Papertalk and Others on behalf of Mullewa Wadjari v Harold John Stokes

[2014] NNTTA 19

NATIONAL NATIVE TITLE TRIBUNAL

Papertalk and Others on behalf of Mullewa Wadjari v Harold John Stokes and Another

[2014] NNTTA 19 (20 February 2014)

Application No:              WO2013/0533

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Leedham Papertalk and Others on behalf of Mullewa Wadjari (WC1996/093) (native title party)

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The State of Western Australia (Government party)

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Harold John Stokes (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  20 February 2014

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

Legislation:  Native Title Act 1993 (Cth) ss 29, 31, 146, 237

Aboriginal Heritage Act 1972 (WA) ss 5, 16, 17, 18

Mining Act 1978 (WA) s 48

Rights in Water and Irrigation Act 1914 (WA)

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 ('Cherel v Western Australia')

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

Lungunan and Others on behalf of the Nyikina and Mangala People/Karajarri Traditional Lands Association (Aboriginal Corporation)Western Australia/Geotech International Pty Ltd [2013] NNTTA 129 (‘Lungunan v Geotech International’)

Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd, [2013] NNTTA 86 (‘Cosmos v Croydon Gold’)

Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tullock v Bushwin’)

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources No 2’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)

Maitland Parker & Ors/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Parker v Iron Duyfken’)

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)

Representatives of the     Ms Lesleigh Bower, Corser & Corser Lawyers

native title party

Representatives of the     Ms Shelley Moore, State Solicitor’s Office

Government party          Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the     Ms Tracey Browning, Global Exploration Tenement Services
grantee party                  

REASONS FOR DETERMINATION

1. On 27 March 2013, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence P59/2013 (‘the proposed licence’) to Harold John Stokes (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).

2. According to the notice:

   ·the proposed licence is approximately 28.83 hectares in size;

   ·the proposed licence is located 1 kilometre north west of Yalgoo, in the Shire of Yalgoo; and

   ·the native title party had until 27 July 2013 to lodge an objection application against the expedited procedure statement for the proposed licence. 

3. The Mullewa Wadjari native title claim (WC1996/093), registered from 19 August 1996 (‘the native title party’), wholly overlaps the proposed licence. On 27 May 2013, an objection application was lodged with the Tribunal by Leedham Papertalk and others on behalf of the native title party.  The registered native title claim of the Widi Mob (WC1997/072) also wholly overlaps the proposed licence, but did not lodge an objection application.

4. On 6 January 2014, I was appointed by National Native Title Tribunal President Raelene Webb QC, as the Member for the purpose of conducting the inquiry.

5. After review of the native title preferred agreement, the grantee party indicated on 14 September 2013 that he wished to execute a Regional Standard Heritage Agreement (‘RSHA’) and for the matter proceed to inquiry.

6. Directions were issued by the Tribunal and in compliance with those:

   ·DMP provided documents to the Tribunal and other parties on behalf of the Government party on 14 October 2013 (amended on 12 February 2014 due to a typographical error in the draft conditions);

   ·the native title party provided a statement of contentions on 28 October 2013 (amended on 12 February 2014 due to some formatting issues); and

   ·the State Solicitor’s Office ('SSO') provided the Government party’s statement of contentions in response to the native title party contentions on 25 November 2013.

7. The grantee party did not file any contentions, nor did it indicate whether or not it was relying on the Government party contentions. On that basis, I have submissions only from two parties to consider in this matter.

8. A listing hearing was scheduled for 12 December 2013, however, all parties agreed to vacate and proceed to inquiry on the papers.  On 8 January 2014 the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination.  No party objected to the use of the map.

Legal principles

1. Section 237 of the Act provides:

   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.

2. In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi v FMG at [15]-[21].

Evidence and information provided about the proposed act

1. I note at the outset of this determination that there was no affidavit evidence provided by any party to support contentions.  While there is no burden of proof in such matters, it is certainly helpful if facts within a parties knowledge are lead by way of evidence, to assist the Tribunal in its decision making.  In this matter, the native title party has provided no affidavit evidence, and the grantee party has provided no information or evidence at all.  As such, it is a matter where I have limited information and evidence upon which to base a decision.

