Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited
[2013] NNTTA 68
•18 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (18 June 2013)
Application No: WO2012/0260
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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Doray Minerals Limited (grantee party)
DETERMINATION THAT THE ACT IN AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 18 June 2013
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, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases:Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia (2005) 190 FLR 362
Leonne Velickovic on behalf of the Widji People/Western Australia/Glyn Thomas Morgan, Angus Gordon Gailbraithe [2003] NNTTA 10
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576
Little v Western Australia [2001] FCA 1706
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42
Page v Teelow (2002) 169 FLR 62
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia (2008) 167 FCR 340
Sandy Limmen & Ors on behalf of Alawa, Marra and Ngandji People/Astro Mining NL/Northern Territory [2002] NNTTA 202
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210
Representative of the Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors
native title party:
Representatives of the Mr Tom Pontre, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Greg Abbott, M&M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
On 30 November 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E21/154 (‘the proposed licence’) to Doray Minerals Limited (‘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).
The notice describes the proposed licence as comprising an area of three graticular blocks (approximately 9.1167 square kilometres) located 28 kilometres south-east of Cue in the Shire of Cue. The entire area within the proposed licence is subject to the Wutha (WC1999/010 – registered from 15 June 1999). The proposed licence is also wholly within the native title claim of the Yugunga-Nya People (WC1999/046 – registered from 12 June 2000).
On 30 March 2012, Raymond William Ashwin, June Rose Ashwin, Geoffrey Alfred Ashwin and Ralph Edward Ashwin on behalf of the Wutha People (‘the native title party’) made an expedited procedure objection application with the Tribunal in respect of the proposed license (designated by the Tribunal as WO2012/0260). Another objection was made on behalf of the Yugunga-nya People on 30 March 2012 (designated as WO2012/0258).
In accordance with what was then standard practice for expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the proposed licence attracts the expedited procedure. These directions allowed a four month period after the closing date for the lodgement of objections (in this case, 30 March 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. In the present matter, the grantee party indicated its intention to negotiate with the representatives of each claim, and the Tribunal convened a series of status conference to monitor the parties’ progress a resolution. At a status conference held on 30 January 2013, the representative for the grantee party said it intended to enter into an agreement with the Yugunga-nya People and wished to proceed to a determination in relation to the present objection. Accordingly, the matter was programmed for inquiry.
The inquiry
Directions were initially set down on 21 December 2012. These directions required, among other things, that:
(1)the Government party provide by 25 February 2013 any evidence or documents relevant to the inquiry, including:
(a)a topographical map or maps of an appropriate scale marked with:
i.the areas of the licence/s and the location of registered sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’); and
ii.boundaries of various tenures of land within and overlapping the boundaries of the tenement with details of the nature of each such tenure;
(b)the details of any Aboriginal community within and in the vicinity of the of the licence/s;
(c)the details of the registered sites under the AHA;
(d)Mining Tenement documents; including
i.copies of the application for the licence/s;
ii.copies of the proposed Schedule of Endorsements and Schedules of Conditions;
iii.details of any current mining tenement on or overlapping the licence area and whether it was subject to the right to negotiate provisions of the Act; and
iv.available details of prior mining tenements granted on or overlapping the same area including the date of the grant and the date of expiry.
(2)the native title party provide by 5 March 2013:
(a)a statement of contentions, including
i.a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
ii.a statement of the community or social activities of the native title party that it is contended is likely to be interfered with directly by the grant of the tenement;
(b)a copy of each document relevant to the inquiry (including any affidavit to be relied on);
(c)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposed that the evidence be heard if the matter is not to be heard on the papers;
(3)the grantee party provide by 12 March 2013:
(a)a statement of contentions;
(b)A copy of each document relevant to the inquiry; and
(c)a statement of the evidence to be given by any witness for the grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers; and
(4)the Government party provide a statement of contentions by 19 March 2013.
The Government party provided its supporting documents on 26 February 2013. The native title party provided a statement of contentions on 28 February 2013 (‘NTP Contentions’), and the grantee party provided its contentions and supporting documents on 7 March 2013 (‘GP Contentions’). On 12 March 2013, the Government party requested an extension of time in which to provide its statement of contentions. I approved the extension on 15 March, and the Government party provided the document on 27 March 2013 (‘GVP Contentions’).
