Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd
[2007] NNTTA 24
•21 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd, [2007] NNTTA 24 (21 March 2007)
Application No: WO05/662
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Scotty Birrell and Others on behalf of Koongie-Elvire (WC99/40) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Jindalee Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 21 March 2007
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 cause major disturbance to land or waters – expedited procedure not attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Hon C J Sumner
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Solicitors for the Mr Robert Powrie, Kimberley Land Council
native title party: Mr Brendan Renkin, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the Ms Kate Moran
grantee party: Hetherington Exploration & Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 29 June 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3432 (‘the proposed licence’) to Jindalee Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 22.75 square kilometres and is located 14 kilometres easterly of Halls Creek in the Shire of Halls Creek. 85.1 per cent of the proposed licence is overlapped by the Koonjie-Elvire registered claim (WC99/40 registered from 15 November 1999).
On 28 October 2005, Scotty Birrell and Others on behalf of the Koongie-Elvire (WC99/40) ('the native title party’) made an expedited procedure objection application to the Tribunal.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Although a number of meetings between the native title party and grantee party were held, including mediation assistance from the Tribunal under s 150 of the Act, no agreement could be reach which would lead to a withdrawal of the objection. With the consent of all parties the directions were amended on a number of occasions and vacated when it appeared agreement may be possible. By consent further time was allowed for the native title party to comply prior to the Listing Hearing on 23 February 2007.
The Government party lodged its contentions and evidence by 5 December 2006, the grantee party indicated it would rely on the Government party's contentions. At the listing hearing on 23 February 2007 the native title party requested until Monday 26 February 2007 to lodge its contentions and evidence. Parties agreed to the request and requested that the matter be heard ‘on the papers’, that is, without holding a further hearing. The native title party lodged its contentions and un-affirmed affidavits on Tuesday 27 February 2007. Subsequently the Tribunal received affidavits in identical form that were affirmed by the deponent. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Department of Environment Ord River Irrigation Development 1 (100 per cent overlap);
Indigenous owned Elvire pastoral lease 3114/885 vested in Lamboo Gunian Aboriginal Corporation (59 per cent overlap)
Vacant Crown Land (22.7 per cent overlap);
Sophie Downs Pastoral lease 3114/1032 (14.9 per cent overlap);
General Lease I538878 vested in LR Ward (2.1 per cent overlap);
Department of Planning and Infrastructure File Notation Area 6658 (2.1 per cent overlap);
Common and Recreation Reserve 3206 (0.6 per cent overlap); and
Road Reserve (less than 0.1 per cent overlap);
The documentation notes that there are three Aboriginal communities in the vicinity of the proposed licence: Milba approximately four kilometres north west, Nicholson Camp approximately nine and a half kilometres west (and adjacent to Halls Creek) and Wunkul approximately nine kilometres south west. Halls Creek and surrounds is a town with significant Aboriginal population including members of the Koongie-Elvire claim group (Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn QC (‘Scotty Birrell/Booth’ at p 3).
The documentation also notes there has been some exploration activity over the area of the proposed licence: One temporary reserve granted in 1963 and forfeited in 1972 (100 per cent overlap); 3 exploration licences granted in 1993 and surrendered in 1998 (overlapping at 0.1, 1.1 and 3.5 per cent); one exploration licence granted in 1994 and expired in 1999 (95.2 per cent overlap); one exploration licence granted in 2002 and forfeited in 2006 (94.1 per cent overlap); and one exploration licence granted in 2003 and surrendered in 2005 (3.6 per cent overlap). The documentation also notes that one pending exploration licence application overlaps at 85.7 per cent.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed relate to:
Providing notification to the pastoral or grazing lessee, of the grant of the licences and of certain exploration activities (conditions 5–6);
seeking permission from the Minister for State Development prior to mining on Common and Recreation Reserve 3206 (condition 7);
Department of Environment restrictions and approval requirements in relation to written notification of ground disturbing activities (where practicable), disturbing waterways, wetlands and fringing vegetation, rights of ingress to and egress from, storage and disposal of hazardous waste, abstraction of water, disruptions to the natural flow of watercourses, and activities on existing or designated future irrigation area (conditions 8-15)
Consent to mine on Canning Stock Route Reserve granted subject to no mining operations being carried out which restrict the use of the reserve (condition 16)
The following relevant Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; the Water and Rivers Commission Act 1995 and any Regulations thereunder; and the Rights in Water and Irrigation Act 1914 and any Regulations thereunder.
