Tjiwarl (Aboriginal Corporation) RNTBC v AXF Resources Pty Ltd
[2018] NNTTA 65
•29 October 2018
NATIONAL NATIVE TITLE TRIBUNAL
Tjiwarl (Aboriginal Corporation) RNTBC v AXF Resources Pty Ltd and Another [2018] NNTTA 65 (29 October 2018)
Application No:
WO2016/0952; WO2016/0953; WO2016/0954
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Tjiwarl (Aboriginal Corporation) RNTBC (WCD2017/001)
(native title party)
- and -
AXF Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:
Ms H Shurven, Member
Place:
Perth
Date:
29 October 2018
Catchwords:
Native title – future act – proposed grant of exploration licences – 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 or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:
Native Title Act 1993 (Cth) ss 142, 151, 155, 237
Mining Act 1978 (WA) s 66
Aboriginal Heritage Act 1972 (WA) ss 5, 18Cases:
Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum)
Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (Cheinmora v Striker Resources)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (Little v Oriole Resources)
Les Tullock and Others on behalf of Tarlpa v Allarrow Pty Ltd[2011] NNTTA 118 (Tarlpa v Allarrow)
Narrier v Justin Charles Cavallaro [2016] NNTTA 52 (Narrier v Cavallaro)
Silver v Northern Territory[2002] NNNTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley v Western Australia)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another[2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara)
Representatives of the native title party: Mr Gavin Dunn and Mr Mike Allbrook, Central Desert Native Title Services Ltd
Representative of the grantee party: Mr Michael Hunt, Hopgood Ganim Lawyers
Representatives of the Government party: Mr Francis Cardell-Oliver, State Solicitor’s Office
Ms Bethany Conway and Mr Michael McMahon, Department of Mines, Industry Regulation and SafetyREASONS FOR DETERMINATION
[1]This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licences E36/874-I, E36/875-I and E57/1047-I (the licences), to AXF Resources Pty Ltd. The State of Western Australia considers the grant of each licence is an act attracting the expedited procedure. By including an expedited procedure statement in their notice of the proposed grants, the State asserts the activities permitted under the licences are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claimant groups or native title holders (s 237(a));
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders (s 237(b)); or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned (s 237(c)).
[2]The former President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies. The licences are adjacent to each other, located in the Shire of Sandstone, and are each overlapped by the Tjiwarl native title determination (WCD2017/001), as follows:
Licence Size of licence (approx.) Overlap with Tjiwarl native title determination area (approx. percentage / square km) Location E36/874-I
188 km2
100/ 188 km2
67 km west of Leinster
E36/875-I
167 km2
98.64/ 164 km2
65 km west of Leinster
E57/1047-I
212 km2
98.68/ 209 km2
65 km east of Sandstone
[3]The Tjiwarl (Aboriginal Corporation) RNTBC (Tjiwarl) hold native title rights and interests in the licence areas, on behalf of members of the Tjiwarl and Tjiwarl #2 native title claims, as determined in Narrier v Western Australia (the native title holders). Tjiwarl exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. AXF Resources and the State argue the expedited procedure should apply.
[4]If I find the expedited procedure applies, the licences can be granted without parties being required to negotiate with each other. If I find it does not apply, AXF Resources and the State must negotiate in good faith with a view to reaching an agreement with Tjiwarl about the proposed grant of the licences. I must base my decision on the s 237 criteria. In addressing s 237 of the Act, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licences, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]). For the reasons outlined below, my determination is that the expedited procedure does not apply to any of the licences.
Preliminary evidentiary matters
[5]This matter was a contentious one with a longer than usual course. A combination of factors contributed to the time taken for the inquiry and to make this decision, including: change in representation of AXF Resources and leave requested for amendments to evidence already filed; the fact there are three licences to be granted; and the detail in the evidence provided for each of the licences (including 40 pages of contentions from the grantee). I was mindful, given the changing circumstances of this matter over time, of the need to balance the opportunity for all parties to present their case and respond to each other (see s 142 of the Act, for example) with the need to reach a decision. Parties were unable to provide an Agreed Statement of Facts and I vacated the direction for them to do so.
