they wished to pursue a negotiated outcome. However, the parties were unable to reach agreement, and on 21 February 2013 the Tribunal programmed the matter for inquiry.
The inquiry
The directions set down on 21 February 2013 required, among other things, that:
(1)the Government party provide by 18 March 2013 any evidence or documents relevant to the inquiry, including:
(a)a topographical map or maps of an appropriate scale marked with:
i.the areas of the licence/s and the location of registered sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’); and
ii.boundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure;
(b)the details of any Aboriginal community within and in the vicinity of the of the licence/s;
(c)the details of the registered sites under the AHA;
(d)Mining Tenement documents; including
i.copies of the application for the licence/s;
ii.copies of the proposed Schedule of Endorsements and Schedules of Conditions;
iii.details of any current mining tenement on or overlapping the licence area and whether it was subject to the right to negotiate provisions of the Act; and
iv.available details of prior mining tenements granted on or overlapping the same area including the date of the grant and the date of expiry.
(2)the native title party provide by 25 March 2013:
(a)a statement of contentions, including
i.a statement of 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; and
ii.a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement;
(b)a copy of each document relevant to the inquiry (including any affidavit to be relied on;
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposed that the evidence be heard if the matter is not to be heard on the papers;
(3)the grantee party provide by 2 April 2013:
(a)a statement of contentions;
(b)A copy of each document relevant to the inquiry; and
(c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers; and
(4)the Government party provide a statement of contentions by 9 April 2013.
On 20 March 2013, Ms Julie Walker, who is the chairperson of the Gobawarrah Minduarra Yinhawanga Group Aboriginal Corporation and has represented the native title party throughout the inquiry, wrote to the Tribunal by email requesting an extension of time in which to provide the native title party’s submissions. In support of the request, Ms Walker cited the need to investigate whether a site identified in the Government party’s documents (Japagoora Pool) is in fact the site where members of her family are buried, also referred to as Jubagoodu. Though I acknowledged that further mapping may have been required, as the native title party was made aware on 21 February that the Tribunal would not allow any further extension and Ms Walker’s request was only made five days before the compliance date, I denied the request. In any event, it is apparent from the email received from Ms Walker on 2 April and discussed below that the native title party was nevertheless able to confirm the location of the site.
The Government party provided its supporting documents on 18 March 2013 (‘GVP Documents’), and the grantee party’s contentions and supporting documents were provided on 2 April 2013 (‘GP Contentions’). The native title party did not provide a statement of contentions by the compliance date. However, shortly after receiving the grantee party’s submissions were received by the Tribunal, the Tribunal was copied into an email from Ms Walker dated 2 April and addressed to the grantee party’s representative, Mr Greg Abbott (‘NTP Email’). The email is drafted in the following terms:
Dear Greg,
Japagooda yard & Pool are the exact location to where my family are buried, nonetheless we accept the decision by NNTT not to allow NTP contentious [sic] to proceed for the reasons given. However, we note that the guarantee [sic] party contentious [sic] 5.2 & 5.3 that sites will be protected and the grantee party will notified [sic] the DIA Aboriginal Sites department. My mothers and younger sisters traditional burials were initially approved by the late pastoralist Mr Jack Harvey Minner station and subsequently approved by the State Minister. I am attaching a Phota image of my mums traditional grave site apart from her there is also a marked grave for my younger sister my paternal uncle Biligarda’s grave is marked but you will need our family involved to identify it and my great mother Kurdu Kurdu is also buried in the vicinity of my mother’s grave the flood shifted towards the gully and we was only able to locate the grinding stone on this note you will also need my family involved not to disturb the site. In the interim we will do our best to get the sites registered for future references.
Regards
Julie Walker
Attached to Ms Walker’s email is a photograph of her mother’s grave site.
On the same day, the Tribunal received an email from Mr Abbott in response to Ms Walker’s email (‘GP Email’). The email reads as follows:
Thank you Julie. As you will notice from the contentions of the Grantee Party there is not any intention to explore in the locality you have mentioned. He is only interested in the river bed for locating any sand that might be useful for construction. I will pass on your email to my client and I’m sure if you or your family take up the offer to accompany him on his exploration he will be glad to assist in every way.
