Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd

[2007] NNTTA 11

NATIONAL NATIVE TITLE TRIBUNAL

Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, [2007] NNTTA 11 (31 January 2007)

Application Nos:       WO06/248 and WO06/250

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

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IN THE MATTER of an inquiry into expedited procedure objection applications

Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin (WC99/11) (Wanjina/Wunggurr-Wilinggin native title party) (WO06/248)

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Wilfred Goonack and Others on behalf of Uunguu (WC99/35) (Uunguu native title party) (WO06/250)

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The State of Western Australia (Government party)

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Swancove Enterprises Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Hon C J Sumner, Deputy President

Place:    Perth
Date:     31 January 2007

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure applies

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Mining Act 1978 (WA), ss 20(5), 63

Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

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

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

Ward v Western Australia (1996) 69 FCR 208

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Counsel for the

native title parties:          Mr Robert Powrie, Kimberley Land Council

Representative of the

native title parties:          Mr Brendan Renkin, Kimberley Land Council

Representatives of the     Mr Rod Wahl, State Solicitor’s Office

Government party:         Mr Greg Abbott, Department of Industry and Resources

Representative of the      Ms Simone Permain
grantee party:                 Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

1. On 15 February 2006, the government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3523 (‘the proposed licence’) to Swancove Enterprises Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licence comprises an area of 232.28 square kilometres and is located 239 kilometres north-westerly of Wyndham in the Shire of Wyndham and East Kimberley. It is adjacent to Admiralty Gulf and Osborne Islands. 98.72 per cent of the proposed licence is overlapped by the Uunguu registered claim (WC99/35) and the remaining 1.28 per cent is overlapped by the Wanjina - Wunggurr Native Title Determination Area 1. The Wanjina Wunggurr Community were determined to hold native title on 27 August 2004 but to date no prescribed body corporate has been registered. In the circumstances the Tribunal does not regard the native title claim to have been finalised and the claim remains on the Register of Native Title Claims. Accordingly the Wanjina/Wunggurr-Wilinggin applicant for native title and registered native title claimant (Tribunal Claim No WC99/11) remains as the native title party in respect of proceedings under the right to negotiate provisions of the Act..

3. On 13 and 15 June 2006, objections to the expedited procedure statement were lodged with the Tribunal by two native title parties respectively:  Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin (‘the Wanjina/Wunggurr-Wilinggin native title party’) (WC99/11, objection WO06/248) and Wilfred Goonack and Others on behalf of Uunguu (‘the Uunguu native title party’) (WC99/35, objection WO06/250).

4. In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. On 22 August 2006, following a series of conferences, the grantee party reported that the terms of the native title parties’ Heritage Protection Agreement were not acceptable and requested that the matter proceed to inquiry in accordance with the original directions. On 4 September 2006, following a request from the native title parties and with the consent of the grantee and Government parties, the Tribunal amended the directions allowing parties a further six weeks to comply.

5. The Government party lodged its contentions and evidence by 22 November 2006 and the native title parties by 4 December 2006.  The grantee party indicated it would rely on the Government party's contentions.

6. On 7 December 2006, a Listing Hearing was conducted at which parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’, that is, without holding a hearing.  I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).

Legal principles

1. Section 237 of the Act provides:

‘237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].

Evidence in relation to the proposed act

1. Government party documentation establishes the underlying land tenure of the proposed licence area to be principally vacant crown land (97.50 per cent).  There is a small area of:

• Pastoral lease vested in Dunkeld Pastoral Co Pty Ltd (1.30 per cent overlap);

• Reserve 24705 for the use and benefit of Aborigines vested in the Aboriginal Land Trust (1.1 per cent overlap); and

• Department of Environment and Conservation Rainforest areas and monitoring site (less than 0.1 per cent overlap)

There are no Aboriginal communities in the vicinity of the proposed licence.

