Peggy Patrick and Others on behalf of Yurriyangem Taam v WA Mining Resources Pty Ltd and Another
[2015] NNTTA 25
•10 July 2015
NATIONAL NATIVE TITLE TRIBUNAL
Peggy Patrick and Others on behalf of Yurriyangem Taam v WA Mining Resources Pty Ltd and Another [2015] NNTTA 25 (10 July 2015)
Application No: WO2014/0499
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
Peggy Patrick and others on behalf of Yurriyangem Taam (WC2010/013) (native title party)
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WA Mining Resources Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 10 July 2015Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether community or social activities are carried on by the native title holders – whether the licence is likely to interfere directly with the carrying on of the community or social activities – whether there are areas or sites of particular significance to the native title holders
Legislation: Native Title Act 1993 (Cth)
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Cases:Balanggarra Aboriginal Corporation RNTBC v Bar Resources Pty Ltd [2014] NNTTA 62 (‘BAC v Bar Resources’)
Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd [2014] NNTTA 32 (‘Sturt v Baracus’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v Zenith Minerals Ltd [2012] NNTTA 77 (‘MNR v Zenith Minerals’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert v Teck Australia’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Freddie v Asia Investment Corporation’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘YAC v FMG Pilbara’)
Representatives of the Ms Julia Smith, Kimberley Land Council
native title party Ms Angela Booth, Kimberley Land Council
Representative of the Mr Hong-Jim Saw, Hetherington Exploration & Mining Title
grantee party Services Pty LtdRepresentatives of the Mr Matthew Pudovskis, State Solicitor’s Office
Government party Ms Bethany Conway, Department of Mines and Petroleum
REASONS FOR DETERMINATION
[1]This decision must answer the question of whether the State Government of Western Australia can grant exploration licence E80/4852 to WA Mining Resources Pty Ltd, without negotiations with the Yurriyangem Taam native title claimants. The licence covers an area of approximately 70 square kilometres, about 142 kilometres south-west of Wyndham in the Kimberley region of Western Australia, and is situated entirely within the boundaries of the Yurriyangem Taam native title claim. The State has asserted the grant can be made without such negotiations, as they have included an expedited procedure statement in the public advertisement of the licence.
[2]To answer the question of whether the licence can be granted in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry in this matter. No party requested a hearing, and I am satisfied the matter can be determined on the basis of the written materials provided by the parties.
[3]The inclusion of the expedited procedure statement means the licence can be granted without going through the normal negotiation procedure required under the Native Title Act 1993 (Cth) unless: a) persons who hold or claim native title to the area, and whose names are entered on the Register of Native Title Claims or the National Native Title Register, object; and b) if the objection is not withdrawn or dismissed, I determine the licence is not an act attracting the expedited procedure.
[4]The persons whose names appear in the entry on the Register of Native Title Claims for the Yurriyangem Taam native title claim have objected to the application of the expedited procedure to grant of the licence. The claim encompasses an area roughly coextensive with the Durack Range, extending south-west from Lake Argyle towards Fitzroy Crossing. The licence is located in the north-eastern portion of the claim and covers a section of the Bedford stock route running parallel with the Chamberlain River.
[5]I provided parties with a copy of a map of the licence and surrounding areas produced by the Tribunal’s Geospatial Unit, to be used in the inquiry. No party objected to use of the map.
[6]A decision that the expedited procedure should apply to a grant means WA Mining Resources can proceed to explore on the licence without negotiating with the Yurriyangem Taam. A decision that the expedited procedure does not apply means WA Mining Resources must negotiate in good faith with the Yurriyangem Taam prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
[7]The Tribunal must determine whether the grant of the licence is an act attracting the expedited procedure by reference to the following criteria:
(a)Is the grant likely to interfere directly with the community or social activities of the Yurriyangem Taam?
(b)Is the grant likely to interfere with areas or sites of particular significance according to the traditions of the Yurriyangem Taam?
(c)Is the grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
[8]I must answer these questions by making a predictive assessment of whether the grant of the licence is likely to have those effects. In performing this assessment, I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
[9]The Yurriyangem Taam do not contend the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters. The State submits there is nothing in the nature of the licence that would likely result in any major disturbance to land or waters. Based on the evidence before me, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
[10]The Yurriyangem Taam do argue there is a high probability the grant of the licence will interfere directly with the social or community activities carried on in the area by members of the claim group. They also assert the grant of the licence is likely to interfere with a site of particular significance to members of the claim group, namely an area where people once used to camp, hunt and perform songs and dances. These are the issues I must decide.