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.
Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) located within the proposed licence area.
The native title party’s contentions include the affidavit of Frank Sampi made in the following terms:
‘I, Frank Sampi, of Halls Creek in the State of Western Australia, affirm:
1.My name is Frank Sampi. My Aboriginal name is Bindown. I am a named Applicant of the Koongie-Elvire Native Title Claim (WC99/040).
2.I was born on 3rd April 1948 on my country, Koongie-Elvire. I now live and work in Halls Creek. I take my kids out on country in school holidays and weekends to hunt, camp and teach them our culture.
3.I am a senior man for the Koongie-Elvire Native Title Claim group and under our law I have authority to speak for country covered by that Native Title Claim. I know the area where Jindalee Resources Ltd, “the Grantee Party”, has applied for an Exploration Licence (E80/3432) well because I have been shown a map of the area and I have been to this area many times before. The map I have been shown is attached to this affidavit and is marked “A”.
4.I recognize the area clearly because the mountainous terrain is an important part of our dreaming in that area. I have been there many times before and I still take the young ones there to learn.
5.I am aware of the activities which the grantee party could do on the exploration license area under the Mining Act if they are granted the exploration licence.
INTERFERANCE WITH COMMUNITY AND SOCIAL LIFE
6.The exploration licence area is a part of Koongie-Elvire country. I know this area well because I grew up there. Now I and other Koongie people live on outstations and in Halls Creek.
7.We used to camp and hunt in that tenement area and we still do. We go out there to get bush tucker. We hunt for goanna, turkey, porcupine, emu, kangaroo, and other bush tucker. I take the young ones out there to teach them about our culture and about hunting and fishing for themselves. I take the young ones out there like my elders did for me. We still follow our laws and customs and this includes visiting andlooking after places within the tenement area.
8.I am concerned that if this area is touched by the Grantee that we can’t hunt there and teach our culture there because it will all be damaged. We will not be able to fish in the rivers or gather other bush tucker because all the animals will be gone and the plants destroyed. It is important to our community to carry on these activities as it is an important part of our culture. It is bad for everyone if there is mining in this area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
9.There are many places within this tenement area that are important to our traditional laws and customs. Under our law we must look after these places or bad things will happen to us and to the people who damage it.
10.If other people want to come to our country then they must ask the Traditional Owners, like me who speak for our country. They must not just go there.
11.There are a series of caves inside the north eastern part of the tenement area that are very important to our people. These caves are an important place of dreaming. There are paintings on the walls which depict our dreaming stories for this area. This is a men’s place. No woman is allowed there unless she first seeks permission from the male elders to go there. I can’t tell other people what the dreaming is for that area because under our law I am not allowed to. If this area was damaged it would be very bad for both the Traditional Owners and for the people who damaged the area.
12.There are law places within the tenement area that the elder men still go to practice our law and culture.
13.The Tilbura river is important to our people as a place of hunting and fishing. We traditionally take the kids there to teach them about fishing and hunting in accordance with our cultural practices.
14.If these sites are damaged by mining mob we will be very sad because they are very important places to our people. To damage these sites would be wrong and make our people very sad because it would be against our laws.
MAJOR DISTURBANCE TO LAND OR WATER
15.There would be much damage to the waters in this area if the mining company were allowed to come in. They would damage our water ways and this would affect how we hunt for food and would make it so we couldn’t follow our traditional laws and customs in that area.
16.The land in that area being damaged and disturbed would mean that traditional law places are destroyed and the way we teach culture to our young ones would not be able to happen. Damaging that land would cause bad things to happen to our people and the people who come on to that land.