The native title party material
[6]Tjiwarl submitted a statement of contentions, attaching an affidavit of Mr Brett Lewis and an affidavit of Mr Sean Calderwood. I accept Mr Lewis is a native title holder and a director of the Tjiwarl (Aboriginal Corporation) RNTBC and can speak for the licence areas. Mr Calderwood is an anthropologist employed by Central Desert Native Title Services Ltd. I accept the experience of Mr Calderwood and that the evidence presented relates to the native title holders and the licence areas.
[7]Tjiwarl applied for non-disclosure directions under s 155 of the Act in relation to material contained in two additional affidavits – one from Mr Brett Lewis and one from Mr Sean Calderwood. I was satisfied that material is sensitive and, accordingly, made directions restricting the parties’ use of that information. While I have considered that evidence, I refer to it specifically in this decision only to the extent I need to make my reasons clear. Tjiwarl also submitted a statement of contentions in reply to submissions made by AXF Resources and the State.
The grantee party material
[8]AXF Resources submitted a statement of contentions along with a Quick Appraisal of the proposed licences from the Department of Mines, Industry Regulation and Safety, a tengraph extract map and a selection of maps of the determination area. AXF Resources also submitted the affidavits of Ms Jenny Johnson (policy and planning manager of Tenement Administration Services), Mr Aaron Rayner (employed by AHA logic, an Aboriginal heritage consultancy firm) and Dr Shuang Ren (the managing director of AXF Resources). While the Tjiwarl reply took issue with the qualifications and expertise of Mr Rayner, I accept the qualifications of each of these deponents and that they provided evidence on behalf of AXF Resources. Any issues in relation to disagreements about various parts of the evidence are outlined below, where relevant.
[9]Ms Johnson’s information and evidence largely related to the course of negotiations between AXF Resources and Tjiwarl and I refer to the contents in this decision only to the extent the material relates to my assessment as to whether or not the expedited procedure applies to the grant of each licence.
The State’s material
[10]The results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System (AHIS) indicate the following sites and other heritage places are recorded under the Aboriginal Heritage Act 1972 (WA) (the AHA) in the licence areas:
| Licence | Registered site number and name | Other heritage places |
| E36/874-I | 6294 Pulyku | 18309 Boundary well claypans 1 20850 Pulyku |
| E36/875-I | 18289 & 18288 Gums well 1 & Gums well 2 18982 HWE13 Milyirri Parangu | 19857 Kakalala Milyirri 20850 Pulyku |
| E57/1047-I | 10744 Booylgoo stone arrangement | 18308 Surprise Gnamma Hole 18321 Old road gnamma hole 19859 Sandstone to Agnew Site 1 19860 Sandstone to Agnew Site 2 20850 Pulyku |
[11]The initial term of grant for the licences is five years. There was disagreement between AXF Resources and Tjiwarl regarding the interpretation of the duration of the grant of these licences, in terms of possible renewal once the initial five year grant period had ended. For the purposes of this decision, I look only to the proposed five year grant period.
[12]The licence areas overlap pastoral leases, existing exploration and miscellaneous licences, and have previously been the subject of exploration licences, mineral claims and temporary reserves. The State outline in their contentions that as well as various conditions and endorsements, a condition will be placed on the licences where the native title parties may request, and the grantee party shall execute, a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
[13]Having considered the material before me, I am satisfied it is appropriate to determine the matter on the papers as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were content to proceed on the papers.
Is the grant of the licences likely to interfere directly with the native title holders’ community or social activities?
[14]The focus of s 237(a) is on the likelihood of interference with the carrying on of the native title holder’s community or social activities. I must decide whether or not there is evidence the proposed future act is likely to result in direct interference with the activity in question (see Silver v Northern Territory at [50]-[62]). In making that decision, I need to consider the nature of the activities, any traditional laws or customs which inform or influence the activities, and whether or not they would be likely to be conducted in a substantially different manner, or not at all, in relation to exploration activities which are said to be conducted if the future acts were granted. There must be evidence the likely interference of relevant exploration activities will be substantial in regards to the impact on the community or social activities – evidence of emotional or spiritual distress of members of the native title holders is not sufficient (see Walley v Western Australia at [13]-[21]).
(i) What community or social activities do Tjiwarl undertake on the licences?