1. The documentation also indicates that, as of 11 November 2006, two pending exploration licence applications encroach upon the proposed licence at 4.3 and 18.6 per cent.  Seventeen ‘dead’ tenements granted for exploration are recorded within the proposed licence area, overlapping between 2.6 per cent and 48.3 per cent.  Two tenements were forfeited in 1965, one in 1970 and one in 1972.  Seven tenements were surrendered in 1994 and six between 2003-2004.

2. The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4).  Additional conditions imposed relate to:

• providing notification to the pastoral lessee, of the grant of the licences and of certain exploration activities (conditions 5–6); and

• seeking permission from the Minister for State Development prior to mining on Reserve 24705 (condition 7).

1. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.

• The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder.

• The 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.

• The land the subject of this licence affects rainforest areas and Rainforest Monitoring Site 28.  The Licensee is advised to contact the Department of Conservation and Land Management for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.

1. Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal one registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) located partly within the proposed licence area - Site ID 14780 – Mt Connor, painting site on the Permanent Register with Open Access and No restrictions. The site is located principally in the Wanjina/Wunggurr-Wilinggin native title party area.

2. The native title parties' submissions include the affidavit of Louis Karadada dated 1 November 2006 made in the following terms:

   ‘I, Louis Karadada, retired of Kalumburu, Kimberley Region of Western Australia, hereby affirm and say as follows:

   1.I am a senior Wunambal Gaambera law boss and have authority to speak on behalf of the Wunambal Gaambera (Uunguu) Native Title Applicants.

   2.I was born in the Prince Regent Sound before the Second World War. My parents moved and roamed north through Wunambal country south of The Admiralty Gulf (‘the Gulf’) and into Gaambera country winch lies adjacent to the Osbourn Islands, on the mainland.

   3.I am familiar with the area where the tenements for the proposed Exploration Licenses are located, as I have roamed and lived in those areas throughout my life, and I have been shown a map that shows where those tenement areas are.

   4.It has been explained to me and I understand that the proposed activities to be done by the mining company, is to go to these areas and to have a look around for minerals as well as taking samples and other activities which they may be permitted to do under the Exploration Licenses.

   5.The tenements fall within what is regarded as Gaambera country in terms of the northernmost tenement that runs down the Eastern Coast of the Gulf. The southern tenement runs west to east, in what is known as ‘Dora’ country or traditional Wunambal country. Nowadays, through intermarriage and living in places like Kalumburu, Wunambal and Gaambera consider themselves as one mob, and are one under the Wanjina Wunggur as the Uunguu people.

   6.Throughout both tenements, Wunambal Gaambera people go hunting for bush tucker. People still use spears to hunt. They hunt kangaroo, goanna and bush turkey. People look for bush fruits and for vegetables like yams, bush potato. They also go looking for bush honey.

   7.People also go fishing in the northern tenement along the coastline. They fish by using spears. They fish for various species of sea fish, turtle and dugong.

   8.I am worried that the mining company will damage or destroy the places where animals and fish live and will affect our hunting and fishing in those places.

   9.There is a lailai or dreaming place in the northern tenement on the coast adjacent to the Osbourn Islands. This is Basil Cheinmora’s dreaming place and is called Lunberre.

   10.There is also a significant site for local Gaambera people in the eastern side of the southern tenement, where an Aboriginal man named Danangal burnt the supplies and horses of Gardiya policeman as ‘payback’, who had left them behind to go to the Islands, where they killed two Aboriginal men.

   11.I am worried that the mining company will destroy or damage these places which are important to Wunambal and Gaambera people, by walking on the ground and disturbing their spiritual sacredness.

   12.I am worried that the activities of the mining company will damage the coastal areas near the Gulf, as well as the bush areas away from the coast. This would affect the community and social activities that Wunambal Gaambera people enjoy at the moment.

   13.Strangers to Wunambal and Gaambera country should come and speak to the senior law bosses for our people and get permission to come into or country. If they do not then bad things will happen to them and to us, the traditional owners, if they do not ask for permission in the right way.’

