Mullewa Wadjari Community/Western Australia/Paul Winston Askins
[2012] NNTTA 25
•16 March 2012
NATIONAL NATIVE TITLE TRIBUNAL
Mullewa Wadjari Community/Western Australia/Paul Winston Askins, [2012] NNTTA 25 (16 March 2012)
Application No: WO11/854
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
Mullewa Wadjari Community (WC96/93) (native title party)
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The State of Western Australia (Government party)
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Paul Winston Askins (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms Helen Shurven
Place: Perth
Date: 16 March 2012
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151, 237
Mining Act 1978 (WA) s 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Doris Ryder and Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Mullewa Wadjari Community/Western Australia/Drew Griffin Money [2012] NNTTA 26
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Representative of the
native title party: Ms Shirley Feng, Corser & Corser Lawyers
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Paul Askins
REASONS FOR DETERMINATION
On 23 March 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 E70/3985 (‘the proposed licence’) to Paul Winston Askins (‘the grantee party’) and included in its 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) (‘expedited procedure notification’).
The proposed licence comprises an area of 163.88 square kilometres located 87 kilometres north of Mullewa in the Shires of Murchison/Northampton. It is 100 per cent overlapped by the registered native title claims of the Mullewa Wadjari Community (WC96/93, registered from 19 August 1996) and the Wajarri Yamatji (WC04/10, registered from 5 December 2005).
On 20 July 2011, Mr Leedham Papertalk and Others, on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’) in respect of the proposed licence. No objection application was lodged by the Wajarri Yamatji.
On 15 August 2011, Hon C J Sumner was appointed as the Member for the purpose of conducting the inquiry into the application. In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. The directions allow a period from the s 29 closing date for the lodgement of objections (23 July 2011), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
On 30 August 2011, a preliminary conference was held at which the grantee party advised that, in accordance with the Government party’s policy requirement for expedited procedure notification, it had signed a Regional Standard Heritage Agreement (‘RSHA’) with the Wajarri Yamatji and did not intend to sign an RSHA with the native title party. The Government party representative confirmed that the grantee party had met the Government party’s policy obligation which, in the case where more than one native title claim or determination area overlaps a proposed future act it considers eligible for expedited procedure notification, requires the grantee party to enter into a RSHA with only one of these parties. The native title party representative requested time to seek instructions. The matter was adjourned to a status conference held on 19 October 2011, at which it was confirmed that the matter would proceed to an inquiry before the Tribunal.
In accordance with the directions, the Government party lodged its contentions and evidence on 21 October and 9 November 2011. Following a request for an extension to the directions, the native title party lodged its submissions on 5 December 2011. On 22 December 2011, a Listing Hearing was held at which the Government party requested leave to consider the native title party’s submissions to determine whether it would request an “open hearing” on the matter. The matter was adjourned to a Listing Hearing on 2 February 2012 at which the Government party again requested leave to consider the native title party’s submissions, this time in order to determine whether it wished to lodge a written reply rather than request a hearing. All parties agreed for the matter to be heard ‘on the papers’ without a further hearing.
Following the 2 February 2012 Listing Hearing, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry into the objection application. In consideration of the Government party’s request for leave to consider the native title party’s submissions, I directed that any party who wished to file any submissions in reply to another party’s submissions should do so by 5 March 2012. On 1 March 2012, the Government party lodged a Statement of Contentions in Response to the Contentions of the Native title Party (‘the Response’). No other submissions were received.
I have considered all submissions from parties and I am satisfied that the objection application can be adequately determined on the papers (as per s 151(2) of the Act).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and I adopt those findings for the purposes of this inquiry (as per s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
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 or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party Tengraph Quick Appraisal documentation dated 20 October 2011 establishes the underlying land tenure of the proposed licence to be as follows:
·Yallalong Pastoral Lease 3114/867 (39.8 per cent overlap);
·Pinegrove Pastoral Lease 3114/1168 (34.1 per cent overlap);
·Bullardoo Pastoral Lease 3114/972 (14.7 per cent overlap);
·Private Land CG 7194 (10.8 per cent overlap);
·Coolcalalaya Pastoral Lease 3114/1211 (0.4 per cent overlap);
·Common Reserve 36656 - Emu Proof Fence (0.1 per cent overlap); and
·6 Road Reserves (overlapping at less than 0.1 per cent each).
The Government party’s Tengraph Quick Appraisal documentation also notes Historical Leases 392/402, 392/452, 392/404 and 392/403 overlapping the proposed licence at 35.3, 8.5, 5.2 and 4.3 per cent respectively. The documentation also notes: seven surrendered exploration licences active between 1997 and 2010 which overlapped between 3.4 and 38.9 per cent; 11 surrendered or expired mineral claims active between 1979 and 1985 which overlapped at no more than 0.7 per cent each; and two active mining leases with no more than 0.1 per cent overlap each.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party shows no registered Aboriginal Sites or Heritage Places under the Aboriginal Heritage Act1972 (WA) (‘AHA’) within the area of the proposed licence.
