Nyangumarta Warrarn Aboriginal Corporation/Western Australia/Diatreme Resources Limited - [2013] NNTTA 152

NATIONAL NATIVE TITLE TRIBUNAL

Nyangumarta Warrarn Aboriginal Corporation/Western Australia/Diatreme Resources Limited [2013] NNTTA 152 (30 October 2013)

Application No: WO2012/0724

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

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IN THE MATTER of an inquiry into expedited procedure objection application

Nyangumarta Warrarn Aboriginal Corporation (WCD2009/001) (native title party)

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The State of Western Australia (Government party)

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Diatreme Resources Limited (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Helen Shurven, Member
Place:   Perth
Date:   30 October 2013

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 involve major disturbance to land or waters - expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 146, 151(2), 155

Aboriginal Heritage Act 1972 (WA)

Cases: Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd, [2009] NNTTA 153 ('Kimberley Quarry')

Butcher Cherel and Others on behalf of the Gooniyandi Native Title   Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15 (‘Butcher Cherel’)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western   Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Geotech   International’)
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (‘Dann’)
Doris Ryder & Others on behalf of Lamboo People/Western         Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, [2010] NNTTA 15 ('Doris Ryder')
Hughes v Western Australia (2003) 182 FLR 362) ('Hughes')
Les Tullock and Others on behalf of the Tarlpa Native Title          Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 ('Allarrow')
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon         [2006] NNTTA 65 (‘Maitland Parker’)
Monadee v Western Australia (2003) 174 FLR 381 ('Mondadee')
The Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 (‘Miriuwung Garjerrong 1’)
Parker on behalf of the Martu Idja Banyjima People v State of Western    Australia [2007] FCA 1027 (‘Parker 1’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)
Silver v Northern Territory (2002) 169 FLR ('Silver')
Smith on behalf of the Gnaala Karla Booja People v Western Australia    (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’)
Wilma Freddie and Others on behalf of the Wiluna Native Title     Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (‘Asia Investment’)

Representative of the Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation
native title party: Mr Rainer Mathews, Samphire Legal Pty Ltd
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office

Government party: Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the Ms April French, Austwide Mining Title Management Pty Ltd
grantee party:

REASONS FOR DETERMINATION

On 18 April 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E45/4022 (‘the proposed licence’) to Diatreme Resources Limited (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.
The proposed licence is approximately 470 square kilometres in size, and located 122 kilometres north east of Shay Gap in the Shire of Broome. The proposed licence overlaps the determination of the Nyangumarta People (Part A) (WCD2009/001– determined from 11 June 2009) by 88.04 per cent. On 20 July 2012, the Nyangumarta Warrarn Aboriginal Corporation on behalf of its members (’native title party’) made an expedited procedure objection application to the Tribunal in relation to the proposed licence. No other objections were received in relation to this proposed licence.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Between November 2012 and May 2013 directions were amended a number of times following requests from parties.
Parties were unable to reach agreement, and in accordance with final directions, the Tribunal received the following documents:
·the Government party’s supporting documents from the Department of Mines and Petroleum (DMP), on 26 November 2012;
·the native title party’s statement of contentions, on 17 April 2013;
·a single, joint statutory declaration of Ms Janet Stewart and Ms Diane Stewart, declared on 8 April 2013;
·the native title party’s supporting documents including digital video disc ('DVD') evidence, maps of the proposed licence area and a number of reports (detailed at [24] below), on 17 April 2013;
·the grantee party’s statement of contentions, on 16 April 2013;
·the Government party’s statement of contentions, on 6 May 2013; and
·the native title party’s contentions in reply to the grantee party contentions, on 18 June 2013 (detailed at [24]),including DVD evidence of Mr Charlie Wright.
The native title party requested the Tribunal make non-disclosure directions in relation to the statutory declaration of Ms Janet Stewart and Ms Diane Stewart and the DVD evidence filed on 9 April 2013. No party objected to that request. On 6 June 2013, pursuant to s 155 of the Act, non-disclosure directions were imposed on the contents of the statutory declaration and DVD evidence. According to those orders, the statutory declaration and content of the DVD will not be reproduced in this decision, however, I will refer to the contents to the extent required to explain my reasons for this decision. No non-disclosure orders were sought for the DVD evidence of Mr Wright, however, recognising the sensitivity of the evidence in relation to the proposed licence, I refer to Mr Wright's evidence also only to the extent required to explain my reasons.
On 6 August 2013, the Tribunal sent all parties a copy of a map prepared by the Tribunal’s Geospatial Services and indicated that it would be relied upon for the determination of this matter. No objections to that course of action were received.
I was appointed by the President, Ms Raelene Webb QC, as the Member for the purpose of the inquiry on 27 August 2013. Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties and I am satisfied the matter can be determined in this way.

Legal principles

Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in 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’ at [31]–[38], [40]-[41] (see also ‘Parker 1’ and ‘Parker 2’).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see ‘Little’, in particular [588]-[589]).