Are there any community or social activities that may be affected by the grant of the licence?
[11]The Yurriyangem Taam contend they regularly hunt and camp, gather bush tucker and bush medicine, conduct intergenerational teaching, and carry on ‘care for country’ activities in the licence area. In support of this contention, they rely on the affidavit of Mr Johnny Echo. Mr Echo was born at Wyndham in 1962 and grew up at Bedford Downs station, located some 50 kilometres south-south-east of the licence. Mr Echo currently resides in Warmun, which is approximately 65 kilometres east-south-east of the licence. Mr Echo states the licence is in Kija country and says he talks for Kija through his parents and grandparents. I accept Mr Echo has authority to speak about Kija land matters on behalf of the Yurriyangem Taam.
[12]Mr Echo states he ‘walked across that country’ when he was younger and was taught about hunting, making camp and collecting bush tucker on the licence area by his parents and grandparents. Mr Echo says he ‘still walk[s] that country today’ and the area is now accessed ‘by walking through the gap at Elgee Cliffs’, which is marked on the map annexed to his affidavit as being at the south-west point of the licence. Tribunal mapping has Elgee Cliffs marked as running along the western side of the licence, but outside the licence. It is not clear if the Elgee Cliffs entrance to the licence is the only access point for the Yurriyangem Taam, or why that may be so. Mr Echo says he goes to the licence area with his wife and children ‘about once a month in the dry season for hunting and to collect bush medicine’, leaving Warmun on a Friday and returning on Sunday.
[13]Mr Echo describes the licence area as ‘very good for hunting’ and the Chamberlain River as ‘good for fishing’. Tribunal mapping indicates the licence is to the south-east of the river, though there is possibly a very small area where the licence encroaches on the river. Mr Echo states that ‘if we go out fishing or hunting we might go to the tenement area and then camp around Wilson River, Elgee Cliffs or Mt King.’ Mr Echo says he uses a rifle to catch kangaroo, turkey and goanna, sometimes cooking it on the spot in ‘the traditional way’ and sometimes taking it back to Warmun to share. He also collects bush yam from the licence area and says there is ‘a good spot [for them] just near the gap at Elgee Cliffs before the Bedford Stock Route.’ Mr Echo states that, when he is with his family on the licence area, he teaches his children about hunting, passing on the knowledge of his parents and grandparents.
[14]Mr Echo says he last visited the licence area in 2014 during the dry season, when he travelled there with the Kimberley Land Council and other Kija traditional owners to undertake ‘care for country’ activities. According to Mr Echo, ‘care for country’ activities are also carried out in the licence area by Kija rangers, including his son Alex. He says the rangers ‘look after the wildlife’ and ‘do things like take care of birds when they are wounded.’
[15]The Tribunal may only have regard to activities which are manifestations of claimed native title rights and interests (see Silver v Western Australia at [58]). In this inquiry, the relevant registered native title rights and interests are: the right to access and move about on the area; the right to camp and erect shelters; the right to hunt and fish; the right to participate in cultural activities; the right to maintain and protect places of importance under traditional laws and customs; and the right to trade in all resources in the area other than mineral or petroleum resources wholly owned by the Crown. I accept the activities identified by Mr Echo are consistent with these rights and interests.
[16]The activities must also be ‘community’ or ‘social’ activities. The meaning of ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence of the activities is not derived from the collective experiences of a localised group of persons, the individuals involved must be identified as a community. Similarly, while ‘social activities’ are the activities of the native title group, they can also encompass the activities of an individual or small group, provided the activity has a wider social dimension beyond the persons involved (see Silver v Northern Territory at [59]-[60]).
[17]The State contends the evidence of Mr Echo amounts to very minimal evidence of community or social activities. The State argues there is no evidence that any member of the claim group other than Mr Echo and his immediate family carry on any activities within the licence. The State says, at its highest, the evidence establishes that Mr Echo and his family visit the licence area one weekend per month for part of the year only and there ought to be little or no contact between Mr Echo and WA Mining Resources if the licence is granted.
