Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Zephyr Mining Pty Ltd
[2013] NNTTA 164
•29 November 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Zephyr Mining Pty Ltd [2013] NNTTA 164 (29 November 2013)
Application No: WO2012/1039
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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Zephyr Mining Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 29 November 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 areas or 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:Champion v Western Australia (2005) 190 FLR 362 (‘Champion’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v State of Western Australia (2008) 167 FCR 340 (‘Parker 2’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Cliffs Asia Pacific Iron Ore Pty Ltd [2013] NNTTA 122 (‘Cliffs Asia Pacific’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Doray Minerals Limited’)
Raymond William Ashwin and Ors on behalf of the Wutha People/Western Australia/Peter Romeo Gianni [2013] NNTTA 88 (‘Gianni’)
Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’)
Smith v Western Australia (2001) 108 FCR 442 (‘Smith’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley’)
Representative of the Mr Paul Tolcon, Mony De Kerloy Barristers & Solicitors
native title party:
Representatives of the Mr Joshua Berson, State Solicitor’s Office
Government party: Mr Phillip Nell, Department of Mines and Petroleum
Representatives of the Mr Stephen Argus, Zephyr Mining Pty Ltd
grantee party:
REASONS FOR DETERMINATION
On 16 May 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E37/1130 (‘the proposed licence’) to the grantee party. The notice includes a statement that the Government party considers the grant attracts the expedited procedure (that is, that the grant of 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 19 graticular blocks (approximately 57.7 square kilometres) located 93 kilometres east of Leinster in the Leonora shire. 93.85% of the area within the proposed licence is subject to the native title claim of Wutha (WC1999/010 – registered from 15 June 1999), (the 'native title party'). On 13 September 2012, the native title party made an expedited procedure objection application with the Tribunal in respect of the proposed licence.
The proposed licence is also overlapped by the registered native title claim of the Mantjintjarra Ngalia #2 People (WC2006/006) by 93.85%. That group lodged an objection to the assertion of the expedited procedure statement in relation to E37/1130 on 14 September 2012, which was dismissed on 25 November 2013.
In accordance with 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 period after the closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement, which could lead to the disposal of the objection by consent. The matter was the subject of a number of conferences convened between October 2012 and January 2013. At an adjourned status conference held on 20 February 2013, the grantee party was not in attendance (as had been the case for three previous conferences) and the native title party representative reported that the grantee party had not responded to communication, nor provided a response to a draft agreement sent several months earlier. The Tribunal consequently commenced non-participating grantee party action and sent a letter to the grantee party representative on 22 February 2013 stating that if the grantee party did not make contact with the Tribunal within 14 days, the Tribunal would contact the Government party about appropriate courses of action to resolve the matter, which may result in the Government party refusing to grant the proposed licence, or consider making directions requiring the grantee party to comply first. Further conferences were held on 20 March, 24 April and 22 May 2013, without the grantee party attending. At the May conference, the Government party reported that it had commenced refusal action; it had sent two letters to the grantee party without receiving a response. The Government party advised that if no reply was received by the deadline, a request would be made to the Minister to refuse the application for the proposed licence. On 21 June 2013, communication was received from the grantee party, advising that they had a new representative.
At a conference on 26 June 2013, the grantee party’s representative requested that the matter proceed to inquiry with the reason given being that a cultural heritage survey had already been conducted on the proposed licence. The Government party supported the grantee party’s request, due to the age of the matter. Final directions for submissions and evidence were made on 5 July 2013.
The inquiry
The directions for the inquiry required, among other things, that:
(1)the native title party provide by 5 August 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;
(2)the grantee party provide by 12 August 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
(3)the Government party provide a statement of contentions in reply by 19 August 2013.
According to directions, (through the Department of Mines and Petroleum (DMP)) on 19 July 2013, the Government party provided its supporting documents relating to the proposed licence. The native title party provided a statement of contentions on 23 July 2013. The grantee party provided a statement of contentions and supporting documents, which consisted mainly of factual information rather than submissions, on 12 August 2013. The Government party provided its contentions and further supporting documents on 19 August 2013.
The native title party did not provide any evidence, statements or documents in support of its contentions. However, in its statement of contentions, the native title party 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 that it intended to call Ms June Ashwin and Mr 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.
The native title party’s contentions stated that Ms Ashwin and Mr 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.
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, particularly 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.
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 and named persons comprising the Applicant.