Kind regards
Greg Abbott
As noted above, the Government party was due to provide a statement of contentions by 9 April 2013. However, the Government party’s contentions were not received by this date. On 18 April 2013, the Tribunal wrote to parties to inform them that the matter had been referred to me for decision. Later that day, Mr Clyde Lannan of the Department of Mines and Petroleum (‘DMP’) wrote to the Tribunal querying whether the native title party had provided any contentions or submissions, though it noted that email exchanges had taken place between representatives for the native title and grantee parties. In response, the Tribunal sent Mr Lannan by email a copy of Ms Walker’s email of 2 April, with the observation that I was still to decide whether to accept Ms Walker’s submissions given the date they were provided. Later on 18 April, Mr Lannan sent another email to the Tribunal, in which he stated that ‘[a]t no point did DMP understand or expect that the NNTT would accept the emails from Julie Walker as being native title compliance, especially as they were written more than [a] week after such compliance was due.’
As the native title party is not legally represented in this matter, I decided to accept the NTP Email in place of formal submissions, notwithstanding the fact the email was received after the date for compliance by the native title party. By the same token, I also intend take account of the GP Email. However, that is not to say that I have necessarily accorded those emails the same weight as I would evidence given by way of affidavit. Nevertheless, as the material is before the Tribunal, I am bound to consider it. As the Government party was under the belief that the native title party had not complied with the directions and therefore did not file its own statement of contentions, I granted leave to the Government party to provide contentions in response, which it did on 17 May 2013 (‘GVP Contentions’).
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and other material provided by the parties, and I am satisfied that the matter can be determined in this way. There is no evidence to suggest that a formal hearing would have assisted me to determine the issues arising from the application.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia (2002) 169 FLR 437, 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) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
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].
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.
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 is likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FLR 576, especially [41]-[57]).
Evidence in relation to the proposed acts
The Government party provided the following documents in relation to the proposed licence:
·Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licences;
·reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’);
·copies of the tenement applications and Draft Tenement Endorsements and Conditions Extracts;
·instruments of licence and first schedules listing land included and excluded from the grants; and
·Tengraph quick appraisals detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licences.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:
·Pastoral lease 3114/1193 (Mininer) at 79.1 per cent;
·Pastoral lease 3114/1218 (Ashburton Downs) at 20.7 per cent; and
·Road reserve at less than 0.1 per cent.[1]
[1] As the percentage of encroachment in Tengraph is expressed to one decimal place, I infer that the pastoral leases cover slightly more than 99.1 per cent of the proposed licence.
The quick appraisal also establishes that the area within the proposed licence has previously been subject to an exploration licence granted in 1989 and surrendered in 1990, which overlapped the area by 42.9 per cent, as well as two temporary reserves, one of which was granted in 1963 and surrendered the same year, and the other granted in 1971 and cancelled the following year (overlapping 100 per cent and 59.4 per cent respectively).
The report from the DAA Database indicates there are no sites registered under the AHA or ‘other heritage places’ within the proposed licence.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence 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 licence will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease of the grant or transfer of the licence and of certain activities carried out under the licence.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the 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.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3. The Licensee’s attention is drawn to the provisions of the:
· Water Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.
In respect to Waterways the following endorsement applies:
7. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal water.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
8. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by DoW.
9. All activities to be undertaken with minimal disturbance to riparian vegetation.
10. No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11. Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
12. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.
The Government party also intends to impose a condition requiring the grantee party to offer to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party at the native title party’s request. The condition is proposed in the following terms:
In respect of the area covered by the licence of the Licencee, if so requested in writing by Gobawarrah Minduarra Yinhawanga, the applicants in Federal Court application no. WAD6173 of 1998 (WC97/43), such request being sent by pre-paid post to reach the Licensee’s address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East, WA 6008, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of Gobawarrah Minduarra Yinhawanga the Regional Standard Heritage Agreement endorsed by peak industry groups and the Yamatji Marlpa Aboriginal Corporation.