[15]Tjiwarl contend the community of native title holders frequently access and remain in the area of the licences to camp for extended periods of time. Tjiwarl asserts the area contains part of a law trail which is an important part of a Dreaming trail, including activities related to a gender specific cultural practice according to the traditions of Tjiwarl. This practice is outlined in some detail in Mr Lewis’s restricted affidavit. Mr Lewis states he had an old camp within the area of E36/875-I at a location known as Tobin Bronze and Gum Well. (I note that Gum Well is in the vicinity of the AHIS recorded sites known as Gums Well). There was disagreement between parties about the location of Tobin Bronze – I accept it is on or very near to the north border of E36/875-I. Gum Well is in the north of the same licence. Mr Lewis also refers to a traditional camp within E57/1047-I at the Boolygoo Spring homestead. This appears to be within site 20850 Boolygoo Range. Mr Lewis has outlined the course of the Dreaming and law trail in relation to various wells, law grounds and sites on the respective licences, however, I do not replicate that information here due to cultural sensitivities.
[16]Tjiwarl state licences E36/874-I and E36/875-I contain areas where the community of native title holders take wutha (wild potato), which is considered to be a rare and valuable resource that is not able to be taken from other parts of the country. Mr Lewis says (at 32) ‘Wutha is a bit of a delicacy because you don’t find it in many places in the desert and it is hard to get to in the Tenements mainly in the north of E36/874-I and the south of E36/875-I because they are off the tracks in the bush.’ (I note due to evidence presented in more detail by Tjiwarl, I believe the reference to north and south in this quote were transposed, and the wutha are in the south of E36/874-I and the north of E36/875-I). Mr Lewis explains the wutha is part of a Dreaming story connected to the Boolygoo Range, and if anything happened to the wutha there ‘might be trouble – like cultural punishment.’ Mr Lewis asserts (at 37) that the community needs to be asked first so that they can protect the wutha ‘Even if someone came and made tracks through the country they might dig up the Wutha…It’s not like other plants, we only get it in this part of our country.’
[17]Tjiwarl state the licences contain a number of springs, soaks and rock holes which are relied upon by the community of native title holders when accessing the area for community and social purposes. Depot Spring appears to be a focal point for this activity. It is both a geographical feature in the centre north of E36/875-I, and Mr Lewis refers to Depot Spring more broadly as being near to the Booylgoo Range which is a sacred area for Tjiwarl. From the description he provides, I am satisfied that the Depot Spring area he refers to is in the north of E36/875-I, between Mt Anderson (which is just to the west of that licence) and the geographical feature called Depot Spring.
[18]In the immediate north-west of E36/874-I, Tjiwarl state there is a rock statue called ‘the Lady’ who is facing south toward Depot Spring. Mr Lewis says she is a kuurti (spirit) who watches the kapi (water) at the springs: ‘The lady looks after the water at this places, Boolygoo and Depot Springs’ (at 42). (I note the geographical location of Depot Spring is also described as Depot Springs in parts of the evidence). I am satisfied the rock statue is most likely the AHIS site 6294 Pulyku, which is a registered mythological site related to water. Mr Lewis explains that people in the Tjiwarl community have heard the stories for this place, and how they need permission to get water from the springs. Tjiwarl contend drilling in the vicinity of the springs, soaks and rock holes will put them at risk of drying out and also at risk of disturbing the social and community activities of Tjiwarl.
[19]Tjiwarl outline the community of native title holders access the area of E36/875-I in particular to hunt Euro (hill kangaroo) which are not readily found elsewhere within the Tjiwarl determination area, and which have cultural significance being associated with specific rites conducted by Tjiwarl. Mr Lewis states (at 60) ‘Euro only live in the hills (in the Boolygoo Range) and they are important to us because in our law, when a family member dies we go into mourning and we cut our hair to show that.’ He expresses his concerns that the area is untouched by mining, and if a mining company came to drill around Depot Spring it would frighten the Euro away. Mr Lewis notes this would make it hard for Tjiwarl to get Euro at funeral times, and they would have to go to other hill country to hunt. As there is not much hill country in the Tjiwarl determination area, he explains the need to keep it habitable for the Euro. I note Mr Rayner’s affidavit for AXF Resources includes a map showing various areas marked ‘BHP Bores’ on E36/875-I. While there is little commentary specifically about these bores, I take it they are evidence of previous exploration or mining activity in the area. I note the bores marked are to the east of Depot Spring and in the south of this licence. There are no bores marked in the north west of that licence, around the area of Depot Spring as outlined by Mr Lewis. Tjiwarl also contends the mere presence of others, including members of the grantee party, will interfere with the ability of the native title holders to use weapons to hunt.