The native title party did not provide any documents in support of its contentions. However, in its statement of contentions, the native title party outlines the evidence to be given by witnesses it intended to call 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 its intention to call June Ashwin and Geoff Ashwin to give evidence of:
·the likelihood of direct interference to the carrying on of the community and social activities of the native title party if the proposed licence is granted;
·the native title party’s traditional relationship with the land;
·the stories and dreamings told by the Wutha people from generation to generation since time began; and
·the relationship between the community and social activities of the native title party and the Wutha people’s relationship with the land and the stories and dreamings told by the Wutha people (NTP Contentions, paragraph 12 and 13).
The native title party’s contentions also stated that Mr and Ms Ashwin would give evidence that the native title party’s community and social activities include:
·the responsibility, according to traditional Aboriginal law and custom, to protect and care for all the country (including the areas of the proposed licence) for which the Wutha people hold registered native title rights and interests;
·the duty to protect and care for those areas surrounding and including sites of spiritual significance, which are fundamental to Aboriginal customary law and sites of particular significance to the Wutha people;
·the duty to protect and care for areas of particular importance such as those used for hunting and gathering; and
·the activity of exercising the right to negotiate future act proposals on land located within the area of the Wutha people’s native title determination application (NTP Contentions, paragraph 15).
Furthermore, the native title party’s contentions stated that the witnesses would also give evidence that the grant of the proposed licence is likely to interfere with the native title party’s community and social activities associated with the exercise of its registered native title rights and interests, and in particular:
·access rights to land and the right to control the access of others to the tenement areas;
·the right to use and enjoy resources, particular as regards hunting and collection of flora;
·the right to maintain and protect places of importance under traditional laws, customs and practices; and
·the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area (NTP Contentions, paragraph 16).
The native title party’s contentions do not state the qualifications of Mr and Ms Ashwin. However, I note that both are registered claimants.
At a listing hearing convened on 18 April 2013, the native title party’s representative informed the Tribunal that it agreed with the other parties that the matter should be determined ‘on the papers’ (that is, without a hearing). This position was adopted despite the fact the native title party had previously indicated its intention to rely on the oral testimony of Mr and Ms Ashwin and in circumstances where no other documentary or affidavit evidence had been filed. Whether parties consent to the Tribunal determining the matter on the papers or not is irrelevant to the exercise of the Tribunal’s discretion under s 151(2): Little v Western Australia [2001] FCA 1706 at [55]. What that section requires is that the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. A hearing must be held if there is any doubt as to the adequacy of the material, provided the inadequacy can be cured by oral testimony: Page v Teelow (2002) 169 FLR 62 (Page v Teelow) at [23]. The fact that a party has not provided sufficient evidence to support its contentions will not necessarily mean that a hearing is required (see for example Sandy Limmen & Ors on behalf of Alawa, Marra and Ngandji People/Astro Mining NL/Northern Territory [2002] NNTTA 202; Leonne Velickovic on behalf of the Widji People/Western Australia/Glyn Thomas Morgan, Angus Gordon Gailbraithe [2003] NNTTA 10). The cost, delay and inconvenience to parties associated with a formal hearing may also be relevant to the Tribunal’s decision about whether or not a hearing should be held: Page v Teelow at [34].
The Government party contends that there is ‘nothing particularly novel’ in the native title party’s contentions or in the outline of evidence provided (GVP Contentions, paragraph 29). The Government party argues that the very fact a written précis has been provided suggests that the native title party’s evidence could have been adequately provided by way of affidavit (GVP Contentions, paragraph 30). Accordingly, the Government party submits that a hearing would not be helpful to the inquiry and the matter can be adequately determined in the absence of the parties. The Government party also draws attention to the cost and delay that a formal hearing would entail (GVP Contentions, paragraph 31).