Evidence in relation to the proposed act

The Government party has provided: a statement of contentions; tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (‘DIA’ – now the Department of Aboriginal Affairs); copies of the tenement application; copies of the proposed endorsements and conditions of the grant; the instrument of licence, and a tengraph quick appraisal for the tenement.
Government party documentation establishes the underlying land tenure of E45/4022 includes:
·   3 Pastoral Leases (3114/1154 Anna Plains at 20.2 per cent, 3114/1079 Wallal Downs at 11.3 per cent and 3114/485 Mandora at 62.7 per cent);
·   Reserve CR9697 (Kimberley De Gray Stock Route) at 3.7 per cent;
·   Reserve CR11784 (for the purpose of ‘Travellers’) at 1.7 per cent;
·   Reserves for ‘Watering Places’ (CR1532 at 0.3 per cent, CR1530 and CR1531 at < 0.1 per cent each); and a Water Reserve (CR16724 at <0.1 per cent);
·   Reserve CR21750 (for the ‘Use and Benefit of Aboriginal Inhabitants’) at < 0.1 per cent.
Documentation establishes that there have been no previous grants of licence over this area. A number of Indigenous Land Use Agreements ('ILUAs') exist over the area (from 0.3 to 63.7 per cent).
The quick appraisal document shows that services affected are: 15 minor roads; 80 tracks; two aircraft landing grounds; four airfield runways; three ruins; three fence lines; one tank; 13 well/bores with windmill; two non-perennial lakes; and one non-perennial minor watercourse.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within E45/4022. From information provided by parties in this matter, it appears that the Nyangumarta Aboriginal Reserve (Reserve 21750) and the living area at Nyiyamarri Pukurl (within the reserve) are located within the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in DMP documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The proposed licence will also be subject to six further conditions:
5.        The Licensee notifying the holder on 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 any grazing lease details of the grant of transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Watering Place Reserves 1530-1532, Water Reserve 16724, Travellers Reserve 11784 and Use and Benefit of Aboriginal Inhabitants Reserve 21750.
8.       No interference with Geodetic Survey Station Mandora 2 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.       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.
Consent to explore on Kimberley De Grey Stock Route Reserve 9697 granted subject to:
10.     No exploration activities being carried out on Kimberley De Grey Stock Route Reserve 9697 which restrict the use of the reserve.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
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.
Government party contentions (at 16) note they will also place the following condition on the grant of the proposed licence (the Regional Standard Heritage Agreement (RSHA) condition):
In respect of the area covered by the licence, the Licencee, if so requested in writing by the Nyangumarta Warrarn Aboriginal Corporation, the registered native title body corporate holding the determined native title of the Nyangumarta People, the native title holders recognised in Federal Court applications WAD6291 of 1998 (WC98/65) and WAD280 of 2008 (WC08/4), such request being sent by pre-paid post to reach the Licencee’s address, PO Box 10288, Brisbane Adelaide Street, QLD, 4000, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour the Nyangumarta Warrarn Aboriginal Corporation, the Pilbara Regional Standard Heritage Agreement endorsed by peak industry groups and the Pilbara Native Title Service.
The grantee party sent a signed copy of the RSHA to the native title party on 27 February 2012.

Submissions of the native title party

The initial submissions of the native title party include the following documents:

Statement of contentions;
Statutory declaration of Ms Janet Stewart and Ms Diane Stewart;
Department of Environment and Conservation: Resource Condition Report for a Significant Western Australian Wetland – Saunders Spring, dated 2009;
CSIRO journal article: Mandora Marsh, north-western Australia, an arid-zone wetland maintaining continental populations of waterbirds, dated 2005;
V & C Semeniuk Research Group Report: Wetlands of the northwestern Great Sandy Desert in the LaGrange hydrological sub-basin, dated September 2000;
Journal of the Royal Society of Western Australia article: Aquatic fauna and water chemistry of the mound springs and wetlands of Mandora Marsh, north-western Australia, dated 2011;
Birdlife Australia: Record of Important Bird Areas – Mandora Marsh and Anna Plains, dated 2008;
Maps of the proposed licence area depicting a Google Earth overview and Eighty Mile Beach Marine Park;
DVD dated 13 April 2013 containing:
ovideo evidence of various members of the native title party speaking about the areas of the proposed licence and surrounds
ovideo evidence of a number of Yinma [songs] sung in traditional language

Submissions in reply to the grantee party contentions included:

Letter from the Chief Executive Officer of Nyangumarta Warrarn Aboriginal Corporation, dated 18 June 2013;
Contentions in reply, dated 18 June 2013;
DVD containing video evidence of Mr Charlie Wright submitted on 18 June 2013.

