Raymond Ashwin and Others on behalf of the Wutha People v Coal First Pty Ltd & Another

[2014] NNTTA 45

NATIONAL NATIVE TITLE TRIBUNAL

Raymond Ashwin and Others on behalf of the Wutha People v Coal First Pty Ltd & Another [2014] NNTTA 45 (13 May 2014)

Application No:                WO2013/0664

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

Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (WC1999/010) (native title party)

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The State of Western Australia (Government party)           

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Coal First Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member
Place:  Perth
Date:  13 May 2014

Catchwords:   Native title – future act – proposed grant of exploration 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 involve major disturbance to land or waters - expedited procedure attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 30, 31, 32, 146, 148(a), 151(2), 237

Mining Act 1978 (WA)

Aboriginal Heritage Act 1972 (WA)
Acts Interpretation Act1901 (Cth), s 36(2)

Cases:Ashwin and Others on behalf of the Wutha People v Peter Romeo Gianni and Another [2014] NNTTA 23 (‘Ashwin v Gianni 2’)

Ashwin and Others on behalf of the Wutha People v Regis Resources Ltd [2014] NNTTA 39 (‘Ashwin v Regis Resources’)

Les 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 FLR 576 (‘Little v Oriole Resources’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (‘Ashwin v Cliffs Asia Pacific’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals Limited’)

Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (‘Ashwin v Gianni 1’)

Smith v Western Australia (2001) 108 FCR 442 (‘Smith v Western Australia’)

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

Representative of the     

native title party:             Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors

Representatives of the     Mr Warren Fitt, State Solicitor’s Office
Government party:          Mr Matthew Smith, Department of Mines and Petroleum

Representatives of the    
grantee party:                  Mr Chris Davies, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

1. On 13 March 2013, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E53/1731 (‘the proposed licence’) to Coal First Pty Ltd (‘the grantee party’). The notice includes a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).

2. The s 29 notice describes the proposed licence as comprising 61 graticular blocks (approximately 186.68 square kilometres) with a centroid of 26^o 48’ S, 121^o 36’ E,  located 80 kilometres easterly of Wiluna, in the Shire of Wiluna.

3. An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any person who, four months after the notification day, is a registered native title claimant in respect of the relevant land or waters (see s 29(2)(b)(i), s 32(3) and s 30(1) of the Act). (If there is no registered native title claimant when the s 29 notice is given, the application containing the native title claim must be filed sometime before the end of three months after the notification day included in the s 29 notice (see s 30(1)(a)(i)). The notification date for this matter was 13 March 2013. The three month period for filing a native title claim was 13 June 2013. The four month period for lodgement of objections was 13 July 2013, and by the operation of s 36(2) of the Acts Interpretation Act1901 (Cth), the closing date for lodgement became 15 July 2013, the next working day.

4. The proposed licence is overlapped as follows:

   ·the Wutha people’s native title claim (WC1999/010 – registered from 15 June 1999) by 99.13 per cent;

   ·the Mantjintjarra Ngalia #2 native title claim (WC2006/006 – registered from 1 April 2009) by 99.13 per cent; and

   ·the Wiluna native title determination (WCD2013/004 – determined on 29 July 2013) by 0.77 per cent. 

5. The following expedited procedure objection applications were made to the Tribunal in relation to the proposed licence:

   ·on 25 June 2013 by the Wutha people (‘native title party’); 

   ·on 8 July 2013 by the Mantjintjarra Ngalia #2 native title claim; and

   ·on 12 July 2013 by the Wiluna native title determination (then the Wiluna native title claim (WC1999/024 – registered on 24 September 1999)).

6. The Mantjintjarra Ngalia #2 native title claim entered into a Regional Standard Heritage Agreement (‘RSHA’) with the grantee party (‘Mantjintjarra Ngalia #2 RSHA’) on 13 September 2013 and withdrew their expedited procedure objection application on 17 September 2013.

7. The grantee party excised from the proposed licence the small area of land that overlapped the Wiluna native title determination. As the grant of the proposed licence would no longer have an effect on the native title of the Wiluna native title determination, the Tribunal was deprived of its jurisdiction to determine their expedited procedure objection application and so the Tribunal dismissed that application on 21 January 2014 pursuant to s 148(a) of the Act.

Background

1. On 30 July 2013, a preliminary conference was held at which parties advised they were wishing to negotiate an agreement in relation to the matter.  I was appointed to be the Member for the purposes of determining the inquiry on 24 October 2013. On 4 December 2013, a status conference was held at which the parties advised they were still negotiating an agreement and requested further time to do so.  At the adjourned status conference on 15 January 2014, the grantee party advised that negotiations between parties had not been successful and requested the Tribunal make a determination.   Accordingly, I set directions for an inquiry.

