Mr Johnson Taylor and Others on behalf of Njamal/Western Australia/Montezuma Mining Co. Ltd
[2008] NNTTA 81
•30 June 2008
NATIONAL NATIVE TITLE TRIBUNAL
Mr Johnson Taylor and Others on behalf of Njamal/Western Australia/Montezuma Mining Co. Ltd, [2008] NNTTA 81 (30 June 2008)
Application No: WO07/1374
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Mr Johnson Taylor and Others on behalf of Njamal (WC99/8) (native title party)
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The State of Western Australia (Government party)
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Montezuma Mining Co. Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 30 June 2008
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 cause major disturbance to land or waters – expedited procedure is attracted – expedited procedure applies
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTTWO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Representatives of the Mr Rodney Nichole, Pilbara Native Title Service
native title party: Mr Raina Mathews, Pilbara Native Title Service
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the
grantee party: Mr Michael Giles, Montezuma Mining Co. Ltd
REASONS FOR DETERMINATION
On 15 August 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E45/2974 (‘the proposed licence’) to Montezuma Mining Co. Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 160.35 square kilometres located 45 kilometres easterly of Shay Gap in the Shire of East Pilbara. It is overlapped by the registered claim of the Njamal (WC99/8, registered from 3 June 1999) at 100 per cent and the Birrimaya (WC95/60, registered from 10 October 1995) at 39.7 per cent.
On 10 December 2007 an objection to the expedited procedure statement was lodged with the Tribunal by Mr Johnson Taylor and others on behalf of Njamal WC99/8 (‘the native title party’) in respect of the proposed licence. No objection was lodged on behalf of Birrimaya WC95/60.
In accordance with standard practice in expedited procedure matters, 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 four month 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.
At the status conference on 12 March 2008, the grantee party confirmed that the terms of the native title party’s alternative heritage agreement was not acceptable, that it would execute a Regional Standard Heritage Agreement (‘RSHA’) in favour of the native title party and requested that the matter proceed to inquiry. With the consent of all parties, the native title party was subsequently granted two extensions to directions with its compliance to be on or before 22 May 2008.
In accordance with amended directions, the Government party lodged its contentions and evidence by 7 April 2008 and the native title party by 21 May 2008. The grantee party had previously submitted that it would rely on the Government party’s contentions and evidence. At the adjourned listing hearing on 23 May 2008, parties reported that all contentions and evidence had been lodged and agreed that the matter could be heard ‘on the papers’, that is, without a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences 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 while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.
The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA) (inserted post Walley) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. That decision was appealed to the Full Federal Court and the appeal dismissed (Parker v State of Western Australia [2008] FCAFC 23).
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Warrawagine Pastoral Lease 3114/1169 (50.2 per cent overlap)
Callawa General Lease I134817 (39.7 per cent overlap)
Crown Reserve 9700 - De Grey-Peak Hill Stock Route (10.1 per cent overlap)
Department of the Environment and Heritage Listed Wetland AW/65 - De Grey River (0.5 per cent overlap)
Notable topography includes Callawa homestead, 14 minor unsealed roads, 17 tracks, an aircraft landing ground and runways, 16 fence lines, 6 bores, 6 non-perennial lakes, 25 non‑perennial major watercourses, 47 non-perennial minor watercourses and 9 springs, soaks, pools or waterholes.
The documentation notes that there are no Aboriginal communities within or adjacent to the proposed licence.
A search of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act 1972 (WA) provided by the Government party reveals one site within the proposed licence: site ID 12141 named as Callawa and described as a closed access site on the permanent register containing a repository/cache and artefacts/scatter.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions are the following:
Providing notification to the pastoral or grazing lessee, of the grant of the licence and of certain exploration activities (conditions 5–6)
No interference with Geodetic Survey Station SSM-B 21 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 7)
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (condition 8)
Consent to mine on Stock Route Reserve 9700 granted subject to no exploration activities being carried out on the Reserve which restrict the use of the Reserve (condition 8)
Department of Water restrictions and approval requirements over the listed wetland AW/65 including written notification and approval of proposed activities, disturbance of waterways, wetland or fringing vegetation, rights of ingress to and egress from, storage of hazardous substances (conditions 10-13)
All mining tenement activities prohibited within 200 metres of the listed wetland AW/65 unless written permission from the Department of Environment and Conservation and Department of Water is first obtained (conditions 15-16)
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder, the Environmental Protection Act (WA) 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations (WA) 2004 which provides for the protection of all native vegetation from damage unless prior permission is obtained, the Water and Rivers Commission Act (WA) 1995 and any Regulations thereunder, and the identification of environmental sensitive wetlands listed within the Ramsar Convention 1971, Australian Nature Conservation Agency’s Directory of Important wetlands, the National Estates Register and the Environmental Protection Polices 1999
The Government party will also impose the following condition giving the native title party the option to agree to a RSHA with the grantee party within a specified time after the grant:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the objectors, the applicants in Federal Court application no. WAD 6028 of 1998 (WC99/8), such request being sent by pre-paid post to reach the licensee’s address c/- Post Office Box 8355, Perth Business Centre, Perth 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 Objectors the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Native Title Service.”