[20]I note the State’s mapping and tengraph indicates some previous exploration tenements of limited duration on each licence, and some mining claims from the 1960’s and 1970’s which overlapped less than 1 percent each. However, as Mr Rayner notes (at 23) in relation to Mr Lewis’s evidence, cultural heritage of Tjiwarl does not appear to have thus far been greatly impacted on by past land use activities. This accords with Mr Lewis’s statements that in other areas of Tjiwarl, exploration or mining has caused changes to landscape and features important to Tjiwarl, whereas the areas of these proposed licences have not been so impacted to date.
[21]Tjiwarl state the area of E57/1047-I contains a quarry of white ochre which is used by the community of native title holders in undertaking ceremonies, and which is not readily available outside of this location. Mr Lewis says (at 50) ‘it is pretty rare for us and something that we need to protect.’ Tjiwarl contend taking even a small amount (by rock chip sampling or other means) would amount to interference with the community and social activities of the native title holders. I expand on community and social activities in relation to the quarry below at [45]-[46].
[22]There was disagreement between the contentions of AXF Resources and Tjiwarl in relation to the interpretation of the native title rights and interests Tjiwarl hold in the licence areas. However, it appeared to be common ground, and it is a matter of fact, that Tjiwarl have non-exclusive rights and interests over the majority of the licence areas, and this includes:
·The right to engage in spiritual and cultural activities in that part; and
·The right to maintain and protect places of significance on that part.
[23]AXF Resources suggest these rights and interests do not equate to the carrying on of community or social activities for the purposes of s 237(a). My view is that AXF Resources have cast the notion of social and community activities narrowly, and that such activities can and regularly do include spiritual and cultural activities (as well as maintaining and protecting places of significance).
(ii) What activities do AXF Resources propose to undertake on the licences?
[24]In their applications for the licences, AXF Resources state their intended work program is designed to target, locate and assess iron deposits. Exploration techniques used will include, but not be limited to, landsat imageries, aerial magnetics, analysis of public domain aeromagnetic and landsat data, analysis of public domain historical exploration data, geological mapping and reconnaissance, rock chip sampling and air core drilling. Dr Ren confirms in his affidavit that AXF Resources:
·Will only use existing roads or tracks to conduct activities;
·The activities will be limited to small parts of the proposed licences;
·At any one time there will be no more than two vehicles in the proposed licence areas;
·No more than ten people will be involved in exploration activities;
·Drilling will only take place if the first phase of exploration produces satisfactory results; and
Any ground disturbing activity will be subject to approval by the State.
I note each of the licences does have existing tracks. In addition, E36/875-I and
E57/1047-I have a number of minor and major roads. It is not clear though how the explorer would conduct activities such as rock chip sampling or drilling in any area away from the tracks or roads, unless the explorer only plans to drill at roadside locations and this is not clear from the evidence. Dr Ren further deposes AXF Resources is willing to plan the location and timing of its activities so as not to interfere with the community and social activities of the native title party, provided Tjiwarl inform the grantee party when and where such activities take place. There does not appear to be any mechanism in place by which to regulate this consultation process.
[25]The State proposes to grant the licences subject to a number of endorsements and conditions. The State also proposes to include the RSHA condition (as outlined at [12] above). The State contend the community or social activities relied on by Tjiwarl do not all take place within the licence areas, and those that do are relatively limited in duration, frequency and the amount of land within the licence area that is used. It asserts the grantee party’s presence on the area of the licences at any one time will be limited, and AXF Resources has undertaken to avoid interference if forewarned.
(iii) Is the grant of the licences likely to interfere directly with the community or social activities of Tjiwarl?
[26]Much of the argument between parties centred on the location of sites, and activities conducted in relation to sites. As such, my analysis of s 237(a) touches upon sites referred to by Tjiwarl. The more detailed analysis of sites, including sites of particular significance, is outlined at [47]-[72] below where I consider s 237(b).