I accept the Government party’s submissions in this regard. The native title party’s contentions only provide a broad outline of the kind of evidence on which the native title party had intended to rely. Although the evidence outlined in the précis deals primarily with the native title party’s community and social activities, the evidence is described in very general terms. It is not at all clear from the précis that the evidence the native title party had intended to lead would have addressed these matters to the level of detail and specificity required for the Tribunal to make a proper assessment of issues to be determined. Much of the evidence described relates to the native title party’s responsibilities under traditional law and custom, as well as its registered native title rights and interests and procedural rights under the Act, rather than the activities carried on by the native title party. Though the précis refers to evidence concerning the native title party’s duty to protect and care for sites of spiritual significance, it does not specifically state that evidence would be led about the existence of such sites. Nor does any of the evidence appear to concern the question of major disturbance to land or waters. While the native title party’s contentions suggest that parts of the evidence ‘may’ have touched on matters considered to be confidential due to cultural or customary concerns (NTP Contentions, paragraph 17), there is no evident reason why the evidence could not have been provided by way of affidavit. Furthermore, the native title party did not seek to lead the oral evidence its contentions identify or any other. In the circumstances, I am not satisfied that a hearing would have assisted me to determine the issues arising from the native title party’s application. Accordingly, I consider it appropriate to proceed on the papers.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia (2002) 169 FLR 437, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v State of Western Australia (2008) 167 FCR 340). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FLR 576, especially [41]-[57]).
Evidence in relation to the proposed acts
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 tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·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.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licence to be as follows:
·Pastoral lease 3114/553 (Yarraquin) at 100 per cent.
·Historical Lease 394/574 at 100 per cent.
The quick appraisal shows that an existing exploration licence granted in 2001 completely overlaps the proposed licence. Two existing prospecting licences in the grantee party’s name also encroach on the proposed licence by 9.3 and 21.1 per cent. It is understood that the land subject to the prospecting licences will be excluded from the proposed licence area. The quick appraisal also establishes that the area within the proposed licence has previously been subject to:
·five exploration licences granted between 1986 and 2000, overlapping the proposed licence between 33.1 and 100 per cent;
·seven mining leases granted between 1988 and 1995, overlapping the proposed licence 0.1 and 28.7 per cent respectively;
·31 prospecting licences granted between 1985 and 2005, overlapping the proposed licence between 19.1 and less than one per cent; and
·28 mineral claims granted between 1968 and 1981, overlapping the proposed licence between 13.2 and less than one per cent.
The report from the DAA Database indicates there are no registered sites or ‘other heritage places’ within the proposed licence. There does not appear to be any Aboriginal communities within the proposed licence or the surrounding areas.
The Draft Tenement Endorsement and Conditions Extract indicates that 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 Tarlpa at [11]-[12]). The proposed licence will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease of the grant or transfer of the licence and of certain activities carried out under the licence.
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 water.
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.
Native title party contentions
The native title party’s contentions may be summarised as follows:
Interference with Community or Social Activities
·The grantee party will be able to exercise rights and interests in the land that will interfere with the native title party’s ability to access the land: paragraph 5(a).
·The exercise of the grantee party’s rights and interests will interfere with the carrying on of community activities of the native title party, such as hunting, gathering, extraction of flora, the use of other resources of the land, and any religious ceremonial and other activities: paragraph 5(b).
·The exercise of the grantee party’s rights and interests will interfere with the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationship of the native title party to the land: paragraph 5(c).
·Exploration activity will scare away bush animals, especially when drilling is conducted and bulldozers are used, and will destroy plants the native title party uses for bush tucker and medicine: paragraph 5(d).
Interference with Areas or Sites of Particular Significance
·Not all sites of particular significance to the native title party in relation to the land concerned have been recorded, and it cannot be said with any certainty that the grant of the proposed licence is not likely to interfere with sites or areas of particular significance until an approved heritage protection survey has been undertaken with the native title party: paragraph 6(a).
·The Government party has not proposed that a condition be imposed requiring the carrying out of an approved heritage protection survey with the native title party: paragraph 6(b).
·The provisions of the AHA provide for a ministerial discretion to permit interference with Aboriginal sites: paragraph 6(c).
·The Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to the exercise of the Minister’s discretion: paragraph 6(d).