[18]The State also says it is not clear from the evidence what the ‘care for country’ activities are or why they are carried out. The State contends the Tribunal should not accept these activities are ‘community or social activities’ in the relevant sense. Similarly, while it is accepted that Mr Echo teaches his children about hunting when he goes on hunting trips to the licence area, the State argues there is no other evidence as to activities involving ‘intergenerational teaching’ or ‘intergenerational knowledge’ carried on to the licence area.
[19]The evidence establishes Mr Echo and his immediate family travel to the licence area one weekend every month during the dry season. During these trips, Mr Echo and his family engage in activities such as hunting kangaroos, turkeys and goannas and collecting bush yams and possibly other plants used as bush medicine. There is also evidence they fish from the Chamberlain River. While the evidence does not indicate whether other members of the claim group participate in these activities, I accept they are nevertheless community activities, as there is evidence that resources collected from the licence are shared with others in the community at Warmun.
[20]The evidence also establishes Mr Echo teaches his children about hunting while visiting the licence area. Once again, there is no evidence that other members of the claim group use the licence area for this purpose, but I accept the activity has the broader social function of passing on the traditional knowledge of the claim group.
[21]The Tribunal has previously found that activities of Aboriginal rangers, particularly those described as ‘caring for country’ activities, can be activities of a community or social nature (see for example MNR v Zenith Minerals at [50]). In the present inquiry, the activities said to be carried on by the Kija rangers are limited to looking after wildlife, taking care of injured birds, protecting areas of significance to the Yurriyangem Taam and possibly other activities of a similar nature. I have little doubt the rangers are probably involved in other land management activities within the claim area generally. However, the evidence is put at such a level of generality that I am unable to find that the Kija rangers carry on activities which are likely to be affected by the grant of the licence (for example, compared with the level of detail provided in WF v Asia Investment Corporation at [14]).
What activities does WA Mining Resources intend to carry out on the licence?
[22]The licence, if granted, will authorise WA Mining Resources to:
·enter and re-enter the licence area with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals;
·explore for minerals, and carry on such operations and works in the licence area as are necessary for that purpose including digging pits, trenches and holes, and sinking bores and tunnels;
·excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances from the land within the prescribed amount or in such greater amount as the relevant Minister may approve in writing. The prescribed amount is 1,000 tonnes over the life of the licence; and
·take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), water from any natural spring, lake, pool or stream situate in or flowing through the licence area and to sink wells or bores and take water so obtained for domestic purposes and for any purpose in connection with exploring for minerals on the land: see s 66 of the Mining Act 1978 (WA).
[23]WA Mining Resources has chosen not to make any contentions and has not provided information about the activities it proposes to undertake on the licence. I am, therefore, entitled to presume it will exercise the rights conferred by the grant of the licence to their full extent, subject to the conditions and endorsements attached to the grant (see Silver v Northern Territory at [25]-[32]; Western Australia v Smith at 51-52; Murray v Money at [53]-[58]). The conditions and endorsements to be attached to the licence are listed in Appendix 1.
[24]A further condition will be imposed by the State requiring WA Mining Resources to execute in favour of the Yurriyangem Taam a Regional Standard Heritage Agreement if requested to do so by the claimants. The State argues this condition will allow the Yurriyangem Taam to choose an RSHA from one of the other representative regions, noting the Kimberley region does not have a standard RSHA.
Is the grant of the licence likely to interfere directly with community or social activities?
[25]The Yurriyangem Taam contend the grant of the licence is likely to interfere directly with the community and social activities identified.
[26]The evidence must disclose a real risk or chance of direct interference with community or social activities. The interference must be substantial in its impact on community or social activities. I am not entitled to have regard to impacts that are trivial or which are not relevant to the carrying on of the community or social activities (see Smith v Western Australia at [26]).
[27]The State contends that, due to the frequency Mr Echo and his family visit the licence area, there ought to be little or no contact between them and WA Mining Resources, especially given the 70 square kilometre size of the licence. The State also argues that, because there is no explicit evidence on road access to the area, it is not open to conclude Mr Echo and his family will invariably use the same roads or tracks as WA Mining Resources. If they do, the State says it does not follow that Mr Echo and his family will be prevented or hindered in any way from carrying out hunting or other activities. I note State evidence indicates seven tracks on the licence. The State points to the fact that, while numerous explorers have previously accessed the licence area, Mr Echo does not attest these explorers have in any way obstructed or hindered the carrying on of the activities. In the State’s submission, this strongly suggests WA Mining Resources will not interfere with the activities carried on by Mr Echo.