3. Mr Karadada’s evidence is uncontested and I accept it.  He is one of the persons named as part of the Uunguu native title party and is "a senior Wunambal Gaambera law boss".  I accept he has authority to speak on behalf of the Uunguu native title party.  There is no evidence from anyone with specific authority to speak on behalf of the Wanjina/Wunggurr-Wilinggin claimants.  However, this claim only overlaps the proposed licence area to a very small extent and the lack of evidence is of little significance.  The registered site overlaps both claim areas but as explained below there is no evidence from any of the native title parties in relation to it.  This matter has proceeded on the basis that it principally involves the Uunguu native title party.

Community or social activities (s 237(a))

1. 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 (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23]) and see cases cited below). 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 451, ([26])).  The assessment is also contextual taking account of other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas 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 parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]) particularly in the circumstances of this case where the proposed licence area overlaps the pastoral lease to a very limited extent.

3. I can infer from the fact that over the years a number of tenements for exploration have been granted over at least part of the proposed licence area that some exploration activity has taken place. However, the evidence does not suggest that this is an area of significant prior mining or exploration activity which will have already significantly interfered with the native title party’s community or social activities. The evidence of Mr Karadada suggests that the native title parties have enjoyed access to the area up to the present day. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. At paragraphs 6 and 7 of his affidavit, Mr Karadada deposes that "Wunambal Gaambera people go hunting for bush tucker. People still use spears to hunt. They hunt kangaroo, goanna and bush turkey. People look for bush fruits and for vegetables like yams, bush potato. They also go looking for bush honey. People also go fishing in the northern tenement along the coastline. They fish by using spears. They fish for various species of sea fish, turtle and dugong."

4. There are no established communities within or near the proposed licence area.  Kalumburu, where Mr Karadada resides, is some 50 kilometres to the east.  There is no evidence of the size of that community.  Mr Karadada’s evidence that the Uunguu native title party hunt and fish in the area of the proposed licence lacks specificity as, no information is given as to the frequency or numbers of persons involved in these activities.    

5. The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary.  While the total area of the licence will be very large (232.26 square kilometres) intensive ground disturbing exploration will only occur at any one time over a small area.  Further, the area of the Uunguu claim is 25,900.57 square kilometres, much larger than the proposed licence area thus making it less likely that exploration on the licence area will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licence (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). The same considerations apply to the Wanjina Wunggurr native title determination area which covers 63,148.64 square kilometres.

6. Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way.  This is such a case.  My finding is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.

1. The native title party contentions refer to the following statement by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) in support of its view that even if there is no direct physical interference, the mere existence of the grantee party on the proposed licence area in circumstances where there has been no negotiation or consultation between the native title party and grantee party is likely to result in direct interference with the carrying on of community or social activities even in the absence of direct physical interference:

   However, in my respectful opinion, there is no justification for requiring a direct interference with community life also to be a physical interference. Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. "Community life" might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life".

In 1998 following Ward, s 237(a) of the Act was amended. The Tribunal has dealt with the effect of the amendment which substituted the words ‘carrying on of the community or social activities’ for ‘community life’ in s 237(a). (See for example Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1. It is now settled law that the s 237(a) interference must have some negative consequences for the carrying on of community or social activities. Feelings of distress or concern about the activities are, whether of a spiritual nature or otherwise, not on their own sufficient.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions.  There is one site recorded on the Register kept under the Aboriginal Heritage Act 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 of the proposed licence or in the vicinity.  The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. Mr Karadada refers to two sites of significance in his affidavit:  Lunberre, "a lailai or dreaming place in the northern tenement on the coast adjacent to the Osbourn Islands" (paragraph 9) and "a significant site for local Gaambera people in the eastern side of the southern tenement, where an Aboriginal man named Danangal burnt the supplies and horses of Gardiya policemen as ‘payback’, who had left them behind to go to the Islands where they killed two Aboriginal men" (paragraph 10).  While Mr Karadada refers to the ‘northern tenement’ and the ‘southern tenement’ in his affidavit when in fact there is only one tenement the subject of these proceedings.  I am prepared to accept that he is in fact referring to the northern and southern part of the proposed licence area.  The evidence of Mr Karadada is not contested and I am satisfied that the two sites he refers to are of particular significance to the native title party in accordance with their traditions.  The registered site appears to be different from the two sites referred to by Mr Karadada.  While it is in the south-eastern section of the proposed licence area there is nothing to suggest it is related to or the same as the site referred to by Mr Karadada in para (10).  It is an open site and its nature does not allow an inference to be drawn that it is a site of special significance, although the fact there is a 10 kilometre buffer zone around it suggests it might be.  As there is no evidence about the registered site from them, I cannot make a positive finding that it is a site of particular significance to the native title parties, although the possibility remains that it is.