Government party

1. The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Aboriginal Affairs (DAA) (previously known as Department of Indigenous Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; a tengraph quick appraisal; and a copy of a statutory declaration by the agent of the grantee party stating a RSHA has been executed and sent to the Yamatji Marlpa Aboriginal Corporation (‘YMAC’) in relation to the Widi Mob.

2. I note the underlying land tenure of the proposed licence to be as follows:

   • MZ/2, Mineralisation Zone, Non Section 57(2aa) at 100 per cent;

   • Groundwater Area 17, Gascoyne designated under the Rights in Water and Irrigation Act 1914 (WA), managed by Department of Water at 100 per cent;

   • Crown Reserve (Common) 6936, managed by the Shire of Yalgoo at 98.4 per cent; and

   • Yalgoo town site boundary at 1.6 per cent.

3. The quick appraisal indicates the proposed licence was overlapped by: three previously granted exploration licences between 1993 and 2008 at 100 per cent each, all now surrendered or expired; 37 gold mining leases granted between 1893 and 1981 at a range of 0.2 per cent to 35.1 per cent, all now surrendered, cancelled, forfeited or null and void; three mining leases granted between 1989 and 1992 at a range of 1.7 per cent to 100 per cent, all now surrendered or forfeited; three mineral claims granted in 1983 at a range of 0.7 per cent to 1.7 per cent, all now surrendered or cancelled; and six prospecting licences granted between 1984 and 2008 at a range of 0.3 per cent to 100 per cent, all now surrendered, expired or forfeited.

4. The quick appraisal document shows the services affected in relation to P59/2013 are: one emerald reward deposit; seven historic mine sites; 20 historic abandoned mine sites; and two tracks.

5. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows there are no DAA recorded sites within the proposed licence, and one 'other heritage place':

   ·     Site ID 21138 – open access – no gender restrictions – Old Yalgoo Aboriginal Reserve – historical - camp

6. The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Bushwin at [11]). The following additional condition will also be imposed on the proposed licence:

   5.   Access to the surface of land within in Yalgoo Townsite for mining purposes being subject to the approval of the local Authority or relevant reserve vestees, and mining activities within the first 100 metres below the surface of the land being limited to such mining activities as may be approved by the Executive Director, Environment Division, DMP.

7. 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 the to the provisions of the Aboriginal Heritage Act 1972 and any related 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.

   In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

   3.   The Licensee attention is drawn to the provisions of the:

   ·     Waterways Conservation Act, 1976

   · Rights in Water and Irrigation Act, 1914

   ·     Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·     Country Areas Water Supply Act, 1947

   · Water Agencies (Powers) Act 1984

   · Water Resources Legislation Amendment Act 2007

4.   The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

5.   The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

6.   The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

In respect to Waterways the following endorsement applies:

7.   Advice shall be sought form the DoW if proposing any within a defined waterway and within a lateral distance of:

·     50 metres from the outer-most water dependent vegetation of any perennial waterway; and

·     30 metres from the outer-most water dependent vegetation of any seasonal waterway.

In respect to Proclaimed Ground Water Areas the following endorsement applies:

8.   The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.

Grantee party

1. The grantee party has not filed any submissions or evidence, and has not requested any extension of time in which to do so.

Native title party

s 237 (a)

1. The contentions addressing the native title party’s community or social activities are contained in their paragraphs 9 to 16. They refer (at 9) to the native title party’s regular four-day ‘hunting weekends’ within the proposed licence, as well as on the lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo.