2. In compliance with the directions, parties provided submissions and evidence as follows: the Government party’s initial evidence on 3 February 2014 through the Department of Mines and Petroleum (‘DMP’); the native title party contentions on 25 February 2014; the grantee party’s contentions on 18 March 2014; and the Government party’s contentions on 28 March 2014.

3. On 15 April 2014, the Tribunal emailed all parties:

   The above matter is scheduled for a listing hearing on Thursday, 24 March 2014.  Submissions have been received from all parties so if parties are happy to proceed “on the papers” the listing hearing can be vacated.

1. By 17 April 2014, each of the parties had confirmed via email that they agreed the matter could proceed to be heard on the papers.  Specifically, the native title party’s legal representative advised '(t)he Native Title Party confirms it is happy to proceed on the papers'.

Conduct of the inquiry

1. The native title party’s contentions expressed its intention to call witnesses to give oral evidence, and outlined the evidence to be given, if the matter were to be decided otherwise than ‘on the papers’ pursuant to s 151(2) of the Act. Specifically, the native title party stated (at (11)) that it intended to call Ms June Ashwin and Mr Geoff Ashwin, to give certain evidence.

2. The native title party’s contentions do not state the qualifications of the proposed witnesses, though I do note that Ms Ashwin and Mr Ashwin are registered claimants as they are two of the four named persons who comprise the Applicant for the native title party’s native title determination application.

3. The native title party’s statement of contentions appears to be based on a pro forma document submitted in previous expedited procedure matters involving the Wutha People, with the only noticeable differences being the tenement details. The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are also very similar to a number of previous expedited procedure determinations involving the Wutha People made by the Tribunal. It appears that the native title party has developed a standard practice of stating in their contentions that they will provide oral evidence, but no such evidence is provided (see Ashwin v Regis Resources; Ashwin v Gianni 1; Ashwin v Gianni 2; Ashwin v Doray Minerals Limited; Ashwin v Cliffs Asia Pacific).

4. The Government party has included in its submissions (at 32) that in its view, the issues for determination in these proceedings can be adequately determined in the absence of the parties and do not require an oral hearing.  Taking into account the principles outlined at [11]-[13] by Member O’Dea in the Ashwin vDoray Minerals Limited decision, and that all parties confirmed agreement that matter could be heard on the papers, I will proceed with this matter on the papers. There was simply no support from the native title party that the issues cannot be adequately determined in the absence of the parties (as per s 151 of the Act).

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 Aboriginal Corporation v FMG Pilbara at [15]-[21].

Evidence in relation to the proposed act

1. The Government party provided the following documents in relation to the proposed licence:

   ·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence;

   ·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’);

   ·A copy of the proposed licence application;

   ·A Draft Tenement Endorsements and Conditions Extract; and

   ·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.

2. The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:

   ·Vacant crown land, overlapping the proposed licence at 99.1 per cent;

   ·Pastoral lease 3114/1060 (Wonganoo), overlapping the proposed licence at 0.1 per cent; and

   ·Pastoral lease 3114/1067 (Yelma), overlapping the proposed licence at 0.8 per cent.

3. The quick appraisal shows that the proposed licence area overlaps the following mineral tenure:

   ·one live exploration licence, overlapping at 19.7 per cent; and

   ·one live prospecting licence, overlapping at 0.1 per cent.

4. The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:

   ·seven forfeited, expired or surrendered exploration licences active between 1992 and 2008, overlapping the proposed licence between 0.1 and 17.7 per cent;

   ·two forfeited or surrendered prospecting licences, active between 1996 and 2011, overlapping the proposed licence at less than 0.1 per cent; and

   ·two cancelled temporary reserves, active between 1959 and 1973, overlapping the proposed licence between 48.4 and 100 per cent.

5. The quick appraisal outlines that there are no services located on the proposed licence.

6. The report from the DAA Database shows there are no Aboriginal sites located on the proposed licence.

7. There do not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.

8. The Draft Tenement Endorsement and Conditions Extract indicates the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Bushwin [11]-[12]) and two standard conditions imposed for licences overlapping pastoral or grazing leases. These are:

   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:-

   ·the grant of the Licence; or

   ·registration of a transfer introducing a new Licensee;

   advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

9. The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:

   1.    The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

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

   3.    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

   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 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 DoW.