The statutory declaration of Ms Janet Stewart and Ms Diane Stewart is made jointly and they state ‘we feel it is culturally appropriate that we speak with one voice on this matter, rather than as individuals’ (at 1). As noted earlier, this document is covered by a s 155 confidentiality order, however, I make the point that it is a joint statutory declaration because this is an unusual approach. The statutory declaration states it was prepared over three meetings of the native title party and at each meeting other Senior Elders were present. I accept they both have the authority to swear the declaration on behalf of the native title party and can speak for that country. They state that some native title party members have filmed statements which were included in a separate DVD (as noted in [24] above).
There is also DVD evidence from Mr Wright provided as part of the native title party contentions in reply. Mr Wright’s evidence is accompanied by a letter from the native title party corporation stating he has been authorised by the Directors of the corporation to speak on their behalf.
I accept all of the persons who appear in the DVDs have the authority of the native title party to speak for that country.
The Tribunal is not bound by the rules of evidence (s 109(3) of the Act). In Doris Ryder, Hon C J Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in statutory declaration form. The Tribunal held it is self evident that evidence relating to the matters in s 237 are 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 statutory declaration form, the Tribunal has shown flexibility in accepting other forms of information and evidence, particularly where there is no objection from the other parties. Applying these principles to the present case, I am satisfied that as well as the joint statutory declaration, the DVD information is admissible, accept it, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes).
Ms Janet and Ms Diane Stewart refer to the proposed licence as being partly within a marsh area, and that the marsh area is ‘the most culturally significant in all our country’ (at 12). I won't identify the part of the proposed licence they have outlined, but note it extends from an area on or near the western side of the proposed licence (near the coast), and then is said to extend to an area which, according to Tribunal mapping, is some 50 kilometres inland, in an easterly direction. As such, it goes across about one third to one quarter of the proposed licence. They state this area is ‘a highly sacred place’ (at 22).

They also name 26 'important cultural sites'. These are plotted on a map annexed to the declaration. I note that of the 26 sites, approximately five are shown to be within the proposed licence area, with the remainder being scattered around the proposed licence area - there is no measuring key with the native title party map, but Tribunal mapping suggests the 26 sites extend out from the proposed licence to a distance of at least 50 kilometres east, and 20 kilometres or so north. There are several sites which fall outside of the proposed licence/native title party determination overlap, but the majority are within the overlap which is the subject of this determination.
The native title party state ‘the maps just show each place as a point – however on the ground it is more complicated. Some of the places are small but others are large areas’ (at 13). They state that some of the places are men’s sites and others are women’s sites with some being ‘spirit essence sites’, and provide details of those respective sites. They list a number of things which make the 26 sites important to the native title party and state that they are all connected and ‘not separate’ (at 15). They are associated with ‘one of our big sacred songs’ and traditional walking tracks (at 15). Some of the sites in a particular direction are associated with fresh and salt water springs.
They distinguish the area from the surrounding environment, and state ‘we are not opposed to exploration or mining in our country generally - only in our very special places. We have really good relationships with a number of exploration companies and we really value those relationships’ (at 40). They also refer to an area which they lease from the Aboriginal Lands Trust which is a camping site and which they state is on the proposed licence (known as Ngamamarta or Ngarlinymarra Pukurl - see [19] above)). They state they have Indigenous Land Use Agreements (ILUAs) with the pastoralists at Wallal, Mandora and Anna Plains ‘that allow us to access this area without impacting their pastoral activities’ (at 51). I note that these are the only pastoral leases which overlap the proposed licence. They write about the various cultural, social and community activities which are held on the proposed licence.
They also refer to a proposed cultural tourism business (at 57-58) but I have not taken this into account as previous decisions of the Tribunal have held that such a business is not necessarily a social and community activity of the native title party for the purposes of s 237 of the Act (see Miriuwung Gajerrong #1 at [26]-[37]). They refer to the sites within the proposed licence area, including one which ‘is one of the most important cultural places in all Nyangumarta country’ (at 67). They also refer to various springs in the area. Due to the evidence relating to the interconnectedness of some of the sites I also accept that there are some sites very near to the proposed licence which may be affected by certain activities on the proposed licence.
They refer to particular plants which grow in particular areas of the proposed licence and distinguish some of these in terms of their lack of availability in the environment away from the proposed licence. I accept that while not all of the plants described would be found only on the proposed licence, there appears to be at least one which is restricted to areas on the proposed licence because of the particular type of terrain (at 115). In relation to the animals which are stated to be on the proposed licence, there is nothing in the statutory declaration or supporting materials which indicates such animals could not be found elsewhere.
That the Nyangumarta reserve and the living area at Nyiyamarri Pukurl (within the reserve) is on the proposed licence supports that while there may not be a great deal of detail in the contentions and evidence about the community and social activities in terms of who specifically undertakes them, I accept that, from the way the statutory declaration is couched, many members of the native title community do access this particular area, and surrounds within the proposed licence, frequently for the purposes of various community and social activities, particularly spiritual and ceremonial ones, which may not be able to be done away from the proposed licence due to the significance of the area and the particular terrain. The statutory declaration also outlines some of the complexities of the salt and fresh water interactions on and near the proposed licence, in terms of the existence of various springs and waterways and their relationship with native title party stories and activities (for example at 19-21).
I note that the Tribunal’s overlap analysis does show the native title party has various ILUAs with the three local pastoralists and these are all registered ILUAs and overlap the proposed licence, some in significant portions. The various reports provided by the native title party show that the Saunders Spring area, which is approximately 22 kilometres to the south east of the proposed licence, is one of significance for the Department of Environment and Conservation but I was unable to draw any conclusions in relation to the significance to the native title party from the reports. There is also an article about Mandora Marsh which is a large area of wetlands, which the proposed licence is on or very near. The article confirms it is an important wetland area particularly for water birds, which is an issue raised in the native title party statutory declaration.
In relation to the article about the wetlands of the North Western Great Sandy Desert, this was a report to the Water and Rivers Commission and, once again, it provides information which confirms that the proposed licence area is on or near Eighty Mile Beach wetland and is an important wet land area for the general community, but there is nothing particular in that article in relation to the native title party. This is similar to the other reports which all confirm the area of the proposed licence and nearby is an important water bird and marsh area.
The native title party submissions largely restate and support the information in the statutory declaration from Mss. Dianne and Janet Stewart. They also add information such as, in relation to s 237 (a) of the Act, that the exploration activities are likely to occur within the vicinity of Nyiyamarri Pukurl and so interfere with the ability to plan future activities in the area because the grantee party activities may occur at unexpected times (at 12), and that ‘planning of on-country activities are particularly important for Nyangumarta People because they live mainly in Bidyadanga, Broome and Port Hedland...and often have limited periods of time to spend on-country’ (at 13).
In relation to s 237 (b) of the Act, the submissions detail the unique and sensitive nature of the Mandora Marsh system ‘that is not found anywhere else in Australia, or in Nyangumarta country’ (at 28). The submissions draw attention to various parts of the DVD evidence in support of the contention that there are sites or areas of particular significance both on and near the proposed licence, and that those sites near the proposed licence are in a close connection or nexus with the sites of particular significance on the proposed licence (for example at 29-32.) The native title party point to previous decisions of the Tribunal which have held that sites or areas of particular significance not located within the proposed licence area can be impacted upon by the grant of the proposed tenement provided there is a clear nexus between those activities and issues being considered under s 237 (see for example Silver). In Silver, Hon DP Sumner stated 'In reaching its determination the Tribunal is not restricted to considering the activities of a grantee party within the area of the proposed tenement. However, if it is suggested that off-site activities be taken into account, then there must be a clear nexus between those activities and issues being considered under section 237' (at [35]) and I accept those principles for the purpose of this determination in relation to both s 237(a) and s 237(b).
The submissions also point out that the Marsh area comprises a significant portion of the proposed licence area (at 37). The submissions highlight the Department of Environment and Conservation report from 2009 quoting a part of the report which states ‘the entire Marsh, including its unique mound springs is subject to mining exploration licences. Exploration would be very damaging to the Marsh environment’(at 39).
In relation to s 237 (c) of the Act, the native title party submissions indicate that it ‘is not aware of the activities proposed to be carried out by the grantee party’ (at 44). They refer to the Marsh area which ‘has a particularly complex and little understood hydrology with a sensitive environment dependant on a complex interaction of salt and fresh water subterranean systems’ (at 46). These submissions state that ‘the Department of Mining and Petroleums Guidelines for the protection of surface and ground water resources during exploration drilling are general in scope and do not provide sufficient protection for an area as unique, complex and sensitive as the Pilyarlkarra/Walyarta Marsh system' (at 50). In addition, the submissions note that the Government party's proposed conditions and endorsements, ‘do not contain any special measures for the protection of the hydrology system or of the Marsh environment’ (at 51).
The native title party were given leave to reply to the contentions of the grantee party and they have provided a DVD of Mr Wright's evidence, but unfortunately the audio is poor in places. This DVD is approximately three minutes in length and refers to the significance of Salt Creek and talks about a dreamtime area. Salt Creek is some 30 kilometres or so east of the proposed licence. The DVD is provided with a letter from the CEO of Nyangumarta Warrarn who states that Mr Wright was selected at a Directors’ meeting on 11 and 12 June to speak to the Tribunal directly on this matter.
The CEO’s letter states that ‘we are particularly concerned that the Grantee Party does not recognise that the [specific names deleted] marsh area is a highly significant site in its own right. For us, it is the richest and most culturally significant area of our country.’