In relation to the native title party’s request in its submissions to call Ms June Ashwin and Mr Geoff Ashwin to provide oral evidence, I caused an email to be sent to all parties on 3 September 2013, outlining the circumstances in which oral evidence is usually used and explaining that this was not such a matter as there appeared to be no factual conflicts or other issues that could not be addressed by the native title party submitting affidavit or other evidence. I also noted that the Tribunal is required to take into account the cost, delay and inconvenience to parties and the Tribunal in relation to the provision of oral evidence, and set out that parties were at liberty to request s 155 non-disclosure directions if evidence submitted was of a culturally sensitive nature, or gender restricted. On that basis, I directed that the native title party had leave to file affidavit evidence from Mr Ashwin and Ms Ashwin by 27 September 2013 and that the grantee party and Government party had leave to file a response to any affidavit evidence filed by the native title party, by 7 October 2013.
By 2 October 2013, no affidavit evidence or any other communication had been received from the native title party. The Government party and grantee party had each informed the Tribunal by email that they agreed to the matter being heard on the papers. The Tribunal emailed the parties stating that, as all parties had provided submissions, the matter would proceed to inquiry on the papers.
The circumstances of this matter, in terms of the native title party not providing evidence to support its contentions, are 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 may have developed a standard practice of stating in their contentions that they will provide oral evidence. Then, at the stage when all submissions are with the Tribunal and the matter is ready to proceed to inquiry, they state they do not wish to provide any further material, even when given the express opportunity to do so. Some recent determinations with similar circumstances involving the Wutha People are Doray Minerals Limited, Gianni and Cliffs Asia Pacific. Taking into account the principles outlined at [11]-[13] by Member O’Dea in the Doray Minerals Limited decision, and also the fact that, in this particular matter, the native title party was provided with additional time to lodge affidavit evidence in lieu of oral evidence and did not take up the opportunity to lodge affidavit evidence, or provide any other comment or communication, I have decided to 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).
The Government party has made extensive submissions about the lack of evidence provided by the native title party, in the context of an oral hearing not being required because there is no reason why the evidence could not have been provided by affidavit, and in relation to each of the criteria in s 237.
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, 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 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 at [31]–[38] and [40]-[41] (see also Parker 1; Parker 2). I also adopt those set out by Deputy President Sosso in 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, especially [41]-[57]).
Evidence in relation to the proposed act
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.
·First schedule (to the tenement application, but not the application itself) 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 3114/872 (Melrose) at 6.1 per cent.
·Pastoral Lease 3114/1212 (Banjawarn) at 91.8 per cent.
·Pastoral Lease 3114/1060 (Wonganoo) at 2.1 per cent.
The quick appraisal shows that the proposed licence area has previously been subject to the following mineral tenure:
·11 exploration licences granted between 1994 and 2011, overlapping the proposed licence between 4.4 per cent and 31.9 per cent and all now all surrendered or withdrawn.
·One gold mining lease granted in 1974 and forfeited in 1975, overlapping the proposed licence by less than 0.1 per cent.
·Five mineral claims granted between 1971 and 1973, all now surrendered, overlapping the proposed licence between 0.1 and 2.1 per cent.
·One prospecting licence granted in 2006 which expired in 2010, overlapping the proposed licence by 2.8 per cent.
The quick appraisal outlines the following services located on the proposed licence:
·four minor roads;
·20 tracks;
·an aircraft landing ground and an airfield runaway;
·one building;
·10 fence lines;
·three well/bore with windmill; and
·three non perennial watercourses.
The report from the DAA Database shows that there are no Aboriginal sites located on the proposed licence which have been registered with the DAA
There do 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: one 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; and one stipulating no interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
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 DoW.
Native title party contentions
The native title party’s contentions are summarised as follows:
Interference with Community or Social Activities (s 237(a))
·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.
·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.
·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.
·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.
Interference with Areas or Sites of Particular Significance (s 237(b))
·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.
·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.
·The provisions of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) provide for a ministerial discretion to permit interference with Aboriginal sites.
·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.
·The Government party has not proposed a condition be imposed requiring the grantee party to enter into a Wutha Heritage Protection Agreement or for the grantee party to enter into some form of site identification and protection process.
·Exploration activity may destroy sites.
Major Disturbance to Land or Waters (s 237(c))
·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.
·Account needs to be taken of the community life, customs, traditions and cultural concerns of the native title party.
As stated above, the native title party has not provided any material in support of its contentions. I also note that the native title party’s contentions in this matter are largely identical to those it made in Doray Minerals Limited, Gianni and Cliffs Asia Pacific.
Grantee party contentions and evidence
The grantee party has made submissions, including several maps showing various aspects of the area of the proposed licence and a DAA report, which are summarised as follows:
·The proposed licence has numerous major roads traversing it and infrastructure on it, including Banjaward woolshed and a large airstrip and aircraft hanger.