Tribunal mapping shows no Aboriginal communities within the area of the proposed licence.
The Draft Tenement Endorsement and Conditions Extract included in the Government Party documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and the following further conditions:
‘5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Stations SSM-Ajana 21 & 22 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.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.
9.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Emu Proof Fence Reserve 36656 (Ajana).’
The Draft Tenement Endorsement and Conditions Extract also notes the following three endorsements for the proposed licence (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach):
‘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.
3.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.’
The Government party’s contentions (at 5(f)) note the offer of a Regional Standard Heritage Agreement condition (‘the RSHA condition’):
‘[T]he government party will place the following condition (“the proposed condition”) on the grant of the proposed tenement:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Wajarri Yamatji, the applicants in Federal Court application no. WAD6003 of 1998 (WC04/10), such request being sent by pre-paid post to reach the Licensee's address, 214 York Street, Subiaco WA 6008 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wajarri Yamatji the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.”’
Government party evidence and contentions
The evidence provided by the Government party has been summarised above and any relevant contentions made by it in its submissions will be discussed in my findings below. The Government party’s Response to the contentions of the native title party dated 1 March 2012 are largely a restatement of the original contentions provided by the Government party, including further detail about concerns with the evidence provided by Mr Papertalk. For example, the Government party states: that Mr Papertalk fails to outline the kinds of activities which he and other Aboriginal people participate in within the vicinity of the proposed licence area; that his concerns relating to interference with sites are not sufficiently particular; nor does he identify any major disturbance to land or waters that may arise from the grant of the proposed licence.
Native title party evidence and contentions
On 5 December 2011 the native title party representative lodged a document entitled ‘Native Title Party’s Statement of Contentions’ dated 22 November 2011 and signed by Mr Leedham Papertalk on behalf of the native title party as follows:
‘1.The ground covered by the exploration licence is highly likely to contain sites (within the meaning of that expression in the Aboriginal Heritage Act 1972 (WA) because:
a. Lake Nerramyne is a seasonal body or water which meant that in season, the locality of this lake is (and prior to European settlement, was) a source of traditional food, including kangaroo, goanna (including the black bungarra), emu and bush turkey;
b. Members of the Mullewa Wadjari claimant group continue to hunt for and take traditional foods from this region within the exploration licence area;
c. The land between Lake Nerramyne and Pinegrove (to the east) was occupied and travelled through by the traditional owners prior to European settlement because that country is located between the seasonal body of water known as Lake Nerramyne and Pinegrove, which is an area where there is a prevalent supply of Bimba Tree, which is a source of sweet sap emitted by the tree, in season. This sap was and is highly valued as a form of traditional food.
d. The same region contains Biliya Trees, which are grown on flat land along rivers and in breakaway country, which is a valued source of food.
e. The same region contains growths of Thuga Thuga (sometimes called Bush Banana) which is a popular form of food, in season; and also quandongs, and jalga (similar to a bean), used as highly nutritious food.
f. In the same region there exists the bush fruit called goggola, which is a type of hanging pod containing seeds. It is sweet and contains a silky white material with the seeds, inside. It can be collected and opened, to eat the entire inside contents.
g. The presence of these sources of food means that the area is very likely to contain old camp-sites used by my people’s ancestors when they spent extended periods of time in the region, year to year.
h. It is therefore also a strong possibility that there will be traditional gravesites in the region.
i. There is also likely to be scatterings of artefacts within the region, as a result of the historical occupation of the region by my people’s ancestors.
j. It is also a strong possibility that there will be sites and scatterings of artefacts deposited by my ancestors in the course of their observances of traditional ceremonies within the region.
k. The same types of food sources and thus the same likelihood of evidence of occupation of the country by my ancestors exist in the northern portion of the exploration licence because it is close to the Murchison River and other water sources including Mummering Spring.
l. Within the breakaway country regions of the exploration licence area I have observed evidence of traditional owners having had cooking fires in caves, the smoke markings evidencing the use and occupation of the area by my ancestors.
2.If the licence holder is permitted to perform exploration activities within the area of the licence without the ground being surveyed and monitors being present when the region is being disturbed, then there is the risk of items left behind by my ancestors.
3.Further, in traditional terms there is a strong law requiring my people and me to care for and protect places where our ancestors lived, and particularly where they camped, or carried out ceremonies, or where they were buried. The spirits of our ancestors live in these places.
4.If these places are disturbed or damaged then in my people’s belief system they can expect that the disturbance of our ancestors’ spirits will lead to misfortune, ill health and possibly also death within my people’s society. For this reason, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artefacts before the work is done, my people and I experience strong fear of the adverse consequences likely to befall us if and when our ancestors’ spirits are disturbed by damage to or interference with the places that they inhabit.’