2. The contentions note the following details regarding the native title party’s community and social activities during the course of ‘hunting weekends’:

   ·‘The hunting weekends involve activities such as foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children’ (at 10);

   ·‘The hunting weekends occur on an almost weekly basis (if weather permits). Although known as “hunting weekends” amongst the Mullewa Wadjari community, the hunting trips do not always occur on the same days of the week nor do they always include Saturday and Sunday’ (at 11);

   ·‘Generally around 90% of the Mullewa Wadjari community members attend the weekly hunting weekends, which usually amounts to in excess of 100 people traveling in more than twenty 4WD vehicles’ (at 11);

   · ‘During the hunting weekends, the community members hunt for native fauna such as kangaroos, emus, wild turkeys, goannas, blue tongue lizards and snakes. Occasionally, the members also hunt non-native species such as goats and rabbits’ (at 12);

   ·‘A large proportion of the meats and foods gained from the hunting weekends will be brought back to the Mullewa Wadjari community where they will be shared amongst the members, including those who could not attend the hunting trip’ (at 13);

   ·‘Hunted meats are also used to trade for commodities such as petrol and diesel which is used by members of the community’ (at 14);

   ·‘During the hunting weekends, adults within the Native Title Party will teach the children traditional knowledge’ (including travelling to significant sites, boundaries of culturally restricted areas, location of bush medicine, food and water, cooking techniques, use of tools and reading the sky) (at 15).

3. The native title party contends (at 16) that if prospecting activities such as those contemplated by s 48 of the Mining Act are carried out on the proposed licence, there is a real chance or risk that such activities will interfere directly with the carrying on of the native title party’s community and social activities, in particular:

   ·hunting, gathering, fishing, camping and the teaching of laws and customs to children;

   ·the balance of wildlife and food sources around the proposed licence which will directly interfere with hunting, foraging and fishing activities; and

   ·if land on the proposed licence is damaged, the native title party will have to travel further and further out in order to hunt and gather food and resources.

s 237(b)

1. The contentions addressing sites or areas of particular significance (outlined at 17-24), in summary state:

   ·The fact that the DAA Register does not record any sites does not mean that sites do not exist on the proposed licence and a registered artefact scatter site (‘Yalgoo’) is located to the north-east of the boundary of the proposed licence (at 17);

   ·The ‘Old Yalgoo Aboriginal Reserve’ is recorded as an ‘Other Heritage Place’ on the proposed licence and ‘was used as a place of worship, to conduct ceremonies, to trade goods, and as [a] meeting ground and gathering place for the Mullewa Wadjari people’ (at 18);

   ·There is a traditional law requiring the native title party to care for and protect places where its ancestors have lived, and hold ‘a strong desire to uphold this duty of protection’ (at 19);

   ·There are two minor watercourses located in the proposed licence which support animals and plants. The native title party believes that after death, ‘the spirits of the deceased travel into such watercourses and eventually settle in the land itself’, so it is important ‘that these water bodies are not damaged or disturbed’ (at 21);

   ·The watercourses ‘form a vital part of the Native Title Party’s dreamtime stories’, including the depiction of a man-like spirit snake named Bimbara. ‘The native title party’s belief system teaches that the descendants of these spirits will experience misfortune, ill health and possibly death’ if a watercourse or waterhole housing the Bimbara is disturbed (at 22);

   ·The nature of some sites within the proposed licence area are such that even non ground disturbing work may cause interference with sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the Act (at 22);

   ·Despite the protections afforded by the Aboriginal Heritage Act, ‘suspected damage as a result of mining activities has already materialised at the Tallering Peak site’, which falls within the native title party’s claim area. The Native Title Party believes in that situation, ‘since it failed to fulfil its duty to protect the sacred site, that the death of several members of the Native Title Party was the result of that failure’ (at 23); and

   ·The significant sites existing within the proposed licence cannot be adequately protected by the Aboriginal Heritage Act because their locations are unknown to the grantee party (at 24).

s 237(c)

1. In addressing the issue of major disturbance of land or waters, the contentions state (at 25) that regard should be had to:

   ·the proximity of the proposed licence to the Registered Site identified as ‘Yalgoo’ which is of historical significance to the Mullewa Wadjari people;

   ·the existence of a registered Heritage Place on the proposed licence, ‘Old Yalgoo Aboriginal Reserve’, used as a place to conduct various activities by the Mullewa Wadjari people; and

   ·the importance of the watercourses in the proposed licence and their significance in Dreamtime stories.

Considering the Evidence in context of s 237 of the Act

Community or social activities (s 237(a))

1. The Tribunal has accepted 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 v Northern Territory at [29]-[30], Member Sosso (whose approach 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.