Native title party contentions and evidence
The native title party’s submissions are confined to the NTP Email. I accept Ms Walker’s evidence on the basis that she is chairperson of the Gobawarrah Minduarra Yinhawanga Group Aboriginal Corporation and a member of the native title claim group.
Grantee party contentions and evidence
The grantee party’s contentions were provided on 2 April 2013, and were accompanied by a report from the DAA Database and a Tengraph quick appraisal. I have also taken account of the GP Email for the purpose of determining the grantee party’s intentions in the context of the predictive assessment required by s 237.
In its contentions, the grantee party states that it intends to explore the Ashburton River by quad bike over a period of two days to locate areas free of vegetation containing sand of suitable quality for construction purposes (GP Contentions, paragraphs 4.1, 4.2 and 4.4). The grantee party contends that the proposed exploration is ‘highly unlikely’ to restrict activities such as hunting and gathering. Specifically, the grantee party refers to the fact that the total area of the native title party’s claim is 3431.0447 square kilometres, whereas the proposed licence area is only 2823.61 hectares, being 0.82 per cent of the total claim area (GP Contentions, paragraphs 1.2 – 1.3).[2] Nevertheless, the grantee party states that it will notify traditional owners prior to carrying out exploration activity and will consult with traditional owners to minimise any disturbance (GP Contentions, paragraph 1.2).
[2] The Tribunal’s records indicated that the claim area is in fact 3423.0633 square kilometres. However, nothing turns on this issue.
The grantee party undertakes to comply with the AHA and report any Aboriginal sites identified as required (GP Contentions, paragraph 2.2). In this regard, the grantee party states that it has never been prosecuted in relation to breaches of the AHA (GP Contentions, paragraph 2.3). The grantee party has also invited traditional owners to nominate members of the claim group to accompany it on exploration expeditions, and has offered to provide quad bikes for that purpose (GP Contentions, paragraph 4.5; GP Email).
The grantee party states that it will restore land immediately following its exploration programme, and has undertaken to restore the land as close as possible to the condition it was in prior to the exploration (GP Contentions, paragraph 3.2).
Interference with community or social activities – s 237(a)
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].
The native title party has not provided any specific evidence of social or community activities carried on by native title holders on the proposed licence. While I can infer from Ms Walker’s evidence that members of the native title party visit the burial sites from time to time, and I am satisfied that this would constitute a social or community activity within the meaning of s 237(a), the NTP Email provides no indication of how often such visits occur or the number of people who tend to be involved. In the absence of those particulars, it is difficult to determine whether the proposed exploration programme is likely to interfere significantly with the social or community activities of the native title party (see WF (deceased) and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, [14]). In any event, considering the limited nature of the proposed exploration activities, it is unlikely that the grant will interfere with the ability of native title holders to visit the burial sites identified by Ms Walker in a substantial or more than trivial way.
To the extent that other social or community activities may be carried on by native title holders in the proposed licence, I am not satisfied that the grant of the proposed licence will interfere significantly with the conduct of those activities, particularly when the size of the proposed licence is compared with the entire claim area. In reaching this conclusion, I have also had regard to the fact that more than 99 per cent of the proposed licence area is almost entirely covered by pastoral leasehold, which will have already interfered to some extent with any social or community activities carried on by the native title party (Tarlpa at [122]). The grantee party has undertaken to notify, and consult with, traditional owners prior to carrying out its exploration programme, and I am satisfied that this will go some way towards reducing the likelihood of interference. In the circumstances, I am satisfied that the grant of the proposed licence is unlikely to result in interference of the kind referred to in s 237(a).
Interference with sites or areas of particular significance – s 237(b)
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 their traditions. As stated above at [21], the DAA Database shows that there are no registered sites or ‘other heritage places’ within the proposed licence; however, this does not mean there are no sites or areas of particular significance to the native title party with the proposed licence area or in the vicinity. The Register of Aboriginal Sites 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.