·The Government party has not proposed a condition be imposed requiring the grantee party to enter into a heritage protection agreement with the native title party: paragraph 6(e).
·Exploration activity may destroy sites: paragraph 6(f).
Major Disturbance to Land or Waters
·It cannot be said with certainty that the rights accorded to the grantee party under the proposed licence will not have a significant impact on Aboriginal people who use the land: paragraph 7(a).
·Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party: paragraph 7(b).
As stated above, the native title party has not provided any material in support of its contentions.
Grantee party contentions
The grantee party’s contentions were provided on 7 March 2013, and were accompanied by an outline of the grantee party’s proposal and the previous exploration that has occurred in the area. The grantee party also provided reports and maps from the DAA Database and the DAA’s Heritage Survey Database, as well as a Tengraph quick appraisal for the proposed licence.
According to the exploration proposal, the grantee party intends to carry out an initial surface geochemical sampling programme. This programme will involve the collection of samples of around two kilograms from between 10 to 30 centimetres from the surface on a grid of approximately 100 metres by 50 metres. Following the definition of anomalies from soil sampling, the grantee party intends to carry out shallow aircore drilling to test the presence of gold mineralisation. Deeper drilling is likely to follow if the results of initial exploration are positive. The grantee party notes that ‘regionally extensive’ work programmes have been carried out in the area by previous explorers, and provides an outline of the exploration activities undertaken in the vicinity of Webb’s Patch, located in the north-west corner of the proposed licence. These activities include rotary air blast, reverse circulation and aircore drilling, as well as ground and aeromagnetic surveys, soil sampling and geological mapping.
The grantee party contends that the proposed exploration is ‘highly unlikely’ to interfere with the community activities of the native title party. In this regard, the grantee party refers to the fact that the total area of the native title party’s claim is 3,268,437.03 hectares, whereas the proposed licence area is only 900 hectares, representing 0.0254 per cent of the total claim area (GP Contentions, paragraph 1.4).[1] The grantee party states that it does not plan to exclude any of the native title party’s community activities unless the work undertaken is considered temporarily unsafe for the conduct of community activities, in which case it will consult with the relevant community (GP Contentions, paragraphs 1.1 - 1.2). The grantee party also undertakes to notify traditional owners of any exploration activity that is likely to restrict hunting or gathering and will consult with traditional owners to minimise any disturbance (GP Contentions, paragraph 1.3).
[1] The Tribunal’s geospatial data indicates that the claim area is in fact 32,629.3757 square kilometres (or 3,262,937.57 ha) and the proposed licence is 9.1167 square kilometres (or 911.67 ha). However, nothing turns on this.
The grantee party states that it intends to comply with the AHA and will report any Aboriginal sites identified (GP Contentions, paragraph 2.4). The grantee party also states that it has never been prosecuted for any breach of the AHA (GP Contentions, paragraph 2.5). Furthermore, the grantee party notes that it has entered into a heritage protection agreement with the Yugunga-nya claimants, whose claim wholly overlaps the proposed licence (GP Contentions, paragraph 2.1 - 2.2).
The grantee party states that it will restore the land immediately after carrying out its exploration programme, and has undertaken to restore the land as close as possible to the condition it was in prior to the exploration (GP Contentions, paragraph 3.2).
Interference with community or social activities – s 237(a)
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 (2001) 108 FCR 442 at [23] (‘Smith’). 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 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 at [27].
The native title party contends that the grant of the proposed licence will interfere with a range of community and social activities, including hunting and gathering, religious or ceremonial activities, and other activities associated with the continuation of the native title party’s oral traditions. However, the native title party has not provided any evidence that the activities described are carried on in the proposed licence. The native title party argues that the grant of the proposed licence will interfere with its ability to access the proposed licence. However, the relevant inquiry is whether the proposed licence is likely to directly interfere with activities, rather than the apprehended effect on the theoretical exercise or enjoyment of registered native title rights and interests. There is no evidence that the grant of the proposed licence involves a real risk of interference with any community or social activities carried on by the native title party in the relevant area.
In reaching this conclusion, I have also had regard to the following factors:
·The area within the proposed licence is already subject an existing pastoral lease and has an extensive history of mineral tenure.
