Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd

[2005] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, [2005] NNTTA 12 (19 March 2005)

Application Nos:      WO04/10 and WO04/44

IN THE MATTER of the Native Title Act 1993 (Cth)

-and-

IN THE MATTER of an inquiry into expedited procedure objection applications

Leonne Velickovic on behalf of Widji People (WC98/27) (WO04/10) (Widji native title party)

and

Linda Champion on behalf of the Central West Goldfields People – WC99/29 (WO04/44) (Central West Goldfields native title party)

- and -

The State of Western Australia (Government party)

- and -

Bullion Minerals Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President
Place:  Perth
Date:  19 March 2005

Catchwords:             Native title – future act – proposed grant of exploration licence –expedited procedure objection applications – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – act attracts the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 29, 109(3), 148(b), 151(2), 237

Aboriginal Heritage Act 1972 (WA) s 62

Cases:Cheinmora v StrikerResources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon CJ Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Representative of the

Widji native title party  Mr Jerome Frewen, Desert Management Pty Ltd

Representative of the

Central West Goldfields

native title party:            Ms Elizabeth Sambo

Representative of the

Government party:         Mr Clyde Lannan, Department of Industry & Resources

Representative of the
grantee party:                 Mr Shannon McMahon, McMahon Mining Title Services

REASONS FOR DETERMINATION

Background

1. On 25 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E15/821 (‘the proposed licence’) to Bullion Minerals Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, is a future act which can be done without the normal negotiations required by s 31 of the Act).

2. On 20 February 2004 Leonne Velickovic on behalf of the Widji People – Native Title Claim No. WC98/27 registered on 15 June 1998 - (‘the Widji native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act (WO04/10).

3. On 19 April 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People – Native Title Claim No. WC99/29 registered on 4 October 1999 - (‘the Central West Goldfields native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act (WO04/44).

4. The proposed licence comprises an area of 37.99 square kilometres, 14 kilometres south westerly of Widgiemooltha in the Shire of Coolgardie.  49.16% of the proposed licence is overlapped by the Widji native title claim and 22.92% is overlapped by that of the Central West Goldfields People.  The tenement is also overlapped 77.08% by the registered native title claims of the Ngadju People, who have not lodged an objection application.

Regional Standard Heritage Agreement (RSHA)

1. Since January 2004 it has been the Government party’s policy not to advertise exploration or prospecting tenements as attracting the expedited procedure unless the grantee party has demonstrated its commitment to consultation with native title claimants over heritage issues.  The Government party considers that this commitment is best demonstrated by a statutory declaration or affidavit that a Regional Standard Heritage Agreement (‘RSHA’) (being a standard region specific agreement negotiated by the Government party, relevant Native Title Representative Body (‘NTRB’) and industry) already exists, or has been signed by the grantee party and forwarded to an affected registered native title claimant group.  If a RSHA has not been negotiated or forwarded, then the Government party must be satisfied that an alternative heritage agreement exists.  The Government party’s policy in relation to RSHAs and Tribunal findings about their relevance in expedited procedure objection inquiries are explained in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [15]-[35] (‘Linda Champion’).

2. In the present matter the relevant RSHA is one negotiated with the Goldfields Land & Sea Council (‘GLSC’) the NTRB for the area.  The grantee party executed and provided to them a RSHA with the Ngadju native title party whose registered native title claim encompasses the majority of the area of the proposed licence area as detailed above.  In doing so it followed the Government party’s procedures in relation to the RSHA.  The RSHA has not been executed by either the Widji or Central West Goldfields native title parties and can only be considered relevant to them in the way set out in Linda Champion (at [29]-[35]). That is, as evidence of the grantee party’s general intentions regarding the protection of sites of significance.