1. The grantee party has not submitted any contentions in these proceedings and has not given any indication of its proposed activities. The Government party note (at 16) that in the absence of any contentions from the grantee party, ‘the Tribunal must assume that the Grantee Party intends to exercise the full suite of rights conferred by...the Mining Act’.  I do make that assumption.

2. The Government party contentions (at 19-20) state that the grantee party offered to enter into a RSHA with the overlapping Widi Mob and the agreement was sent to the Yamatji Marlpa Aboriginal Corporation (‘YMAC’) on 14 January 2013. A statutory declaration of the grantee party’s agent is attached to support this contention.  The Government party note that YMAC is not the representative for the Widi Mob, so they may not have received the RSHA offer.  In addition, the Widi Mob is not the native title party for the purposes of this expedited procedure objection.  Government party contentions do not indicate whether it has offered to impose an RSHA condition on the grant of the proposed licence, so I can only assume that such is not a condition in relation to this matter.

3. The native title party’s contentions in relation to s 237(a) (at 9-16), focus on the community and social activity of ‘hunting weekends’, which they assert are conducted regularly ‘within close proximity to the Tenement areas well as lands bounded by Geraldton, Nerramyne, Yuin Station and Yalgoo’. The ‘hunting weekends’ are said to include ‘foraging, hunting and gathering, fishing, trading, camping, attending law ceremonies and the teaching of laws and customs to children’. The native title party assert (at 11-12) that the ‘hunting weekends occur almost on a weekly basis’ and involve ‘around 90% of Mullewa Wadjari local community members’ amounting to approximately 100 people. The content of these contentions are outlined in detail above at [24]-[27].

4. The native title party states (at 16) there is a risk the activities mentioned will be directly interfered with if exploration activities such as those contemplated by s 48 of the Mining Act are carried out on the proposed licence. The Government party state in its contentions (at 25) that the native title party’s statements are not evidence but appear to be factual assertions, unsupported by any affidavit evidence or similar, and should not be relied on by the Tribunal. In relation to the ‘hunting weekends’ the Government party state that the native title party contentions do not specify whether the described activities are undertaken ‘within, or merely in close proximity to’ the proposed licence and argue the proposed licence ‘occupies only a small portion of the lands referred to’ in the native title party contentions (at 45).  I agree that the native title party contentions are limited in this respect, and there is no affidavit evidence or statements in support of the relationship of these activities with the proposed licence.

5. To the extent the Tribunal accepts information from the native title party demonstrates its members carry out community and social activities, the Government party submits there is not likely to be direct interference because, in summary:

   ·The native title party contentions do not indicate how the proposed prospecting activities will interfere with the described hunting activities (at 46(a));

   ·The grantee party has indicated its willingness (at 46(b)) to enter into an 'RSHA type agreement' with the Widi Mob native title claimants (who also overlaps this proposed licence). The contentions also state the grantee party was ‘willing to enter into a similar agreement with the Native Title Party’ (but I note that no evidence is provided to support this);

   ·The area of the proposed licence has been subject to prior mineral exploration, and these activities have affected and continue to affect the extent to which community and social activities can be carried out in the relevant area (at 46(c));

   ·The proposed licence is almost completely covered by a Crown reserve and none of the proposed licence is currently unallocated crown land, so the native title party’s carrying on of community and social activities has been subject to, or co-existent with, all of these lawful activities for a significant period of time. Interests in relation to the right to control use of and access to the relevant land are likely to have been extinguished (at 46(d));

   ·There are no Aboriginal communities within the area of the proposed licence (at 46(e));

   ·The activities planned by the grantee party do not appear likely to have any real disruptive effect upon hunting or travelling in the proposed licence, ‘particularly in circumstances where the Native Title Party has not provided any evidence as to whether those activities are carried on within the proposed tenement area...’ (at 46(f));

   ·Hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting (at 46(g));

   ·It is difficult to envisage how mineral exploration activity could cause substantive interference to the native title party’s ability to access or travel across the area of the proposed licence (at 46(h)).