·The grantee party has offered the Regional Standard Heritage Agreement (‘RSHA’) to the Mantjintjarra Ngalia #2 Claimants [but not the native title party in this matter; presumably because the Government party’s policy is to require grantee parties to offer the RSHA to at least one native title party] and the grantee party submits that this displays a willingness to abide by the heritage protection requirements.
·The grantee party, through syndicate members, has carried out two heritage surveys over the proposed licence and adjoining tenements. The surveys were carried out by anthropologist Mr Daniel De Gand on 13-15 December 2012 and ‘involved the Tjupan, and Koara peoples, and other members of the Wutha Claimant Group.’
·The grantee party submits that some of the land surveyed was not subject to a native title claim when the tenement was granted; however, the grantee party still had these areas surveyed to ensure that sites would not be disturbed. The grantee party submits, ‘This is proof that we regard Heritage matters very seriously.’
·No earthworks, drilling programs or intensive exploration activity is currently planned for the proposed tenement, only minimal impact work. The grantee party outlines that it intends to explore with a wide-spaced soil and/or auger sampling program over the proposed licence, which involves walking along in lines, taking a 100 gram soil sample from a depth of approximately 10 centimetres with a small shovel, or using a small auger rig mounted on a 4WD Landcruiser to take a shallow auger sample in areas that do not have sufficient soil depth. The grantee party states that this would be done on a nominal grid system with a hand held Global Positioning System; that the lines would be 400 metres apart; and with 50 metres between samples. The grantee party states (at page 8) that ‘We will simply be driving across the tenement, totalling about a week of activity each year, we do not believe this will conflict with the Objectors carrying out their traditional activities is [sic] association with the land. We will not be camped on the tenement as we will base our work from the century old, Banjawarn Homestead.’
I note that the Government party submits (at 18) that, in the absence of any evidence to the contrary, the Tribunal should give significant weight to the way in which the grantee party intends to exercise its rights under the proposed licence.
Considering the evidence
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 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 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 performed in the proposed licence. The native title party argues that the grant of the proposed licence will interfere with its ability to access the area of 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.
The grantee party contends that its intended exploration activities will be low impact and will only total about a week of activity each year. The grantee party says that explorers will not camp on the proposed licence while carrying out exploration activity and that interference will be no greater than what has or currently occurs on the area. The grantee party states (at page 8), ‘We do not believe this activity will conflict with the Objectors maintenance of their traditions and cultural association with the land, and the activities we proposed will not “scare off” the wildlife, or destroy the plants, that they traditionally use.’
The Government party contends (at 60(d)), ‘The low-scale and infrequent exploration activities planned by the Grantee Party do not appear likely to have any real disruptive effect upon camping, hunting, foraging, or cleaning and caring for country in the proposed tenement area, particularly given the intentions of the Grantee Party to conduct those activities with cultural sensitivity and to maintain good relations with the Native Title Party.’
In reaching my conclusion, I have also had regard to the following factors:
·The area within the proposed licence is already subject to existing pastoral leases, which entirely cover the proposed licence.
·The area of the proposed licence has a history of exploration and other mining related activity.
·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.
Taking these matters into account, I find that the grant of the proposed licence is not likely to directly interfere with community or social activities carried on by the native title party.
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. The DAA Database shows that there are no recorded sites located on the proposed tenement. I note that 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.
In relation to s 237(b) of the Act, the native title party makes contentions that it cannot be said with certainty that interference with sites or areas of particular significance is not likely until a Wutha heritage protection survey has been carried out. The native title party goes on to state that the Government party has not imposed a condition requiring a heritage protection process. The native title party contends that the AHA provides for Ministerial direction to permit interference with a site or sites and also, incorrectly, that it does not offer protection unless a site is recorded.
The native title party does not contend that there are any sites or areas of particular significance located on the proposed licence, nor is any evidence of this nature provided.
The grantee party contends that Aboriginal cultural heritage surveys have already been carried out on the area of the proposed licence and that it takes heritage matters seriously.
As there is no evidence to establish that there are any sites or areas of particular significance on the proposed licence, I find that the grant of the proposed licence is not likely to lead to interference of the kind contemplated by s 237(b) of the Act.
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 as per s 237(c) of the Act, 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 (see Champion at [75]-[77] and the cases cited).
In considering whether or not the proposed licence is likely to involve major disturbance, I have also had regard to the following factors:
·The entire area is subject to pastoral leasehold, and has a history of exploration and possibly mining activity. There are also multiple roads and an airstrip located on the proposed licence. It is, therefore, likely that some level of disturbance has already occurred and, in the case of the pastoral leases, roads and airstrip, 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.
In light of these matters, I do not consider it likely that the grant of the proposed licence will result in major disturbance to the land and waters concerned as per s 237(c) of the Act.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E37/1130 to Zephyr Mining Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
29 November 2013
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