   In respect to Waterways the following endorsement applies:

   7.    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 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 the DoW.

Native title party’s statement of contentions

1. As stated above, the native title party’s contentions appear to be based on a pro forma document submitted in previous expedited procedure matters before the Tribunal.  As with previous matters, the native title party has not provided any material in support of its contentions and contemplates that witnesses (Ms Ashwin and Mr Ashwin) for the native title party will give evidence in support of its contentions.  And, as with previous matters, the native title party did not prosecute this intention in any way, either directly or through their representatives.  As such I make no further comment about the evidence the native title party would or would not have given should an oral hearing have been granted.

2. I refer to my decision in Ashwin v Gianni 2 where the native title party contentions are identical to this matter (at paragraphs [26]-[32]), and adopt those paragraphs for the purpose of this matter rather than re-stating those identical contentions.

Grantee party contentions

1. The grantee party makes submissions in relation to each subsection of s 237 of the Act.

2. In relation to s 237(a), the grantee party states (at 13):

   ·    the native title party has not submitted any evidence of community and social activities that are currently conducted over the proposed licence or any customs and traditions that will be affected by the activities of the grantee party;

   ·    the area of the proposed licence has been subject to prior mineral exploration activity, which is likely to have affected the extent to which community and social activities are carried out in the proposed licence;

   ·    parts of the proposed licence are covered by pastoral leases, and the native title party’s activities have therefore been subject to, and co-existent with, the activities of the pastoral leaseholders;

   ·    the grant of the proposed licence would be no more significant to the activities of the native title party that the previous and ongoing use of the proposed licence;

   ·    any intersection of the native title party’s law business and the activities of the grantee party will only occur in the limited period during which law business is held; and

   ·    hunting activities are capable of co-existence with mineral exploration.

1. In relation to s 237(b), the grantee party states (at 14):

   ·    it has undertaken a search of the DAA Database, and the search results have shown no registered sites or ‘other heritage places’ within the proposed licence;

   ·    the native title party has not provided evidence of the existence of any sites of particular significance;

   ·    it was  willing to enter into an RSHA with the native title party and has entered into such an agreement with the Mantjintjarra Ngalia #2 people;

   ·    it acknowledges its responsibilities under the AHA;

   ·    it will undertake a heritage survey as required pursuant to the RSHA signed with the Mantjintjarra Ngalia #2 native title claim group; and

   ·    it is not willing to pay for a second survey over the same area as the native title party and Mantjintjarra Ngalia #2 claims both overlap the same part of the proposed licence and it believes that the Mantjintjarra Ngalia #2 RSHA provides protection to sites.

2. In relation to s 237(c), the grantee party states (at 15):

   ·    it undertakes to comply with the relevant statutes, protocols, codes of practice, conditions and other directions and requirements of the Government party and relevant authorities;

   ·    the conditions and endorsements to be imposed on the grant of the proposed licence are sufficient to ensure any activity carried out will not involve major disturbance to land and waters;

   ·    employees and contractors of the grantee party are instructed to comply strictly with all environmental conditions and practices, and to rehabilitate any disturbance made to the surface of the land; and

   ·    disturbance during exploration will be kept to a minimum.

3. Attached to the grantee party’s contentions is a copy of its DAA Database search for the proposed licence.

4. I note that the grantee party has not provided its scope of works, nor outlined the activities it intends to undertake upon the proposed licence.  In the absence to the contrary, I must assume that the grantee party will exercise its full suite of rights conferred by the Mining Act 1978 (WA). It does state (at 15(e)) that it will, on request, provide non commercially sensitive information about the proposed programme of works including ‘where exploration is likely to be directed to over the subject ground, and address access and rehabilitation plans if and where applicable'.

Government party contentions and evidence

1. The Government party contends, among other things, that: the rights which will be conferred by the proposed licence (if granted) are set out in section 66 of the Mining Act (and includes an extract); the exploration license is for an initial term of 5 years and is renewable; and that as the grantee has not provided evidence as to how it intends to exercise its rights under the proposed licence, the Tribunal should assume that it will exercise the full suite of rights conferred by section 66 of the Mining Act (at 14–17).  

2. The Government party states it proposes to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract (at 18) and that the grantee party has entered into the Mantjintjarra Ngalia #2 RSHA over the same area of the proposed licence (at 20).

3. The Government party states, in the absence of evidence to the contrary, the Tribunal must assume that a grantee party will not act in breach of the relevant statue law, regulations or conditions imposed upon them (at 23). It contends the grantee party’s submissions provide a ‘firm basis’ for concluding that the interference contemplated under the three limbs of s 237 of the Act is unlikely (at 24).