Government party documentation also notes there has been some recent exploration activity over the proposed licence: two exploration licences E45/2061 and E45/2104 granted in 1999 and surrendered in 2000 overlapping at 30.8 and 59.2 per cent each.
In relation to E04/2061, on 16 September 1999 the native title party lodged an objection to the expedited procedure (WO99/155) which was withdrawn on 15 December 1999 as the grantee for that matter and the native title party successfully negotiated an agreement. In relation to E45/2104, no objection was lodged.
The native title party’s submissions include a statement and accompanying map signed by Johnson Taylor on 21 May 2008 and witnessed by Elke Nagy, Paralegeal Officer of the Pilbara Native Title Service, the service arm of the Yamatji Barna Baba Maaja Aboriginal Corporation being the representative body for the native title party:
“1. Do you recognise this area outlined in blue [the proposed licence]?
Yes, I’ve been there since I was a kid. We call that area Callawa. Blackfella call it Pirimaya.2. Have you lived out there? Have other people lived there?
I lived at Warragine – not far across. We used to walk across to Pirimaya, no motor-car then. Spend our holidays there. Old people used to live there. I used to help out the old people.3. When did you last visit?
I last visited a couple of years ago. I’m planning to go out again soon.4. How often to you go to the area? How often do other people go to the area?
I don’t go out that often now. People from Warralong go out there shooting (kangaroo, emu, bush turkey etc) and fishing quite a lot. People at Warralong are all mixed up – Mangala, Njamal etc. Joe Taylor is Njamal and he goes out fishing and hunting that way.5. What do you do when you’re in the area?
Hunting, fishing, camping out.6. Can you name places/sites within the area?
Homestead is called Pirimaya. Two hills near Pirimaya are called Wangykukapunya. Kuluntu Hill is next to De Grey River. Karruwalkan is the spot where the Oakover and Nullagine Rivers meet. Places are marked on the attached map.7. Are there any important sites in the area? Why are they important?
See below8. Are there any songs which pass through the area?
There’s a very big song – takes two or three weeks to sing – it goes through one of the sites named above. It’s for men only – very important and very secret9. Are there any Law Grounds in the area?
There is a Law Ground on the sand hill near the Callawa homestead. Last time law was done there was about 30 years ago. One day we might open it up again. Mining company can’t go there.10. Are there any gender restricted sites in the area?
Information about the song that passes through the area is for men only.”
The statement was accompanied with the following correspondence from Rainer Mathews, PNTS legal officer:
“… we would have preferred to file an affidavit or statutory declaration but this has not been possible for logistical reasons. The attached statement was prepared in the following way. I prepared and read out the questions and wrote down Mr Taylor’s answers. On completion I re‑read the questions and answers aloud to Mr Taylor who confirmed the contents and signed each page. Elke Nagy, Paralegal employed by the Pilbara Native Title Service, was present throughout and witnessed the signing. The questions were asked with reference to the map which is also attached and which includes amendments made in pen during the session.”
Although not a sworn affidavit, the statement provided by Mr Taylor is accepted by the Tribunal as evidence. The other parties did not object to the form of evidence and I have taken into account that the Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence (s 109(3)).The evidence is uncontested by the Government and grantee parties and I accept it. Mr Taylor is a named applicant to the native title party’s claim application and I accept he has authority to speak on behalf of the native title party for the area of the proposed licence.
In its statement of contentions, the native title party contends that within the proposed licence are “a variety of living facilities at the place known as Pirimaya, referred to in English as Callawa, which …. are used from time to time by the Objectors and other Aboriginal People”(para 5a) and that exploration activities are likely to interfere with community and social activities. It also contends there are “at least seven sites of significance to the objectors” within the area of the proposed licence (para 6a).
Maps provided by the Tribunal’s geospatial unit show the location of registered sites, sites identified by the native title party’s evidence and contentions, rivers and homesteads within and adjacent to the proposed licence.
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 them are likely to (in the sense of there being a real risk) interfere with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([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 (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The evidence suggests that the proposed licence has been subject to some prior exploration activities for limited time periods but this is not a case where there have been extensive mining activities which may already have significantly affected the native title party’s community or social activities. However, there is an existing pastoral lease and general lease which have probably affected them to some extent.
The evidence of Mr Taylor establishes that in the past he and other members of the native title party “used to walk across to Pirimaya, no motor-car then. Spend our holidays there. Old people used to live there. I used to help out the old people.” Mr Taylor states that “I last visited a couple of years ago. I’m planning to go out again soon…. I don’t go out that often now.” Current community and social activities are evidenced in Mr Taylor’s statement that “People from Warralong go out there shooting (kangaroo, emu, bush turkey etc) and fishing quite a lot. People at Warralong are all mixed up – Mangala, Njamal etc. Joe Taylor is Njamal and he goes out fishing and hunting that way.”