Conduct of the inquiry

1. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties in both matters to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate or finalise agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. Directions were amended on 19 August 2004 at the request of the grantee party to bring the dates for compliance forward when it was clear that parties would not be able to reach agreement, and further amended at the request of the native title parties on 22 October 2004 (in the case of the Widji native title party) and 5 November 2004 (in the case of the both native title parties) to extend the dates for compliance. Further directions were set on 17 December 2004 permitting submissions on the relevance of the RSHA in expedited procedure inquiries in the light of the Tribunal’s then forthcoming determination in Linda Champion.  The Government and Widji native title parties have now complied fully with directions, and the Central West Goldfields native title party has submitted a statement of contentions but no supporting affidavit evidence.  The grantee party has chosen to rely on contentions submitted by the Government party.

2. It is within the power of the Tribunal to dismiss an objection application pursuant to s 148(b) of the Act where an objection applicant has failed to comply with a direction by the Tribunal. Directions in the standard form clearly state that not only a statement of contentions, but also ‘a copy of each document relevant to the Inquiry (including any affidavit to be relied on)’ should be provided. In the case of the Central West Goldfields native title party, it could be argued that it is technically non-compliant with these directions in that a statement of contentions alone has been provided. However, I have decided in this instance to proceed on the basis of those contentions and accept them as evidence having regard to s 109(3) of the Act which provides that the Tribunal is not bound by technicalities, legal terms or rules of evidence. The contentions have been signed by Ms Sambo, contain relevant information and no application to dismiss the objection application from the other parties has been made. The Tribunal has received no request for an on-country hearing by any party and I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act.

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 vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry. The Mining Act has recently been amended including in relation to exploration licences and are now likely to come into effect in April or May 2005 but do not apply to exploration licences applied for or granted prior to that date.  Whether these amendments will be relevant to future expedited procedure inquiries will need to be considered after the amendments come into effect.

Evidence in relation to the proposed act

1. Government party documentation reveals the area of land subject to the proposed licence to be:

   ·            Unallocated Crown land;

   ·            Crown Reserve 7039, vested in the Water and Rivers Commission; and

   ·            Road Reserves 9358 and 916.

2. There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within or in the immediate vicinity of the proposed licence.

3. Data sourced by the Tribunal, and reflecting the “Applied For” area, reveals that three active mining leases and two miscellaneous licences (one active, one pending) partially overlap the area of the proposed licence. Miscellaneous licence L15/245 (for haulage routes and infrastructure) was the subject of an objection application by the Widji native title party, but this objection was withdrawn following agreement on 11 September 2003. Prospecting licence P15/4594 abuts the subject area and also attracted a Widji objection application which was dismissed pursuant to s 148(b) of the Act on 22 October 2004. Exploration licence application E15/577, which substantially overlapped the proposed licence, attracted objections from the Wongatha and Nullabor People, these being finalised when the licence application was withdrawn in August 1999.

1. An extensive list of ‘dead’ tenements evidences a history of extensive exploration and mining on and around the subject area, with three exploration licences active during the period 1989-1998, and three mining leases active between 1988 and 2003.  Documentation lists a further 15 mineral claims with unknown dates of activity and two gold mining leases active between 1932 and 1940.

2. The grant of the proposed licence will be subject to the standard endorsements and conditions applicable to all exploration licences in Western Australia, and as previously set out in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner (‘Internickel’).  Three additional conditions particular to this proposed licence are set out hereunder:

   ‘5.  No interference with Geodetic Survey Station SSM – Boorabbin 4 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   6.   The rights of ingress to and egress from Miscellaneous Licences 15/216 and 15/245 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

   7.   The prior written consent of the Minister for State Development being obtained before commencing mining on Water Reserve 7039.’

3. These additional conditions apply in recognition of the overlapping Miscellaneous Licences, the presence of a Geodetic Survey Station, and the proposed licence’s geographic situation partly over a Water Reserve.  I note that conditions 5 and 7 impose some restrictions over exploration activity but regard them as of minor relevance as the area of land covered is only 62.25 hectares (1.8% of the total proposed licence area) for the Water Reserve and the Geodetic Survey Station comprises a structure approximately one square metre.