AXF Resources contends (at 5.9) ‘…that these activities [as outlined by Tjiwarl] may be sufficient to sustain an objection under s 237(a), but submit that none of these activities on the face of the evidence provided by the NTP [Tjiwarl] would be affected, as the sites relied upon in the Lewis Affidavit are not located within the Tenements, or otherwise can be sufficiently described as to be avoided pursuant to [an RSHA].’ Tjiwarl submits this contention is generally not supported by evidence to the contrary, and argue Mr Rayner is overly dependent on the AHIS system in drawing his conclusions.
[27]For the reasons outlined above and below, I am satisfied that relevant social and community activities are conducted in relation to some sites and areas which are located on the licences, and are conducted on the licences. An RSHA is more focused on interference with sites of particular significance, rather than on regulating an explorer’s work in relation to its likely effect on social or community activities. I outline my consideration of each of the activities as outlined by Tjiwarl below, for the purposes of s 237(a).
Camping
[28]The State concede Mr Lewis and his family use some areas of the proposed licences for camping, and that he goes out there ‘at least five or six times a year’. To the extent to which other native title holders use the proposed licence areas for camping, the State contend this is unclear. I believe Mr Lewis is clear (at 7) that when ‘I talk about the “Community” in this affidavit, I am talking about members of the Tjiwarl native title claim group and also some other Aboriginal people who share our traditional laws and customs and who visit the area of the Tenements to hunt and camp out on weekends or holidays’. I accept members of the Tjiwarl community conduct social and community activities, including camping, on the licences.
[29]Tjiwarl refer to a map annexed to Mr Lewis’s affidavit which shows the Gum Well camping location located within E36/875-I and the Tobin Bronze camping location on the boundary of that licence. They submit the Tribunal should adopt a common sense approach in determining the location of the camping location referred to as Tobin Bronze. In particular, Tjiwarl assert the camping location referred to by Mr Lewis includes a range of potential areas within the immediate vicinity of Tobin Bronze and that he may set up camp on either side of the licence boundary, depending on the community and social activities to be undertaken.
[30]I accept there are various camping sites throughout the licences, used by the Tjiwarl community. I believe the area of Tobin Bronze has been overly focused on by Tjiwarl and AXF Resources in terms of their disagreement about whether it is on or off the licence - it appears from the evidence taken as a whole, that the area on and around Tobin Bronze (which is at least very near to E36/875-I), including Depot Spring and other areas in the north of E36/875-I, are intensively used for camping activities – this appears to be because of its proximity to: water sources; Euro kangaroos which are related to certain ceremony; and the Booylgoo Range.
[31]The Range overlaps part of the north of that licence. The AHIS registered and other heritage places on E36/875-I (one of which is of a restricted nature), are located in the north of that licence, and I accept that camping in the north of that licence will be substantially and directly interfered with by exploration activities in that area. Evidence in relation to camping on the other two licences is less specific and I do not conclude the evidence supports a conclusion that interference with any camping activities in those licences is sustained.
Harvesting wutha
[32]The State concedes there is evidence that Mr Lewis and his family harvest wutha in part of E36/875-I usually around Easter time, ‘We usually harvest wutha at certain times of the year, normally around Easter time when the earth is soft and it is easier to dig it out’ (at 33). The State contend this indicates that harvesting the wutha is a relatively infrequent activity, and is only usually an annual activity for Mr Lewis and his family. The State (at 21), asserts the evidence is equivocal as to how many other native title holders engage in wutha harvesting. The State argue the most that can be said is that ‘some’ native title holders engage in this activity.
[33]AXF Resources contend the area subject of the wutha harvesting are sites which are readily identifiable for the purposes of avoidance and are not located within the licence areas.
[34]
In reply, Tjiwarl contend when a holistic approach of all the evidence is considered, it is apparent that the frequency and duration of community and social activities are such that the area of the licences is used by the community throughout the year. As well as harvesting the wutha during Easter, Mr Lewis states (at 34) this does occur at other times, ‘We can harvest wutha at other times of the year’. Further, Tjiwarl submit that the ‘clear evidence of Mr Lewis’ is that the areas where the wutha grows are located within the licences and that they grow around the Boolygoo Range, although the spiritual source of the wutha is located close to, but not within
E36/875-I (as more fully described below at [61]).