The native title party legal representative has also provided contentions in reply to the grantee party submissions which state:

The grantee party Power-point presentation provided with the grantee party contentions is unsupported by material to indicate its relevance to this inquiry and to indicate the truth of the information contained therein.
The drill lines contained in a map within the Power-point (page four of the Power-point) shows that proposed drill lines do not indicate whether those are the current plans of the grantee party and ‘do not deal with other matters such as whether there will be an exploration camp and where it will be located, whether any water bores will be drilled, and if so where they will be located’ (at 8).

In relation to s 237(a) of the Act, the native title party reply states that:

It appears the grantee party drill lines are approximately one kilometre to the west and approximately eight kilometres to the east of the Nyangumarta reserve and the living area at Nyiyamarri Pukurl.
‘The Grantee Party has provided no evidence of any plan or intention to prevent interference with the Native Title Parties community activities in and around the area Nyiyamarri Pukurl.’ And they cite the case of Kimberly Quarry in support that the Tribunal may ‘draw an inference that there is no such plan or intention. Failure by the Grantee Party to lead evidence on how interference with community activities is to be avoided is a significant factor in determining the likelihood of such interference’ (at 12).
The Government party 'proposed condition 7 will not provide protection for the Nyangumarta Peoples interests in and around the Nyiyamarri Pukurl’ (at 13)
The drilling as outlined by the grantee party will be within the line of sight of the Reserve and ‘will likely have an impact on community activities being conducted in and near to the reserve’ (at 13).
Nyiyamarri Pukurl ‘is a focal point for Nyangumarta Peoples community activities’ (at 14) and confirm that this is the site where people ‘most often camp’ and ‘go hunting and collecting bush tucker in the surrounding area including right through the area of the proposed tenement’ (at 14).