[28]The Yurriyangem Taam argue that, in the absence of evidence about the nature and extent of past or continuing mining activities, the Tribunal should not infer prior interference has taken place. The Tribunal has previously held the existence of mining tenure does not necessarily support the conclusion that mining or exploration has actually taken place (see, for example, Western Desert v Teck Australia at [123]). However, in the present inquiry, 11 exploration licences have been granted over the licence area in the past 30 years. On average, each of these licences has remained in existence for over two years. Although some of the licences have encroached on small portions of the licence, others have had a more substantial overlap with the licence. The most significant of these was an exploration licence granted in 2010 which covered the entire area, before being surrendered in 2013. In light of this history, it is reasonable to infer the rights conferred on the holders of these licences were exercised in the licence area to some degree. As the State points out, there is no evidence the exercise of these rights has interfered with the community or social activities identified.
[29]The Yurriyangem Taam say there is a greater likelihood of interference because the licence is only accessed in the dry season. In support of that submission, the Yurriyangem Taam rely on my decision in BAC v Bar Resources at [48]. In that matter, there was evidence the area was only accessible at certain times of year. The evidence in the present case is that Mr Echo and his family visit the licence area once a month during the dry season. Mr Echo does not state the area is completely inaccessible at other times of the year, though I accept this is reasonably likely considering the proximity of the Chamberlain River and the number of major (three non-perennial) and minor (21 non-perennial) watercourses recorded in the licence area. In any event, this was not the sole basis for my decision in BAC v Bar Resources, and there was evidence the area was used intensively by members of a nearby community. That is not the case in the present inquiry.
[30]The State also notes Mr Echo does not attest to camping in the licence area and instead refers to Wilson River, Elgee Cliffs and Mt King as potential camp sites, all of which are outside the licence. The State says this suggests the area is less important than other, surrounding areas for hunting and fishing and reduces the probability of contact between Mr Echo and WA Mining Resources. I accept that is a reasonable reading of Mr Echo’s evidence and reduces the likelihood of interference with hunting and fishing activities.
[31]The Yurriyangem Taam contend intergenerational teaching activities are likely to be inhibited if WA Mining Resources is able to access the licence without first consulting and coordinating its activities with the Yurriyangem Taam. It is not clear how teaching will be inhibited if such consultation does not occur. The evidence suggests teaching takes place in conjunction with hunting and fishing and I do not consider these activities will be substantially affected by exploration activity.
[32]The Yurriyangem Taam also contend their reliance on products hunted and gathered from the licence increases the likelihood of direct and substantial interference with their community and social activities. In response, the State submits there is no evidence Mr Echo and his family ‘rely’ on food from the licence area, and the fact Mr Echo travels to the licence area only once a month for part of the year suggests he does not rely on food from the area. I accept the State’s submission.
[33]The State also contends it will be open for the Yurriyangem Taam to take advantage of the proposed RSHA condition. In the State’s submission, an RSHA ought to provide a platform for avoiding interference with community or social activities. The Tribunal has previously acknowledged the RSHA may be relevant to the likelihood of interference with community or social activities, while accepting the RSHA is principally concerned with heritage (see Sturt v Baracus at [55], citing Tullock v Western Australia at [48]). Though I have had regard to that view, it is not clear in the present inquiry how an RSHA might operate to prevent or mitigate any interference with the community or social activities identified, save perhaps for allowing consultation in respect of ground disturbing activities proposed in areas where bush yams or other resources may be found. I also note WA Mining Resources has given no indication of any intention to consult with the Yurriyangem Taam about possible interference with their community or social activities. Nevertheless, I accept as a general premise that an RSHA might give the Yurriyangem Taam an opportunity to provide their views on the proposed exploration.
[34]Considering the limited extent to which the licence is used for the community or social activities by members of the Yurriyangem Taam claim group, and the previous use of the area for mineral exploration, I do not consider there to be a real risk or chance the grant of the licence will substantially interfere with the community or social activities of the native title holders.
Are there any areas or sites of particular significance that may be affected by the grant of the licence?
[35]Mr Echo refers in his affidavit to a place where ‘[t]he old people used to have a holiday camp.’ Mr Echo has marked the location of this place on the map annexed to his affidavit to indicate it is approximately in the centre of the licence. Mr Echo deposes that people would walk from Bedford Downs station and camp at that place, and would ‘go for hunting and do song and dance there.’ Mr Echo states that the place ‘needs to be protected’, that it is ‘part of our history’ and that the ‘Kija Rangers protect it now.’ Mr Echo also mentions a ‘special site’ at Mt King, which is ‘outside the licence area but close by.’