6. Certainly previous exploration licences existed on the proposed licence area, as well as almost 100 years of gold mining leases, and over 20 years of previous prospecting leases.  In addition, I note the quick appraisal shows that over the 28.83 hectares of land comprising the proposed licence, there are 20 abandoned mine sites.  As such, there is likely to have been significant levels of activity on the proposed licence greater than that allowed by a prospecting lease.

7. In reaching a conclusion in relation to s 237(a) of the Act, I have taken into account the mitigating factors outlined by the Government party (at [30] above), particularly that Crown reserve is likely to have affected, and is likely to continue to affect, the community or social activities of the native title party, and the significant previous mining or exploration activity which has likely occurred. That is, the carrying on of the community and social activities described in the native title party’s contentions has been, and is currently subject to the lawful activities conducted pursuant to explorers and miners, and the Crown reserve in the area of the proposed licence. While there is no specific evidence of the degree of such interference, the Tribunal is entitled to have regard to this context in assessing the likelihood of interference by the grant of the proposed licence (see Tullock v Bushwin at [122]).

8. In addition, the total area of the Mullewa Wadjari claim is approximately 35,621 square kilometres.  The grantee party’s proposed activities within the proposed licence area in the context of the size of the native title claim makes it less likely that exploration activity will interfere with the community or social activities described by the native title party, even should that activity be to the full extent allowed under the grant.

9. In the circumstances, taking into account the evidence available, I conclude that there would not likely to be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, special or more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DAA documentation that there are no registered sites within the overlap between the claim and the proposed licence area. There is one 'other heritage site' on the proposed licence. However, this does not mean there may not be other sites or areas of particular significance to the native title party 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.

2. The native title party contentions directed at s 237(b) of the Act, as outlined in detail at [27] above, refer to three sites: ‘Yalgoo’ (a registered site located outside of the proposed licence); ‘Old Yalgoo Aboriginal Reserve’ (a DAA recorded 'other heritage place' listed as being a camp); and two watercourses (particularly in relation to the dreamtime stories and beliefs relating to the Bimbara spirit snake).

3. I note that the ‘Yalgoo’ registered site is located approximately 1.5 kilometres east of the proposed licence. The DAA Register of Sites confirms ‘Old Yalgoo Aboriginal Reserve’ is located on the proposed licence and covers approximately two thirds of the area. The native title party does not provide any information on the precise location of the two watercourses other than that they flow within the proposed licence.

4. The native title party argue (at 22) that if the grantee party is granted the legal right to carry out exploration activities in the tenement area without negotiation and consultation with the native title party, there is a real risk of interference with significant sites in the area, as well as damage to items left behind by ancestors of the native title party. It states that the nature of some sites within the tenement area are such that even non ground disturbing work may cause interference with the sites to a level that is distressing to the native title party, and culturally inappropriate to a degree that would constitute interference for the purposes of s 237(b) of the NTA.

5. The Government party contentions state (at 23) that to the extent members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the relevant regulatory regime. Rather, the evidence must demonstrate that the particular grantee, undertaking the particular act, will not comply with a regulatory regime (at 24). I agree with the Government party contentions (at 22) that there is no evidence to suggest that the grantee party will act in breach of the relevant statute law, regulations or conditions imposed upon it.

6. The Government party submits in its contentions (at 59) that the ‘Yalgoo’ site, ‘by the admission of the native title party’, is not located on the proposed licence and that no evidence has been provided showing the site is interconnected with sites on the proposed licence or that the activities to be undertaken on the proposed licence will impact the site. In relation to the ‘Old Yalgoo Aboriginal Reserve’, the Government party accepts that the site is located on the proposed licence but does not accept there is evidence to support a finding that the site is of particular significance (at 60). The Government party submits that the native title party has not provided evidence in relation to the location of the two watercourses. They go on to say that even if the watercourses are located on the proposed licence, there is no evidence the site is of particular significance (at 60).