In relation to s 237 (b) of the Act, the native title party asserts that the sites named in the initial native title party contentions are all connected and they are concerned that ‘the Grantee Party provides no basis or explanation for its rejection of this evidence’ (at 16). They also reaffirm their initial contentions that some of the sites outside the proposed licensed area actually extend into the proposed licensed area (at 17). The native title party states that the grantee party evidence suggests ‘that the most intensive area of proposed exploration is within the most culturally sensitive area...the Marsh area [and then goes on to outline where that area is within the proposed licence]’ (at 19). The native title party suggests on this basis the grantee party activities will interfere with native title party sites and areas of particular significance.
In relation to s 237 (c) of the Act, the native title party argue that the Marsh area is very sensitive and that grantee party evidence indicates they are likely to interfere with aquifer systems which will be likely to result in major disturbance to waters (at 22-23).

Submissions of the grantee party

Attached to the contentions of the grantee party is a copy of a Powerpoint slide presentation provided to the native title party in October 2012, which it is stated ‘outlines the proposed Mandora Exploration Project’ (at 1.11). I take it then that this outlines the current proposed intentions of the grantee party.
The grantee party outlines some of the negotiation history between the native title party and itself, states it has experience in working with native title parties and ‘in absence of sites registered under the Aboriginal Heritage Act understands...there may be other sites or areas of importance to the native title party with[in] the area’ (at 1.15).
In relation to s 237(a) of the Act, the grantee party states interference with community or social activities is unlikely because:

There will be no exploration activities on Reserve 21750 subject to consent of the Minister and in relation to Water Reserves 1530-1532, 16724 and Travellers Reserve 11784.
They will consider the interests of the native title party in respect of Reserve 21750.
They will comply with all endorsements and conditions.
The act must be substantial and not trivial in its impact on community and social activities (referring to Smith at [26]).

The grantee party also acknowledges the community and social activities which occur on the leased area of land referred to in the native title party statutory declaration (presumably a reference to Reserve 21750). No mention is made about such activities which may occur outside of the Reserve.

In relation to s 237(b) of the Act, the grantee party acknowledges there are no registered Aboriginal sites and they will act in accordance with the draft tenement endorsements and conditions and in relation to the AHA and associated regulations, and in particular notes contention 7 (at 3.3).

The grantee party states that, in their view, 25 of the 26 listed sites are located outside of the tenement application area, and as such they are unlikely to interfere with those sites (at 4). In addition:
·They reiterate the point about Reserve 21750 as made under their submission for s 237(a) (that is, there will be no exploration activities on Reserve 21750 subject to consent of the Minister);
·They state the evidence considered by the Tribunal should be evidence relating to sites on the proposed licence area only (at 4.4);
·They state their proposed drilling programme was submitted to the native title party and they attach their exploration proposal to their contentions, which includes:
oCultural heritage of proposed licence and drill lines
oShallow drilling (30 metres) at variable spacing along existing tracks
oReview results and then, if required:
§Infill drilling which ‘may require’ new drill lines but no vegetation clearing given the open terrain
§Air Core drill rig with 80mm diameter holes plugged and backfilled or filled on completion
oCompany personnel have cultural heritage training and experience operating in desert terrain within traditional lands. They state ‘all of the proposed drill lines are on existing fence lines or existing tracks’ (at 4.8).
oThey state ‘all reasonable attempts will be made to ensure meaningful consultation and negotiation with the Native Title Party (NTP) is facilitated to ensure sites of particular significance are not likely to be interfered with’ (at 4.9).
oThey will perform cultural heritage survey clearance with relevant members of the native title party subject to a heritage protection agreement and before any on ground exploration is conducted.
The grantee party contentions do not provide information about how they will get to and from the proposed drill lines, or whether any camps will exist and if so, where they might be situated. In the Powerpoint slide presentation, there are photos of camps and drill rigs, as well as equipment used for sampling excavations, but nothing in the contentions or slides about where this infrastructure is likely to be located, or how many people are likely to be involved and for how long. They do confirm what is apparent from the native title party DVD evidence and that is the area is flat, open terrain, so the line of sight is quite long.
In relation to s 237(c), the grantee party refer to their proposed exploration programme and that it will be conducted along existing fence lines or tracks, will consult with the native title party and perform cultural heritage survey clearance as outlined in their submissions (at 4.7 – 4.9). They also state they undertake to comply with the relevant regulatory regime, the draft tenement endorsements and conditions, and that their employees ‘are instructed to comply strictly with all environmental conditions practices and the like and to rehabilitate any disturbance made to the surface of the land’ (at 5.2-5.4). The exploration project brief, which they provide as an attachment to their contentions, indicate they will be exploring for heavy mineral sands and confirms that the drilling will be done along existing tracks. I do note that the Government party’s quick appraisal document shows that there are 15 minor roads and 80 tracks on the proposed licence.