The native title party contends that “a variety of living facilities at the place known as Pirimaya, referred to in English as Callawa, which …. are used from time to time by the Objectors and other Aboriginal People” (para 5a) and that there are “other camping areas (such as Camel Camp…) which are outside but close to the area of the proposed tenement and which are used from time to time by the Objectors and other Aboriginal People. There have been proposals that these camps, as well as Pirimaya, be used for drying out camps for young Aboriginal People from town suffering from substance abuse. Conducting exploration activities in the area would limit the effectiveness of such camps” (para 5e). However, despite Mr Taylor’s general evidence about hunting, fishing and camping, there is no specific evidence from the native title party which provides further information on other members of the native title party who visit the area of the proposed licence, whether any live there or plan to live there or the circumstances in which they live or will live – whether on a permanent basis or otherwise or the frequency of the community or social activities carried out.
In relation to the Law Ground located near Pirimaya, the native title party contends that it “is used from time to time by the Objectors and other Aboriginal People living in the area …. [and] conducting exploration activities in or near Pirimaya is likely to interfere with community and social activities if the locality is in use” (paras 5b-c). Mr Taylor’s evidence states that “Last time law was done there was about 30 years ago. One day we might open it up again.” There is no evidence that the area is in current use by the native title party for such community or social activities, and no evidence is provided as to whether the Law Ground may be used again and if so, how frequently. Therefore I cannot find that community or social activities on the Law Ground are likely to be interfered with pursuant to s 237(a) of the Act. Nonetheless, the area of the Law Ground is a site of significance to the native title party pursuant to s 237(b) of the Act and is dealt with below.
In general the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with a native title party’s community or social activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). However, this is not an inevitable finding (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23])).
My finding in the present case is that the proposed exploration activity is not likely directly to interfere with the community or social activities of the native title party.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine 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) significance to the native title party in accordance with their traditions. Recorded on the Register kept under the Aboriginal Heritage Act 1972 (WA) is one closed access site within the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.
The uncontested evidence of the native title party shows the proposed licence to contain a number of areas or sites which potentially are of particular importance to the native title party:
A Law Ground – located on a Sand Hill near Callawa Homestead or Pirimaya and the “Mining company can’t go there”
Wangykukapunya – a hill located southwest of Callawa or Pirimaya
Kulunta Hill – located next to the De Grey River
Karruwalkan – located at the junction of the Nullagine and Oakover Rivers
A “very big song” that “goes through one of the sites named above. It’s for men only – very important and very secret…. Information about the song that passes through the area is for men only.”
I am satisfied that the sites and areas are of particular significance to the native title party in accordance with their traditions. All are located with the area of the proposed licence and there could potentially be interference with them.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA), and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act 1972 (WA) which has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]‑[38], [40]‑[41].While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
The grantee party has not provided specific evidence of its exploration intentions and therefore I must conclude that upon grant, the grantee party will conduct its exploration activities and exercise its rights to the full extent permitted by an exploration licence and that this would have the potential to interfere with Aboriginal sites.
The grantee party has offered to sign an RSHA in favour of the native title party and this offer is further strengthened by the Government party’s condition that if so requested by the native title party within ninety days of grant, the grantee party must execute a RSHA in its favour. The RSHA process adopted by the Government party in various regions of WA after discussions with the relevant representative bodies and industry has been detailed in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15]-[35] (‘Champion’) the relevant parts of which I adopt for the purpose of this determination. The grantee party has re-affirmed its willingness to enter into the RSHA which is evidence that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act 1972 (WA) (Champion at [31]). I have no difficulty in accepting that the grantee will act lawfully and in accordance with the Aboriginal Heritage Act and I accept that heritage surveys will be conducted over the area via the RSHA.
It is my view the evidence in the present matter does not exhibit ‘site rich’ characteristics to justify a finding that the regulatory regime will be inadequate. Some of the sites of particular significance referred to above are specific in type and location but do not amount to establishing that the area is rich in sites. The grantee party is on notice of their existence and the native title party’s wishes which will mean that if they are interfered with the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) will not be available to it.
I am satisfied that the presumption of regularity can apply in this case. There is no evidence that the grantee party has or will act contrary to the law and particularly the regulatory regime dealing with Aboriginal sites based on the Aboriginal Heritage Act 1972 (WA). The native title party will have an option to enter into a RSHA which I am satisfied will be sufficient to make interference with sites unlikely, including because of the consultation process it sets up. The native title party has found the RSHA satisfactory in other matters.
Major disturbance to land and waters (s 237(c))
No contention is made by the native title party in relation to s 237(c) and so it is not strictly necessary to deal with it. In summary, s 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 to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005). 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.
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (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 and cases cited therein at [50]).
In making a finding on this point I have had regard to the fact that there are no Aboriginal communities in the vicinity; that no evidence or contentions have been provided by the native title party on s 237(c); that the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E45/2974 to Montezuma Mining Co. Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
30 June 2008
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