3. I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, more recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34].

4. The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]). However, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act.

5. The Tribunal, when engaging in the predictive assessment process can only take cognisance of the evidence with which it is provided. I note that in the Kimberley case referred to in para [25] (and some other matters) the detailed evidence adduced is more specific than the evidence submitted by the native title parties. On the evidence in this matter there is one registered site which may or may not be of special significance and two others of special significance which have been identified. The maps provided by the Government party also indicate that there are a considerable number of sites to the west of the southern portion of the proposed licence area, one of which abuts it at the south-western end. There is no evidence of the nature of these sites, but even assuming they are of particular significance to the native title party there is no reason to suspect that they will be interfered with by exploration confined to the subject area. The grantee party is aware of these sites as they are on the public record. It is also aware of three sites on the proposed licence area itself. There may be others. Knowledge of these sites mean that the grantee party will be unable to avail itself of the defence in s 62 of the Aboriginal Heritage Act 1972 (WA) if charged with an offence under it. Although there is no specific evidence from the grantee party about its attitude to compliance with the Aboriginal Heritage Act, there is no evidence to suggest that it will not act lawfully and in accordance with it.  The Tribunal was informed during its preliminary proceedings that there were negotiations between the parties about a heritage agreement to protect sites which were unsuccessful because the grantee party found the heritage agreement proposed by the native title parties unacceptable.  Nevertheless, I can infer from the fact of these negotiations that the grantee party is aware of its responsibilities to comply with the Aboriginal Heritage Act.  In order to ensure that it complies with the Aboriginal Heritage Act it will be necessary for the grantee party to consult with the native title party to ensure that it avoids the sites identified by the evidence and others which may exist.  I am satisfied that the presumption of regularity is applicable in this matter and that interference with sites of particular significance from the exploration activity is unlikely.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgement 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 & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]–[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).

2. The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land 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 [2005] NNTTA 1; (2005) 190 FLR 362 at [75]-[79] and the cases cited therein).

3. In this matter there has been no evidence provided to suggest that there are any exceptional factors leading to a finding that major disturbance is likely.  The area has been the subject of some exploration activities about which there has been no complaint and there are the standard conditions which will limit the likelihood that the land and waters will be disturbed in a major way.

Findings in respect of Reserve 24705 for the use and benefit of Aborigines

1. Although Reserve 24705 for the use and benefit of Aborigines only overlaps the proposed licence area to a very small extent (1.1 per cent) and it is not of major significance in these proceedings, I find, consistently with previous Tribunal decisions that the expedited procedure would be attracted over this area irrespective of the evidence relating to the s 237 factors. The Tribunal has found that the Government party’s regulatory regime in relation to Aboriginal Reserve Land means that access to the land will not be given unless agreement with a native title party has been reached (see for example most recently Cheinmora at [21]-[24]) and that the expedited procedure is attracted because that agreement is likely to ensure that the interferences and disturbances referred to in s 237 do not occur.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E80/3523 to Swancove Enterprises Pty Ltd is an act attracting the expedited procedure.

Hon CJ Sumner
Deputy President
31 January 2007