Considering the Submissions and Evidence

Section 237(a) Community and Social Activities

The Government party notes that the overlap between the determined area and the proposed licence is approximately 88 per cent or 414.5 square kilometres. The Government party agree the Ngamamarta Aboriginal Community (presumably a reference to the Nyangumarta Aboriginal Reserve (Reserve 21750) and the living area at Nyiyamarri Pukurl) is located on the proposed licence. The Government party notes the grantee party’s contentions regarding proposed exploration activity and that ‘at least in the first year intends to drill only on existing fence lines or existing tracks’ (at 13). I agree with the Government party that in the absence of contrary evidence, the Tribunal should give weight to the range of things which the grantee party proposes to do as compared with what they could do. The issue is, however, the grantee party only outline their proposed exploration activities for their first and second ‘stages’ and there is no indication of whether that corresponds to years or what they may do in subsequent stages or years. As such, it is open for me to infer that the grantee party will exercise their rights under the Mining Act to the full extent (see Silver at [25]-[32]; Monadee at [17]), and I do make that inference in this matter.

The Government party states, in their view, the Tribunal can accept the joint statutory declaration provided by the native title party and the DVD evidence as ‘accurate statements of the beliefs and concerns of the said persons and that those beliefs and concerns are genuinely held’ (at 24). However, they go on to say that the native title party evidence is of less assistance in relation to the interference with community or social activities or significant sites.
In relation to s 237(a), the Government party point out that it is concerned with direct physical interference rather than spiritual dimensions isolated from physical activity. They also note that community or social activities of the native title party are already subject to pastoral leases. The Government party accepts that the native title party exercises rights and interests by visiting and camping at Reserve 21750, but note this covers only 0.08 square kilometres or less than 0.1 per cent of the proposed licence area. They state the evidence regarding hunting and collecting bush tucker is too general and there is no information on how many members of the community engage in those activities, how frequently or where on the proposed licence (at 43).
They also submit that the cultural tourism activities are not community or social activities because ‘they have not yet commenced, and further, because they are not activities conducted according to the traditional laws and customs of the Nyangumarta’ (at 44). I have already indicated I don’t accept that as an activity under s 237(a) of the Act.
The Government party contends there is not likely to be direct interference with community or social activities, should evidence demonstrate they are carried out, because:

The grantee party’s proposed exploration activities will be low impact and non intrusive
The grantee party is willing to enter into an RSHA type agreement with the native title party
The proposed licence is covered almost entirely by pastoral leases and subject to the lawful activities of the pastoralists
The grantee party activities are not likely to disrupt hunting and gathering or other activities particularly, ‘given the intentions of the Grantee Party to conduct those activities with cultural sensitivity and to maintain good relations with the Native Title Party’ (at 45d)
Hunting and exploration activity are capable of coexistence

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 at [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at [27]).
Hon C J Sumner in Tarlpa (at [121]) stated ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).' I note in this matter there have been no previous mining or exploration licences granted. The Government party suggests the underlying pastoral leases should be taken into account in this matter. However, native title party and DMP evidence and information shows that ILUAs exist with all three pastoralists overlapping the proposed licence, which militate against interference with pastoral activities, and by implication then, militate against interference with social and community activities of the native title party.
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose findings I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
In this matter, the grantee party outlines where its proposed drill lines will be placed in the 'first stage' of their activities. Some of these lines are relatively near the native title party community, in the south of the proposed licence. The native title party has provided evidence that members of the native title party come from at least three regional locations and use the community as a base to hunt and gather bush tucker in the proposed licence. They outline why this area is important in relation to social and community activities, and that given the terrain (which appears from DVD evidence and from grantee party contentions, to be very flat), the grantee party activities will be partly within the community line of sight if drilling is done along the proposed drill lines, even if those lines are along existing fence lines. The grantee party do not outline where their camp/s may be located, how many grantee party staff or contractors may be in the area, how frequently, or for what length of time. Nor is there any evidence about how many drill holes are likely to be drilled over what period.
The grantee party refers to respecting the activities on the community (Reserve) land, but there is little in relation to recognition that activities may be conducted off the community but near to it and still within the proposed licence, and little information apart from broad statements about what steps the grantee party may take so their activities do not intersect with the native title party social and community activities. There is also no information about what may occur under the grant after the first and second 'stage' of the exploration program.
I agree with the Government party contention that there is no basis for assuming the grantee party will not comply with the States regulatory regime, however, even in so complying, there may be inadvertent interference with the social and community activities of the native title party.
Taking all of the evidence into account, including: the nature and extent of activities on the proposed licence particularly outside but near to the Reserve area on the proposed licence: the existence of ILUA's with overlapping pastoral licences; and that there has been no previous exploration or mining tenements granted in the area of the proposed licence; I find that the act is likely to interfere directly with the carrying on of community and social activities under s 237(a).