Government party’s contentions in relation to s 237(a)

1. The Government party submits there is no evidence to support the native title party’s assertions that certain community and social activities are carried out on the proposed licence area (at 51).  The Government party also submits (at 53) there is not likely to be direct interference with such activities given:

   ·    the proposed licence is subject to the Mantjintjarra Ngalia #2 RSHA which will ensure activities are conducted in a manner respectful of local Aboriginal cultural concerns;

   ·    the grantee party’s willingness to enter into an RSHA with the native title party which provides for consultation prior to ground disturbing activities;

   ·    the prior mineral exploration activity and overlap of the two pastoral leases which are likely to have affected, and continue to affect the extent to which community and social activities can be carried out on the proposed licence;

   ·    there are no Aboriginal communities within the area;

   ·    that exploration activities are inherently capable of coexistence with hunting activities of a native title party; and

   ·    that grantee party and native title party activities may intersect but that does not mean a real chance of substantial interference or restriction of access.

2. I accept all of these arguments in this matter.

Government party’s contentions in relation to s 237(b)

1. The Government party correctly states the native title party has not produced any evidence regarding sites or areas of particular significance and provides some reasoning in relation to that (at 63-67).  It contends the Mantjintjarra Ngalia #2 RSHA covers the proposed licence and that will provide sufficient protection to areas and sites of particular significance (at 63-64). The Government party states that interference is not likely because there has been previous mineral exploration in the area and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 65).  It also contends the State’s regulatory regime under the AHA is likely to prevent interference with any area or site of particular significance (at 66) and the grantee party has indicated its intention of abiding by the AHA (at 67). 

2. I accept all of these arguments in this matter.

Government Party’s contentions in relation to s 237(c)

1. The Government party states this limb of s 237 is only attracted when there is a significant, direct physical disturbance of land or waters (at 74), and that the grant of the proposed licence is not likely to involve such because (at 76):

   ·    the grantee party has stated that it intends to keep disturbance of the land during exploration to a minimum;

   ·    the grantee party’s entry into the Mantjintjarra Ngalia #2 RSHA means any ground disturbing activities (such as drilling) are intended to be conducted in a way which will not adversely impact on heritage sites and therefore will be unlikely to have any major impact on land and waters;

   ·    the State’s regulatory regimes will likely avoid any such major disturbance; the Government party intends to impose conditions and endorsements on the proposed licence; and

   ·    the proposed licence area has been subject to previous mineral exploration; and there is an absence of any particular characteristics that would be likely to result in disturbance to land or waters from the activities of the grantee party (at 76).

2. Again I accept these arguments in the absence of contrary evidence from the native title party.

Considering the Evidence in context of s 237 of the Act

Interference with community or social activities – s 237(a)

1. The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith v Western Australia at [26]). The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith v Western Australia at [27]).

2. I accept the Government party’s argument that the native title party has not made out any likely interference with community or social activities, even assuming the grantee party was to assert the full suite of rights available to it. As such I conclude it is unlikely that the grantee party activities will interfere with the community or social activities of the native title party for the purposes of s 237(a) in this matter.

Interference with sites or areas of particular significance – s 237(b)

1. In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.

2. I accept the Government party’s argument that the native title party has not provided evidence to suggest there are sites or areas of particular significance on the proposed licence. Even had there been such sites, based on the available evidence, I accept the State’s regulatory regime in this matter would have been sufficient to protect such sites given: the previous and current mineral exploration activity over the area; the grantee party’s acknowledgment of its responsibilities under the AHA; and the grantee party's contentions and documents in support of its approach, including its willingness to enter into an RSHA with the native title party, it signing the Mantjintjarra Ngalia #2 RSHA and its willingness to conduct a heritage survey under the Mantjintjarra Ngalia #2 RHSA.

3. As such, I conclude there is not likely to be a real chance or risk of interference with sites or areas of particular significance in this matter for the purposes of s 237(b).

Major disturbance to land or waters – s 237(c)

1. The Tribunal is required to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).

2. I agree with the Government party that the native title party has not made out any particular features or aspects on the proposed licence in this matter, and I conclude a real risk of major disturbance to land or waters is unlikely to occur, based on the available evidence for the purposes of s 237(c).

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E53/1731 to Coal First Pty Ltd, is an act attracting the expedited procedure. 

Helen Shurven
Member

13 May 2014