17.If mining mob wants to go onto our country they should come and speak to the elders like me before they do that. They should come and ask permission before they do anything on our country, because that is our law and custom.’
The native title party’s contentions also include the affidavit of Stuart Morton made in the following terms:
‘I, Stuart Morton of Halls Creek in the State of’ Western Australia, affirm:
1.My name is Stuart Morton. I am a member of the Koongie-Elvire Native Title Claim (WC99/040).
2.I was born on 1st July 1942 on my country, Koongie-Elvire. I now live and work in Halls Creek. I teach the young kids about our culture when we take them out on country on the weekends.
3.I am a senior man for the Koongie-Elvire Native Title Claim group and under our law I have authority to speak for country covered by that Native Title Claim. I know the area where Jindalee Resources Ltd, “the Grantee Party”, has applied for an Exploration Licence (E80/3432) well because I have been shown a map of the area and I have been to this area many times before. The map I have been shown is attached to this affidavit and is marked “A”.
4.I know that area where the tenement is because we have dreaming stories there in the mountains. I have been to that area before and I still go there now.
5.I am aware of the activities which the grantee party could do on the exploration license area under the Mining Act if they are granted the exploration licence.
INTERFERANCE WITH COMMUNITY AND SOCIAL LIFE
6.The exploration licence area is a part of Koongie-Elvire country. I know this area well because I grew up there. Now, I and other Koongie people live on outstations and in Halls Creek.
7.The area covered by the tenement has places we go to get bush tucker like kangaroo, emu, turkey, goanna and echidna. We camp out there and find sugarbag and bush honey from the trees. I take the young ones out to teach them. My father did that for me. It is a good way to teach our laws and customs. We visit and look after places in the tenement area.
8.The Tilbura river is an important area for our people to fish. It is a good place to catch perch.
9.I am concerned that if this area is touched by the Grantee that we can’t hunt there and teach our culture there because the area will be damaged. The animals will leave and the water will be no good in the river. We won’t be able to find bush tucker. It is no good for this area if it is damaged. It is an important area in our culture.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.There are many places within this tenement area that are important to our traditional laws and customs. Under our law we must look after these places or bad things will happen to us and to the people who damage it.
11.If other people want to come to our country they can’t just go and look around they must ask the traditional owners like me, who speak for this country.
12.There are a series of caves inside the north eastern part of the tenement area that are very important to our people and our dreaming for this area. These caves are a man’s place. Women can only go there if they ask permission from the elders first. The paintings on the walls tell the dreaming story for that area but under our law I can’t tell you about that dreaming. Dan to this area would be bad for everyone.
13.There are places where ceremony and corroborree take place within the tenement area. These law places are very important and the elders go to these places to practice our law.
14.The Tilbura River is important to our people as a place of hunting, fishing and holding traditional ceremonies. We take the kids to this area to teach them these things.
15.There are burial places within the tenement area where the bodies of the people who had died were burned. These burial places are important to our culture and to destroy them would be very bad and make us all very sad.
16.If these sites are damaged we will be very sad because they are very important places to our people. To damage these sites would be wrong and make our people very sad because it would be against our laws.
MAJOR DISTURBANCE TO LAND OR WATER
17.There would be much damage to the waters in this area if the mining company were allowed to come in. They would damage our water ways and this would affect how we hunt for food and would make it so we couldn’t follow our traditional laws and customs in that area.
18.The land in that area being damaged and disturbed would mean that traditional law places are destroyed and we would not be able to teach the kids our culture in a traditional way. Damaging the land would cause bad things to happen to our people and the people who come on the land.
19.If a mining company wants to go onto our country they should come and ask before they do anything. It is a part of our law that people ask before they go onto the land.’