Section 237(b) Sites of Particular Significance

The Government party states there is insufficient evidence from the native title party to establish which sites are within the proposed licence and they suggest in particular Waru, Mujarn [Mujarnu] or Karlyarl. The Government party state that Mujarn or Karlyarl can’t be considered areas of particular significance and, similarly with Waru, argues that the ‘entire area that a spirit is said to inhabit cannot be said to be a site of particular significance. If it were, given the prevalence and wide-ranging nature of such spirits it is unlikely that the expedited procedure would ever apply’ (at 55). It is not clear why the Government party has selected these three sites from the 26 outlined in the native title party statutory declaration.
In relation to another site, the Government party states there is insufficient evidence to determine that it is a burial site within the area of the proposed licence (at 56). They state that a further site is not sufficiently identified in terms of its particular significance, and that another has insufficient evidence to show it is of particular significance and propose similar contentions in relation to the ceremonial law ground mentioned (at 70) in the native title party’s statutory declaration. They state the grantee party is aware that in relation to the Reserve 21750 they can only mine there with the consent of the Minister. The Government party also state, in relation to the sites that are said to be outside the proposed licence by the native title party, they will not be interfered with by the grantee party’s exploration activity.
In relation to the marsh area or the Mandora Marsh system, the Government party states there is not sufficient specificity ‘concerning why the site as a whole is of particular significance’ (at 61). They state that the marsh area extends within an area of the proposed licence ‘and there is no evidence, beyond that relating to the sites discussed...that clearly demonstrates where sites of particular significance are located within the proposed tenement’ (at 61). In fact, the native title party have provided a detailed map annexed to the Stewarts’ statutory declaration, showing the sites referred to in the statutory declaration.
The Government party states that even if the marsh area is a unique and sensitive environment, this is not sufficient to establish that the whole area is a site of particular significance to the native title party. The Government party state the contention that the area is site rich (as asserted in native title party contentions at 33), ‘is of no forensic value to the Tribunal’ as it is not a ‘defined term or identifiable legal test’. In fact, the native title party contentions (at 33) state ‘the area is not just site rich. It is rich with sites of special significance’. As such, the native title party are not merely re-stating the ‘site rich’ argument dealt with in previous Tribunal decisions (see for example Geotech International)..
The Government party states that should there be any sites of particular significance, interference is unlikely because:

The grantee party is aware of the sites which have been the subject of evidence in this inquiry and has agreed to work with the native title party ‘at least through the RSHA, to avoid interfering with such sites’ (at 65a).
Most of the proposed exploration activities will be low impact and non obtrusive and any ground disturbing activities are intended to be conducted in a way that will not adversely impact on heritage sites and which will respect local Aboriginal concerns.
Concerns about environmental damage to the marsh are an overestimation of the activities of the grantee party.
Endorsements and conditions ‘are intended to prevent most of the native title party’s concerns arising and in particular concerns about environmental damage’ (at 65c).
The AHA and the regulatory regime are likely to prevent interference

In relation to each of these points in turn, I note that while the grantee party may be aware of the existence of the sites as referred to by the native title party in this matter, I take the native title party’s evidence that some of these sites are not merely a point but are rather a broader area and that they are inter-connected to some extent, particularly the sites to the north of the proposed licence. I accept that the sites to the north of the proposed licence, and those that extend off the proposed licence in an easterly direction, are interconnected to the extent that they satisfy the nexus test. I also accept that those sites are of particular significance to the native title party. In relation to the other sites referred to by the native title party, I accept they are important to the native title party, but agree with the Government party that there is insufficient evidence about many of those other sites to say they are sites of particular significance for the purpose of s 237(b) of the Act.
Given the nature and extent of the sites I have accepted are of particular significance, I conclude there is a real risk that such sites may inadvertently be interfered with by the grantee party, even with the best intentions. There have been no previous licences over the area, as outlined above at [17], and therefore no prior interference from mining activity. While the initial stages of exploration in this matter are stated to be restricted to existing tracks, there is no information about proposed activities after those stages or the likely timing and location of exploration activities. In relation to respecting local Aboriginal concerns, the grantee party indicates they will do so in relation to the community/reserve area in the south of the proposed licence, but there is little information about how the grantee party intends to conduct their activities in a way that will not adversely impact on heritage sites or sites of particular significance to the native title party in the area towards the north of the proposed licence. In relation to the argument that the native title parties concerns are an over-estimation of the activities of the grantee party, given the information provided by the grantee party, it is difficult to see how this could be an over-estimation when taking into account the full suite of rights the grantee party can do under s 66 of the Mining Act, as follows:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a)     to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)    to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)     to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d)    to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.

The Mining Regulations 1981 outline the amount of material able to be removed from the exploration licence:

20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.