4. On 21 February 2005 the Government party advised that the following additional condition (‘the proposed condition’) will be imposed on the grant of the proposed licence in this matter:

   ‘The Licensee, if so requested in writing by the Ngadju People, the applicants in Federal Court application no. WAG6020 of 1998 (WC99/002), such request being sent by pre-paid post to reach the Licensee’s address (c/o Hetherington Exploration & Mining Title Services Pty Ltd, PO Box 8249, Perth Business Centre WA 6849) not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central Ngadgu People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’

5. At the Listing Hearing of 22 October 2004, Mr Shannon McMahon, representing the grantee party, stated that the grantee party was prepared to sign a RSHA with each affected native title party if he needs to.

Native title party evidence

1. The Central West Goldfields native title party has provided no affidavit evidence in support of its contentions.  The Widji native title party has provided affidavit evidence sworn by Mr Leonne Velickovic at Kalgoorlie on 4 January 2005.  The general information contained in paragraphs 1-8 and 13-18 of the affidavit is identical to that provided in relation to Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner, save for the proposed licence number, while paragraphs 9-12 appear to be specific to this matter and are set out hereunder:

Affidavit of Leonne Dale Velickovic:

‘…

9.   The ancestors of the present generation of Widji people worked, among other occupations, as assistants to the Woolley Brothers, who held the sandalwood concession for that area in the late years of the nineteenth century and early yeas of the twentieth century.  Their camps were at Ten Mile Rocks, Cave Hill,. Sunday Soak, Wanaway Well and Granite Rock, all of which are in the vicinity of E15/821;

10. It appears to me that Granite Rock and Sunday Soak may be within the lease.  Without a skilled map-reader in the group and without a field visit, it is difficult to be precise about the locations of known sites.  Also, with only poor quality maps supplied by the National Native Title Tribunal and Department of Industry and Resources, it is simply impossible to relate my traditional knowledge of the country there to the pieces of paper I have been given.  Because of the group’s long association with lands including the tenement, it have been my custom to visit Widgiemooltha, Granite Rock and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.  This I do on a regular basis, and as recently as early December this year, during a previous survey for Aboriginal sites conducted under the Widji Standard Heritage Agreement with another company.

11. I have taken young group members and other children regularly to the Widgiemooltha area for the purpose of instructing them on the procurement of traditional vegetable foods, fruits and bush medicines;

12. Granite Rocks are a site of extremely high cultural and historical significance to their people, in accordance with their traditions, as also is Sunday Soak and Wanaway Well.  There are other sacred and ceremonial sites in the vicinity of these named places, whose locations and stories are known only to relevant Aboriginal elders.

…’

1. Mr Velickovic is one of five persons named as part of the applicant and registered native title claimant for the native title claim of the Widji People. His evidence is uncontested and I accept it including his statement that he is one of two senior men of the Widji People, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.

Community or social activities (s 237(a))

1. For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. 

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act and conditions to be imposed for exploration licences detailed in Walley at [24]-[37] to contend that there is not likely to be direct interference with the carrying on of community and social activities (s 237(a)) by the native title party in relation to the area of land concerned.

3. In common with contentions submitted in recent inquiries (for example Linda Champion and Internickel) both native title parties contend that it has been the custom of the objectors to visit the relevant area and surrounds to hunt and gather traditional foods, bush medicines and material for the manufacture of traditional tools and implements, and to educate young group members in these practices.  They argue that exploration will lead to ‘large areas’ of traditional land being closed off and that there will be evacuation of wild game and destruction of vegetable food and fruits.  The Central West Goldfields native title party further contends that ‘what is known as an “increase site” for a particular bush fruit is located near to the tenement on the southeastern side’.  It is also apparent that the members of both native title parties are interconnected, with each submission naming common relatives.  Therefore I find it appropriate to assume that many of the submissions made by one native title party would be supported by the other.  However, with the exception of Mr Velickovic’s affidavit evidence that he has visited the area as recently as December 2004 during the conduct of a heritage survey with another mining company, assertions are of a general nature, with no evidence provided as to the current frequency of these hunting, gathering and educative visits, the details of them, or the number of claim group members involved in the activities.  Further, the grant of the proposed licence does not confer exclusive right of access to the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

1. The native title party also contend that their community and social activities will be directly interfered with in that the spirituality of the land will be destroyed by exploration activities, that the failure to carry out their responsibility properly to care for the land will lead to fear of misfortune and that traditional punishment ‘will probably be’ levelled against them if there is damage to places for which they have responsibility.  These contentions are similar to those made in Linda Champion and are rejected for similar reasons (Linda Champion at [65]-[66]; Walley v Western Australia at [13]-[21]; Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]; Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12).

2. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). In this case the area of the proposed licence is situated over Reserve and unallocated Crown land so there is no question of pastoral activities interfering or having interfered with the native title party’s community and social activities. As noted in paras [13]-[14] above the area of land the subject of the proposed licence has a history of past, present and future mining activities, and the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts. However, related objection applications have in all cases been resolved either by withdrawal of the objection, dismissal for failure to proceed with the objection, or withdrawal of the tenement application. While I accept that exploration activities can be detrimental to Aboriginal community activities, there is nothing before me evidencing a prior detrimental affect on community and social activities in this area. I also note that the south eastern boundary of the Central West Goldfields claim intersects only the north western portion of the proposed licence, and while I can accept that native title party members are not confined by technical boundaries, exploration activities in the context of the claimed land overall will be limited. Similarly, the Widji claim encompasses only the north eastern portion of the proposed licence.

3. Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

1. The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licence. 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 Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act 1972 (WA) to contend that there is not likely to be interference with sites of particular significance to the native title party. This regime has been described on numerous occasions by the Tribunal and I adopt the findings in Walley at [50]-[51]. The Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely.  More recently in Linda Champion at [70]-[71] I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites. I adopt those findings for the purpose of this inquiry. The revised guidelines will also have the effect of minimising the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) that grantee parties did not know or could not reasonably be expected to have known of the existence of an Aboriginal site (Walley at [50]). The Tribunal will have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

3. The native title parties contend that there are sites of particular significance to them which are likely to be interfered with because the Aboriginal Heritage Act regime is insufficient to ensure their protection and because the grantee party has not entered into a heritage protection agreement with them.  At paragraphs 9, 10 and 12 of his affidavit evidence Mr Velickovic asserts that Granite Rocks, Sunday Soak and Wanaway Well which amongst others are ‘known only to relevant Aboriginal elders’ are sites of ‘extremely high cultural and historical significance’ to the Widji People and that each of these sites is either within or in the vicinity of the proposed licence.  The Central West Goldfields native title party’s Statement of Contentions add that ‘Granite Rocks is a significant Dreaming Site on the Two Men Dreaming story’.  Ms Sambo also speaks of the ‘increase site’ for fruit, as referenced earlier.  This evidence is uncontested and while little detail is provided I accept, given their nature, that these sites are of particular significance to the native title parties for the purposes of this determination.  Tribunal mapping clearly indicates that Wanaway Well is situated within the proposed licence.  However, Sunday Soak and a location identified as Granite Hill (which I infer to be the same place as Granite Rocks as referenced in contentions and evidence) are approximately 11 kilometres south and three kilometres west respectively from the subject area.  It is unlikely that they will be interfered with by exploration on the licence area.  The Two Men Dreaming story, while of significance to the Central West Goldfields objectors, is imprecisely described as passing through Granite Rocks and Cave Hill (the latter being some 20 kilometres west south westerly of the proposed licence) ‘to Miami Rockhole and along the wash to the south of Coolgardie’, which is some 69 kilometres north westerly of the subject area.  I am unable to identify whether it does in fact pass through the proposed licence.  It would appear to travel to the west of the subject area.   I do however accept the native title parties' claims that many sites have not been mapped or recorded and there does remain a possibility that sites other than Wanaway Well may exist within the boundaries of the proposed licence.

4. With respect to the ‘increase site’ for bush fruit, the location is given as ‘near to the tenement’.  This site would not be easily identifiable but as it is not on the tenement area I regard it as unlikely that it will be interfered with.  However, its existence is now known to the grantee party and steps will need to be taken to ensure that there is no breach of the Aboriginal Heritage Act in respect of it, an obligation which I am satisfied the grantee party will comply with.

5. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any area or sites of particular significance.  I am satisfied that the regulatory regime in place will ensure that interference with sites is unlikely.  I note both native title parties’ contentions that their concerns regarding the protection of sites can be ameliorated by the execution of a heritage agreement defining protocols for the conduct of heritage surveys.  The Central West Goldfields objection application states that the objection will be withdrawn once the CWAHA is entered into and a heritage survey carried out.  The grantee party has an agreement to conduct a heritage survey with the Ngadju native title party in accordance with the RSHA indicating it is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage.  It will also mean that at least over the majority of the area of the proposed licence (77.08%) an Aboriginal heritage survey will be carried out to ensure that sites of particular significance to the Ngadju native title party will be protected.  I can infer that these will also be of particular significance to the Widji and Central West Goldfields native title parties.  This leaves open the possibility that there may be sites of particular significance to the Widji and Central West Goldfields native title parties which are not of particular significance to the Ngadju (something which I regard as unlikely) and the possibility of sites existing on the area not covered by the Ngadju survey.  In this respect the grantee party has given evidence that it will conduct heritage surveys under a RSHA involving the Widji and Central West Goldfields native title parties if he needs to which would ensure that any gaps in the Ngadju survey are covered.  While this statement does not have the status of a firm commitment or agreement to carry out a survey, I am satisfied that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act not to interfere with Aboriginal sites and will take whatever steps are necessary by consultation with the Widji and Central West Goldfields native title parties to ensure that the law is complied with.

6. In Linda Champion (at [33], [35]) I found that the Government party’s proposed condition added some weight to the regulatory regime in that the objecting native title party was afforded the opportunity to insist on a heritage survey, albeit pursuant to the RSHA, following consultation with the grantee party. In this matter however (as with WO04/61) I find the Government party’s proposed condition of value only in that the Ngadju native title claim encompasses a larger extent of the proposed licence than either the Central West Goldfields or Widji claims, and therefore if the Ngadju People were inclined to insist on a survey pursuant to the RSHA some measure of protection for sites of significance to the objecting native title parties would be afforded. However, as pointed out in WO04/61 at [34] it is not clear to me what purpose this condition serves when there is already a RSHA in place between the Ngadju and grantee parties. The condition provides no mechanism by which the objecting native title parties can insist on a survey. Notwithstanding this fact I am satisfied that the Government party’s regulatory regime with respect to Aboriginal sites combined with the grantee party’s intention regarding their protection ensures that there is no real risk of interference, even though the possibility exists that some sites of particular significance, whether recorded or not, may exist on the subject area.

Major disturbance (s 237(c))

1. Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely (in the sense of a real risk) to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

2. The concerns of the native title parties are set out in each native title parties’ contentions (para 5) and have largely been dealt with when considering ss 237(a) and 237(b). Mr Velickovic’s affidavit evidence however makes no further reference in relation to those concerns. The native title parties contend that a site survey is necessary to prevent major disturbance. For the reasons already given on s 237(b) I do not consider disturbance to land which amounts to interference with an Aboriginal site to be likely. This means that while I accept the contention that a permissible quantity of blasting or bulldozing (eg. ten metres by ten metres), if performed on a geographical feature said to be established in the Creative Era, would constitute major disturbance in the view of all Aboriginal people associated with that particular story or song line and indeed to the general Australian community it is not something which is likely to happen.

3. The native title parties also contend that the activities permissible upon grant of the proposed licence constitute a major disturbance of the ground, even by the standards of the wider Australian community.

4. In Linda Champion (at [78]-[79]) I found the Government party’s regulatory regime sufficient to ensure that major disturbance to land was not likely to result from the grant of the proposed licence and I adopt those findings for the purpose of this inquiry. In finding that there is not likely to be major disturbance to land I have also had regard to the fact that there are no Aboriginal communities in the vicinity, to the Government party’s regulatory regime in the Mining Act and conditions imposed dealing with ground disturbing activities and rehabilitation.  There is no evidence of any sensitive topographical, geological or environmental factors on the proposed licence area which would lead members of the Australian community generally to think that exploration activities would result in major disturbance to land.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E15/821 to Bullion Minerals Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

19 March 2005