[36]The Yurriyangem Taam contend the holiday camp area is an area of particular significance to the native title party in accordance with its traditions, and that it is likely to be interfered with if the licence is granted. The Yurriyangem Taam make no contentions about the Mt King site, apart from the evidence provided by Mr Echo.
[37]The question that arises is whether the holiday camp area and the Mt King site are areas or sites of particular significance to the Yurriyangem Taam in accordance with their traditions. This question is a precondition to the inquiry into whether the grant of the licence is likely to cause interference with areas or sites of this kind (see YAC v FMG Pilbara at [125]). An area or site of particular significance is one of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34-35). If an area or site is significant, it must be known and able to be located and the nature of its significance explained (see Silver v Northern Territory at [91], referring to Western Australia v McHenry).
[38]The State contends the evidence of Mr Echo does not establish the holiday camp area is an area or site of particular significance to the Yurriyangem Taam. First, the State argues that, at its highest, the evidence establishes the area as one of some significance to Mr Echo personally but does not establish the place is significant to the Yurriyangem Taam as a whole. Second, it argues the evidence does not establish the camp site is of ‘particular’ significance to Mr Echo or anyone else, as there is no evidence of the relative importance of the area. The State also notes the holiday camp area is not in the nature of a spiritual or ceremonial place, but is rather a camp site, apparently from the pastoral era.
[39]The holiday camp area is clearly significant to Mr Echo personally. I also accept the area may be significant to Kija people generally, considering that Mr Echo speaks for Kija land matters and regards the area as ‘part of our history.’ However, the evidence does not explain why the holiday camp area is an area of particular significance in accordance with the traditions of the native title holders. Although the evidence suggests the existence of a ‘tradition’ of using the area for camping, hunting, and performing songs and dances, albeit post-sovereignty, there is no explanation of how that tradition is connected with the traditional laws and customs of the Yurriyangem Taam, or how the area’s significance is derived from those laws and customs. There is also no explanation of the relative significance of the holiday camp area as compared with other areas or sites within the claim area, or the particular significance of areas or sites of that class. For these reasons, I am unable to find the holiday camp area is an area of particular significance for the purpose of this inquiry.
[40]As noted above, no contention is made about the Mt King site. In any case, the evidence does not support the conclusion that the site is one of particular significance to the Yurriyangem Taam in accordance with their traditions.
[41]I also note a report from the Aboriginal Sites Database maintained by the Department of Indigenous Affairs, which indicates the existence of a site within the licence area that is registered under the Aboriginal Heritage Act 1972 (WA). This site is referred to as Durack Ranges and is described as a painting site. Two observations may be made about this site. First, registration under cultural heritage legislation is not conclusive evidence of the particular significance of a site (see Western Australia v Thomas at 174). Second, there is no other evidence about the site and the Yurriyangem Taam have not made any contentions in relation to it. In light of those observations, I do not find the Durack Ranges site is one of particular significance to the Yurriyangem Taam.
[42]As I have found there are no sites of particular significance to the Yurriyangem Taam, I will not inquire further about any level of interference to such sites.
Conclusion
[43]Although Mr Echo and his family carry on certain community and social activities within the licence area, I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. The evidence does not establish the existence of areas or sites of particular significance to the native title holders which may be affected by the grant of the licence. There is no evidence the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Determination
[44]The determination of the Tribunal is that the act, namely the grant of exploration licence 80/4852 to WA Mining Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member10 July 2015
APPENDIX 1: CONDITIONS AND ENDORSEMENTS ON GRANT OF LICENCE
Conditions
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:
a.the grant of the Licence; or
b.registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with the use of Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
Endorsements
1.The Licensee’s attention is drawn 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.
3.The land the subject of this Licence affects a rainforest area. The Licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4.The Licensee’s attention is drawn to the provisions of the:
·Water 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
5.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.
6.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:
7.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 DoW.
In respect to Waterways the following endorsement applies:
8.Advice shall be sought from the DoW if proposing any exploration 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 Surface Water Areas (Ord River and Tributaries) the following endorsements apply:
9.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10.All activities to be undertaken with minimal disturbance to riparian vegetation.
11.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
12.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
13.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 the DoW.
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