The evidence of Mr Sampi and Mr Morton is uncontested and I accept it. I accept that Mr Sampi and Mr Morton are each ‘a senior man for the Koongie-Elvire Native Title Claim group’ and have authority to speak on behalf of the native title party. Mr Sampi is one of the persons comprising the native title party applicant.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23]) and see cases cited below). Direct interference involves an evaluative judgement 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 451, ([26])). The assessment is also contextual taking account of other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The evidence suggests that the area of the proposed licence has been subject to some prior exploration activity. Nonetheless, the evidence of Messrs Sampi and Morton confirms that the native title party continue to enjoy access to the area up to the present day. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.
The uncontested evidence, including that of Frank Sampi and Stuart Morton, establishes the following facts.
Members of the native claim group and native title party live at Halls Creek and outstations in the vicinity of it.
Members of the claim group and native title party continue to engage in community and social activities which are a manifestation of their native title rights and interests on the proposed licence area. These include camping, hunting, fishing and gathering of bush tucker, teaching young people about the native title party’s culture and traditional practices, visiting and looking after places in the subject area.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. The Tribunal has also had regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). In this case the proposed licence area is 22.75 square kilometres in a claim area of 1,016.57 square kilometres.
I am satisfied that the evidence of community or social activities is not of such frequency or intensity as to make it likely that they will be interfered with by the proposed exploration. The Government party’s regulatory regime will minimise damage, which in any event is unlikely to occur over a wide area. Any disturbance to animals, river water or bush tucker will be over a limited area and of a temporary nature. Each case must be considered on its own facts, and it is my view that the evidence in this case does not take it outside the more common finding that interference with community or social activities by exploration is unlikely (see by way of comparison Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23]). Further, the factual context in this case does not suggest that previous exploration activity has had any major effect on the native title party’s community or social activities, which are still carried out over the subject area.
For the record, with respect to the native title party’s submissions relying on the statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) that the very thought of intensive exploration activity could interfere with ‘community life’ I again reject them by adopting my findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner at [22].
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are no sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
Both Mr Sampi (para 9) and Mr Morton (para 10) depose that there ‘are many places within this tenement area that are important to our law and customs.’ and ‘which must be looked after’ to avoid adverse consequences. Both refer to dreaming stories in the mountains (paras 4), a ‘men’s place’ in ‘a series of caves in the north eastern part of the tenement area’ (Sampi - para 11 and Morton - para 12), an unspecified number of law and corroborree places still used in the tenement area (Sampi - para 12 and Morton - para 13), and the Tilbura river as an important site for hunting, fishing and cultural practices including corroborees and transmission of knowledge to children (Sampi – para 13 and Morton - para 14). Mr Morton also refers to burial places of significance within the proposed licence area (para 15).
The evidence of Mr Sampi and Mr Morton is not contested and I am satisfied that the areas and sites they refer to are of particular significance to the native title party in accordance with their traditions.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
As already stated, the grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full. While I accept that the grantee will act lawfully and in accordance with the Aboriginal Heritage Act, this is a case where, in my view, the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the sites identified by Mr Sampi and Mr Morton. I make this finding based on the evidence that at least part of the subject area is site rich. Further, the series of caves referred to are associated with an important dreaming story (of such importance that it cannot be publicly repeated) and in my view constitutes an area of particular importance to the native title party where according to traditional law and custom there are restrictions imposed on access by women. The number and nature of the sites and special area to the native title party which exist on the subject area means there is a real risk of interference with them despite the protective provisions of the Aboriginal Heritage Act.
I also note that the maps provided by the Government party indicate that there are a number of registered sites to the south west of the proposed licence area. There is no evidence of the nature of these sites, but even assuming they are of particular significance to the native title party there is no reason to suspect that they will be interfered with by exploration confined to the subject area. In contrast to the sites identified by the native title party on the proposed licence area the grantee party is aware of the location of these sites as they are on the public record.
My findings in relation to s 237(b) of the Act are consistent with those in Scotty Birrell/Booth (at p 6) and the recent decision of Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Hon C J Sumner at [24]-[34].
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings on s 237(a) and s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E80/3432 to Jindalee Resources Ltd is not an act attracting the expedited procedure.
Hon CJ Sumner
Deputy President
21 March 2007
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