In relation to the endorsements and conditions preventing ‘most’ of the native title party’s concerns, I note the native title party’s submissions that condition 7 will not provide protection, and I also note there is no particular evidence indicating how such endorsements and conditions will prevent those concerns. In relation to the AHA and the regulatory regime as noted above, even with the best intentions, given the nature and extent of the sites of particular significance and the nexus between the sites on the proposed licence and those off the proposed licence, inadvertent interference may occur.
In relation to the interaction between s 237(b) and the regulatory regime, I refer to the presumption of regularity in Walley at [50]-[51], whereby the regulatory regime is generally regarded as adequate to ensure that there is not likely to be interference with sites of particular significance. Each case must be considered individually, as the protective regime cannot be said to be adequate at all times to make the s 237(b) interference unlikely (see Maitland Parker at [35]). Also, the intentions of the grantee party with respect to the protection of Aboriginal sites are a relevant aspect of the predictive assessment of whether interference is likely (see Maitland Parker at [41]).
In Geotech International, Member O'Dea accepted it was ‘arguable that the nature of the interference to a site contemplated by s 237(b) of the Act may be wider than that protected by s 17 (particularly s 17(a)) of the AHA’ (at [40]). However, he found that, though the evidence established that the presence of strangers on country would impact the spiritual beings that live in it, the evidence was not tied to any specific site of particular significance. In the present matter, such evidence is tied to sites of particular significance. I adopt Member O'Dea's reasoning that 'In circumstances where the grantee party has not indicated how it intends to mitigate that risk, I am not satisfied that the AHA will be adequate to ensure that risk will not be realized' (at [38]).
While the Government party indicates the grantee party is aware of the existence of these sites, those sites are not readily identifiable by persons other than the native title party. In relation to the Government party imposing an RSHA condition, as Member O’Dea noted in Allarow (at [40]) the RSHA ‘only requires the conduct of surveys where ground disturbing activity is taking place’, and given the nature of the sites of particular significance in this matter, inadvertent interference is possible if the grantee party enters the area without guidance from the native title party.
As such, for the purposes of s 237(b) of the Act, I find there is a real risk of interference with sites of particular significance on this proposed licence.

Section 237(c) Major Interference with Land or Waters

The Government party in relation to s 237(c) states that no evidence has been provided that major disturbance to land or waters will be caused by drilling in the Mandora Marsh system. In particular, they state no evidence is provided ‘to suggest that the exploration activities proposed by the grantee party would interfere negatively with...the complex hydrology of the Mandora Marsh system' (at 72). The Government party indicate the Department of Water has a Mandora Management Zone over part of the proposed licence area and the management zone places restrictions on the extraction of ground water. The Government party states the proposed exploration does not include the sinking of wells or bores. I do note, however, that the grantee party does propose to drill holes for shallow (30 metres) and infill drilling, and that an air core drill rig will be used on the proposed licence. However, the evidence does not enable me to draw any conclusions in relation to the difference between ‘sinking of wells or bores’ and ‘shallow and infill drilling’.
The Government party notes that the report on Saunders Spring (an area identified by the native title party) indicates it is significantly outside the proposed licence area. The Government party also states that dewatering activities, which the report notes could cause potential damage to the marsh area, is not an activity applied to the grantee party (at 74-75).

The Government party refers to the native title party’s citation of the DMP’s Guidelines for the Protection of Surface and Groundwater Resources during Exploration Drilling and the native title party's claim that they do not provide sufficient protection for the Mandora Marsh system. The Government party states ‘the guidelines refer to the potential negative environmental consequences of exploratory drilling for groundwater aquifers...and wetlands...and outline procedures to be followed to avoid those consequences...’ (at 76). The Government party concludes on this point that ‘the native title party has not provided any evidence to suggest these measures will not be sufficient to prevent any negative environmental consequences from the programme provided by the grantee party’. As noted earlier in this determination, however, the grantee party has provided a programme only for the first and possibly the second stage of exploration and not beyond that, and there is little information from the grantee party about the nature and extent of the drilling they propose to conduct.
The Government party states that the grantee party’s activities are unlikely to involve major disturbance to the land because:

The grantee party’s activity will be low impact and non obtrusive
The State’s regulatory regime will apply
Conditions and endorsements will be applied to mitigate any such disturbance
The proposed licence is covered by pastoral lease and the grantee party’s activities ‘would be no more significant than the previous and continuing use of the area’ (at 77d).

The native title party reply to the grantee party (at 22) provides much detail to suggest that the grantee party may be conducting 'unconfined or single confined aquifers' processes. They also suggest that the marsh area ‘is characterised by a complex and little understood interaction between fresh and salt water aquifers’ (at 22). The native title party states that ‘at the absolute minimum the grant of the tenement should be conditional on the applicability of the procedure for ‘multi-layered aquifer systems’ as set out in... the Department of Mines and Petroleum’s Guidelines for the protection of surface and ground water resources during exploration drilling’ (at 22).
Evidence suggests there are significant sources of water in and around the area of the proposed licence which includes fresh and salt water. However, despite the information before me from the Government party and the native title party, there is little which provides clarification in respect of the grantee party’s activities and how they may or may not cause major disturbance in relation to s 237 (c) of the Act. To find that major disturbance is likely in this case would merely be speculative and not supported by the evidence as a whole.
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 (Little at [41]-[57]; Dann). 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 at 386-388 [74]-[79] and the cases cited therein).
I do not believe this matter falls into the category of exceptions, and find that, based on the available evidence, it is unlikely that major disturbance to land and waters will occur for the purposes of s 237(c) of the Act.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E45/4022 to Diatreme Resources Limited, is an act that does not attract the expedited procedure.

Helen Shurven
Member
30 October 2013