In its response to the above contentions, the Government Party notes ‘it appears that the document is purporting to be a statement of evidence from Mr Leehham [sic] Papertalk and not a contention or submission in the true sense (despite the document heading). Accordingly ... the Government Party is treating the NTP Document as a witness statement from Mr Papertalk’ (at 23).
Mr Papertalk is one of the persons comprising the native title party Applicant and as such I accept he has the necessary authority to speak on behalf of the native title party. I agree with the Government Party’s assessment of the above contentions and, with reference to s 109 of the Act which notes the Tribunal is not bound by technicalities or rules of evidence, accept it as evidence for the purposes of this inquiry. However, I do note that the contentions are very similar to those provided by the native title party in Mullewa Wadjari Community/Western Australia/Drew Griffin Money [2012] NNTTA 26 (‘Money’), except in that matter, the contentions were signed by the native title party’s legal representative propria persona (that is, for) Mr Papertalk.
In Doris Ryder and Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15, Hon CJ Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that evidence relating to the matters in s 237 is essential to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. In this matter, there was no objection to acceptance of the statement in its current form. The Government party has contested some of the evidence in broad terms and I will deal with that, as relevant, throughout this determination. Applying these principles to the present case, I am satisfied that the statement signed on behalf of Mr Papertalk is admissible, accept it on its face, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act.
Grantee party contentions
On 2 February 2012 the grantee party submitted a statement via email that:
‘By supplying an RSHA to one Native Title Party, Wajarri Yamatji, I believe that I have satisfied the requirements of the State with respect to Native Title heritage issues for my application for E70/3985, and that there is no requirement to, and thus I do not wish to, also sign an agreement with Mullewa Wadjari.’
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’)). 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). The assessment is also contextual, taking into 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 451-452).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 66, conditions to be imposed on exploration licences, and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence suggests that some of the area of the proposed licence has been subject to recent exploration activity and that current and historical pastoral activity has occurred over the majority of the area for some time, which is likely to have already significantly interfered with the native title party’s community or social activities. Furthermore, 10.8 per cent of the area is private land upon which native title is likely to have been extinguished.
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of the native title party’s community or social activities or interfere with areas or sites of particular significance to a native title party. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 at [29]-[30] (‘Silver’), Member Sosso outlined that:
‘The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.’
As no contentions or evidence have been submitted by the grantee party regarding its intentions for the proposed licence, it is assumed that the grantee party will exercise its rights to the full should the proposed licence be granted.
With reference to the contentions provided by the native title party, I note that much of the information is the same as that provided for Money, which is some 30-40 kilometres east of the current proposed licence. Whilst Mr Papertalk states that members of the native title party ‘continue to hunt for and take traditional foods from this region within the exploration licence area’ (at 1b) and lists a number of food sources within the area (at 1a-1f) there is no information provided regarding the frequency, duration, or specific members of the native title party who engage in these activities in a contemporary context. The evidence lacks sufficient specificity to support a conclusion that the native title party’s community or social activities are likely to be interfered with as a result of the grant of the proposed licence.
Taking all of these factors into account, on the basis of the evidence provided, I find there is not a real chance or risk that exploration activity is likely to 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))
The next 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 at [17] of this determination, the Register kept under the AHA shows no sites within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (for example in Maitland Parker at [31]-[38], and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each 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]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The native title party provides no evidence of specific sites within the proposed licence other than the general statements that ‘the area is very likely to contain old campsites used by my people’s ancestors’, that there is ‘a strong possibility that there will be traditional gravesites in the region’, that there ‘is also likely to be scatterings of artefacts within the region’ and ‘evidence of traditional owners cooking fires in caves’ (at 1g-1l). These statements are the same as those submitted in Money. There may be sites on or near the proposed licence, however the native title party evidence has not provided sufficient information to conclude where these are located, or whether they are sites of particular significance as required by s 237(b).
There is no evidence to suggest that the grantee party will not comply with the regulatory regime and its offer to enter into a RSHA with the Wajarri Yamatji indicates awareness of Aboriginal heritage issues, albeit that this is not the native title party. The Government party’s RSHA condition is of little practical benefit for the native title party because it provides for a RSHA to be executed in favour of the Wajarri Yamatji and not the native title party. However, there is insufficient evidence provided by the native title party to support a conclusion that sites of particular significance are likely to be interfered with.
Taking all these factors into account, I find it unlikely that there is a real risk of interference with sites of particular significance from exploration activity conducted by the grantee party.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The 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 to think that exploration activities would result in any major disturbance to land or waters. 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 (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at [75]-[79] and the cases cited therein).
On the balance of the evidence provided in this matter, I find it is insufficient to suggest there are any factors leading to a finding that major disturbance to land or waters is likely. I find there has not been evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113. Nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver.
Determination
The determination of the Tribunal is that the future act consisting of the grant of exploration licence E70/3985 to Paul Winston Askins is an act attracting the expedited procedure.
Helen Shurven
Member
16 March 2012
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