7. The Government party response states that in the event of there being any areas or sites of significance within the proposed tenement, interference with those areas is not likely for the following reasons:

   ·There is no evidence that the ‘Yalgoo’ site and the two watercourses referred to in the native title party’s contentions (outlined at [27] above) extend into the area of the proposed licence (at 64(a));

   ·To the extent that there are any ‘sites of particular significance’, the grantee party has offered to enter into a RSHA with the Widi Mob to avoid interfering with such sites (at 64(b));

   ·The concerns expressed about damage to significant sites, such as places where ancestors have lived or carried out ceremonies, reflect an overestimation of the activities of the grantee party in the event the proposed licence is granted (at 64(c));

   ·The general assertion that any level of ground-disturbing activity will disturb the significant sites is insufficient to disapply the expedited procedure (at 64(d));

   ·Evidence about concerns regarding disturbances to ancestral spirits reflects a general spiritual concern to which s 237(b) does not apply (at 64(e));

   ·The area of the proposed licence has been subject to prior mineral exploration, and is largely covered by a crown reserve, so the activities contemplated by the grantee party would be the same or not more significant than the previous use of the area (at 64(f)); and

   ·Pursuant to the Aboriginal Heritage Act 1972 (‘AHA’), any ‘Aboriginal site’ (as defined in s 5 AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case is likely to involve the native title party) (at 64(g)).

8. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker v Iron Duyfken at [39]; Cheinmora v Heron at [43]). I note the native title party’s assertion that there is a likelihood of sites significant to the native title party existing within the proposed licence and surrounds. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or that there will be a likelihood of interference, even were the grantee party exercise their full suite of rights.

9. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Cherel v Western Australia (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with sites of particular significance found to exist. For the sites said to be located on or near the proposed licence, I consider the native title party submissions indicate there are areas of significance, but does not demonstrate ‘particular’ significance for the purposes of s 237(b) of the Act. I am satisfied that the AHA and its associated processes, and the endorsements and conditions to be placed on the proposed licence are likely to prevent interference with any area or site of ‘particular significance’. I also note the previous likely activities on the proposed licence (including gold mining as well as exploration activities), and that this grant will be for prospecting activities, which are generally regarded to be less invasive than mining or exploration activities.

10. Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.

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

1. The task of the Tribunal in relation to s 237(c) of the Act is to undertake a predictive assessment as to whether there is a real chance or risk of major disturbance to land and waters. The relevant disturbance is understood to be a significant, direct physical disturbance to the land or waters concerned (see Cosmos v Croydon Gold at [29]; Lungunan v Geotech International at [50]). The term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including Aboriginal people. It also requires consideration not only of the relevant future act but also of the effect of the rights created by it (see Little v Oriole Resources No 2 at [41]).

2. The native title party contentions directed at s 237(c) of the Act (at 25) are that the Tribunal should have regard to: the proximity of the proposed licence to the ‘Yalgoo’ registered site (near the proposed licence); the existence of the ‘Old Yalgoo Aboriginal Reserve’ on the proposed licence, and its use as a place to trade goods, worship and as a meeting ground; and the importance of the watercourses which flow within the proposed licence and their significance in Dreamtime stories.

3. The Government party contentions state that the grant of the proposed licence is not likely to involve major disturbance relevant to s 237(c) of the Act because:

   ·The exercise of rights conferred by the exploration licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment (at 73(a));

   ·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration (at 73(b));

   ·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and it is almost completely covered by two exploration licences and a Crown reserve, so the activities contemplated by the grantee party would be the same as, or no more significant than, previous and continuing use of the area (at 73(c)); and

   ·It does not appear the area of the proposed licence has any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters (at 73(d)).

I note the Government party refer to the grant of an exploration licence in this section of their contentions. I take this to be a typographical error and should be read as prospecting licence.

1. In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:

   ·Over 98 per cent of the proposed licence area is covered by a Crown reserve, where disturbance has already and will continue to be carried out;

   ·The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;

   ·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);

   ·There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that the grantee’s exploration activities would result in major disturbance to land or waters; and

   ·There is no evidence the grantee party is likely to fail to comply with the regulatory regime.

2. Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur in this matter.

Determination

1. The determination of the Tribunal is that the act, namely the grant of prospecting licence P59/2013 to Harold John Stokes, is an act attracting the expedited procedure.

Helen Shurven
Member
20 February 2014