Ms Walker states that several members of her family are buried in the vicinity of Japagoora Yard and Japagoora Pool. According to Tribunal mapping, Japagoora Yard and Japagoora Pool are located in the eastern half of the proposed licence and are situated on either side of the Ashburton River. Ms Walker says that the burial sites are in the ‘exact location’ of Japagoora Pool and Japagoora Yard, though it is unclear whether this means that some of the sites are on the north side of the river (Japagoora Pool) whereas others are on the south side (Japagoora Yard) or whether the sites are in fact clustered around the same general area. The photograph provided with the NTP Email depicts the burial site of Ms Walker’s mother, which appears to be clearly marked. Ms Walker says that the burial site of her younger sister is also marked, as is the site of her paternal uncle’s burial, though she says that her family would need to be present to identify it. Ms Walker says that her great mother is also buried in the vicinity of her mother’s grave, but due to an apparent shift in the topographical features of the area, her family was only able to locate a grinding stone. Ms Walker says that her family would need to be involved in order to identify the site and prevent any disturbance.
The Tribunal has previously accepted that burial sites are places of cultural and spiritual significance to Aboriginal peoples and, where such sites have been identified, has generally found that they are sites of particular significance to the relevant native title holders (see Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Brockman Iron Pty Ltd [2010] NNTTA 106 at [35]). This may be so even where there is a lack of evidence regarding the site’s specific relationship with the culture and traditions of the native title party (see Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 at [43]). Though Ms Walker has not directly addressed the connection between the burial sites and the traditions of the native title party, I am prepared to infer from Ms Walker’s evidence that they are sites of particular significance to the native title holders, especially given her desire to have the sites properly identified before exploration activities are carried out in the area.
In light of that conclusion, the question becomes whether the site protection regime established under the AHA will be sufficient to ensure that interference with the burial sites is unlikely to occur. In answering this question, the matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). In this regard, the Government party argues that the grantee party is aware of the existence of the burial sites and understands its legal obligations in respect of them (GVP Contentions, paragraph 54(a)). The Government party also points to Mr Abbott’s statement in the GP Email that the grantee party does not intend to conduct exploration within Japagoora Yard or Japagoora Pool, and is only interested in exploring the river bed (GVP Contentions, paragraph 54(b)). While there is still a chance the burial sites may be interfered with incidentally (for example, by driving through the area in order to access the river), it is clear that the focus of the grantee party’s exploration programme is the river bed, and the grantee party is now on notice to avoid the areas identified by Ms Walker.
The Government party also refers to the invitation extended by the grantee party for traditional owners to accompany it on expeditions (GVP Contentions, paragraph 54(b)). Though I am doubtful that this invitation could be enforced by the native title party, it does give an indication of the grantee party’s attitude to heritage protection and its willingness to consult with the native title party prior to conducting its exploration programme. If the native title party wishes to obtain additional protections, it can require the grantee party to enter into an RSHA in accordance with the Government party’s proposed condition. In any case, I am satisfied that the grantee party will take adequate steps to avoid interference with the sites identified by Ms Walker.
Taking into account the material provided to the Tribunal in this matter, I find that the proposed licence is not likely to interfere with sites or areas of particular significance to the native title party.
Major disturbance to land or waters – s 237(c)
As the native title party has not made any submissions in relation to s 237(c), the only material before me are the contentions of the Government and grantee parties and the evidence provided in support of those contentions. On the basis of that material, I am unable to conclude that the grant of the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned. It is clear that the proposed method exploration will involve minimal disturbance to the land, and the conditions and endorsements proposed by the Government party will ensure that the grantee party is aware of its obligations under the relevant legislation and will be required to rehabilitate the area on completion of the exploration. There is no evidence that there are any special topographical, geological or environmental factors that might suggest that major disturbance to land or waters is likely to occur. Therefore, on the evidence before me, I am satisfied that the proposed licence is unlikely to result in disturbance of the kind referred to in s 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E08/2300 to Mines Services & Construction Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
7 June 2013
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