·The effect of the grant on any community or social activities carried on by the native title party is unlikely to be any more significant than the previous and continuing use of the area.
·The proposed licence only covers a small percentage of the total claim area.
·The grantee party has undertaken to notify traditional owners prior to carrying out its exploration programme and will consult with them to minimise any interference with its community or social activities.
In light of these considerations, I find that the grant of the proposed licence is not likely to directly interfere with community or social activities carried by the native title holders.
Interference with sites or areas of particular significance – s 237(b)
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. As stated above at [22], the DAA Database shows there are no registered sites or ‘other heritage places’ within the proposed licence; however, this does not mean there are no sites or areas of particular significance to the native title party with the proposed licence area or in the vicinity. The Register of Aboriginal Sites does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The native title party has not provided any evidence about the existence of areas or sites of particular significance within the proposed licence or adjacent areas. The native title party argues that it has not recorded every site of particular significance to the native title party. However, that argument cannot support a finding that the proposed licence is likely to interfere with sites or areas of particular significance. Mere reference to the possible existence of sites or areas of particular significance within a given area does not provide a sufficient basis for concluding that interference of the kind contemplated by s 237(b) is likely. The location and significance of the area or site in question must be capable of identification on the evidence before the Tribunal: Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210; Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd [2001] NNTTA 42 at [36]-[38].
Nor do I accept the native title party’s submissions regarding the AHA or the adequacy of conditions proposed by the Government party. These matters have been dealt with comprehensively in previous decisions of the Tribunal and the Federal Court (see Maitland Parker at [31]-[41]; Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91] and the cases cited). While each matter must be considered on its own facts, there is nothing before me to suggest that the site protective regime would be inadequate in the present circumstances. It is also well established that a refusal to enter into a heritage protection agreement will not necessarily lead to a finding that a future act does not attract the expedited procedure, let alone the specific agreement preferred by the native title party,. In the present matter, the grantee party has already entered into such an agreement with the Yugunga-nya claimants. While I am not aware of the terms of this agreement, I am confident it will provide an additional degree of protection to any significant sites or areas that may be located in the proposed licence area. Whatever the relevant merits of the Yugunga-nya agreement compared with the native title party’s preferred agreement, it is not the Tribunal’s role to endorse one agreement over another (see Champion v Western Australia (2005) 190 FLR 362 at [46]). In any event, I am satisfied that the grantee party understands its obligations under the AHA and will take appropriate steps to avoid interference with Aboriginal sites.
In conclusion, I find that the grant of the proposed licence is not likely to interfere with sites or areas of particular significance to the persons who hold the native title to the land and waters concerned.
Major disturbance to land or waters – s 237(c)
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 at [41]-[57]).
The native title party contends that, in determining whether major disturbance is likely to occur, account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party. However, the native title party has not identified which aspects of the native title party’s community life, customs and traditions might affect the Tribunal’s assessment of the likelihood of major disturbance, and has not pointed to the cultural concerns that might support the finding that major disturbance is likely to occur. Nor has it identified any special topographical, geological or environmental factors that might suggest a greater likelihood of major disturbance than might otherwise be the case.
In considering whether or not the proposed licence is likely to involve major disturbance, I have also had regard to the following factors:
·A pastoral lease covers the entire area of the proposed licence, and the area has an extensive history of mining and exploration activity. Given this history, it is likely that some level of disturbance has already occurred and, in the case of the pastoral lease, will continue to occur.
·The proposed conditions require the grantee party to rehabilitate all disturbances to the surface of the land to the satisfaction of the Department of Mines and Petroleum’s Environmental Officer, and prohibit certain ground disturbing activities unless written approval is obtained.
·The proposed endorsements direct the grantee party’s attention to environmental protection and water management legislation.
·There is no evidence that the grantee party will not comply with the relevant regulatory regimes.
Taking these considerations into account, I do not consider it likely that the grant of the proposed licence will result in major disturbance to the land and waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E21/154 to Doray Minerals Limited, is an act attracting the expedited procedure.
Daniel O’Dea
Member
18 June 2013
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