[35]Tjiwarl submit there is no condition on the licences which would ensure harvesting of the wutha is not interfered with, and the only way for the wutha plant to be protected is to rely on the right to negotiate. Tjiwarl contend there is no mechanism in the RSHA for AXF Resources to consult with the native title holders in relation to this type of interference under s 237(a).
[36]I accept wutha is important to Tjiwarl law and there are particular customs associated with wutha which Tjiwarl maintain. There are also caves where spirits live who protect the wutha, and the wutha is associated with the Dreaming story. Photographs of the wutha were of assistance in my consideration of the likelihood of interference. I am satisfied the evidence establishes that wutha plants are intimately connected to the traditions of Tjiwarl. In the decisions I made in WO2014/581 and WO2014/582, where the tenements were located in a similar area containing these plants, I posed the question that while there would no doubt be interference with these plants by exploration activities, would that interference be minimal (as asserted by the explorer in that inquiry), or substantial (as asserted by Tjiwarl in that inquiry)? Evidence in this current inquiry makes a clear link between the traditions of Tjiwarl, their social and community activities, and the importance of the wutha plant in relation to those traditions and supporting activities.
[37]Evidence in relation to wutha is most clear in relation to E36/875-I, and I accept in relation to that licence, it is likely social or community activities related to Tjiwarl traditions associated with the wutha plant would be subject to direct and substantial interference by exploration activities.
Springs, soaks, rock holes and law grounds
[38]The State contend the evidence filed by Tjiwarl does not disclose evidence of any specific water sources in the licence areas which are used by current native title holders. It says Tjiwarl refers to historical use, and the use of a spring by Mr Lewis on one occasion. The State assert the evidence is insufficient to establish using that spring is a community or social activity of the native title holders.
[39]AXF Resources contend the areas subject to the identified water sources are not located within the area of the licences. Tjiwarl concede the water source known as ‘Mt Michel Rockhole’, is located marginally outside of E57/1047-I, but state this is not the only water source that is frequently accessed in the area. Mr Lewis identifies a spring located in E36/874-I shown to him by his father, and Depot Spring is located in E36/875-I. Tjiwarl argue the evidence demonstrates the licences contain numerous water sources in, or within the immediate vicinity, and within the area known as Boolygoo Range.
[40]
While there is limited information regarding social and community activities on or around other specific springs, soaks and rockholes, I accept Depot Spring on
E36/875-I is part of the law time and is used presently by Tjiwarl in conducting their community and social activities. Depot Spring is a law ground and Mr Lewis states (at 17) after ‘Depot Spring, the law time goes North to another law ground in tenement E57/1047’ (more is outlined on this under consideration of sites of particular significance). I accept that Depot Spring is a focal point of social and community activities for Tjiwarl and that direct and substantial interference is likely to occur if exploration was conducted on or near it. In relation to other water sources, there is insufficient information in my view to conclude social or community activities on or near them would suffer interference from activities of the explorer.
Hunting
[41]The State asserts the only evidence as to the frequency or duration of this activity is that it occurs during funeral times. However, Mr Lewis states (at 7) that hunting and camping occurs on weekends and holidays and is conducted by the Tjiwarl community and other Aboriginal people in the area. The State accept that at least some native title holders hunt Euro, but contend it is not possible on the evidence to say how many. Tjiwarl submit that sufficient evidence of regularity has been provided.
[42]AXF Resources contend the ability to hunt with guns may be constrained, but that any disruption may be negated by proper communication. They assert the sites where hunting is said to occur are not located within the licences. In reply, Tjiwarl say there is no evidence to support this contention. Mr Lewis states in his affidavit (at 60) ‘there’s also Euro [hill kangaroo] that live here in these hills in the Boolygoo Range, especially in the country around E36/875 because they come there to drink from the spring.’
[43]As with camping, interference with hunting is often difficult to assess. Carefully balancing all the information, I accept there are various hunting sites throughout the licences, used by the Tjiwarl community. However, due to the size of the licences and the possibility to hunt elsewhere should the activities of the explorer coincide, I do not conclude hunting will be substantially and directly interfered with by the grant of any of these licences.
Gathering ochre
[44]The State concedes there is evidence of a white ochre quarry located on E57/1047-I, and at least some of the native title holders use the quarry to obtain ochre for ceremonies. It contends given the only identified use of the ochre is ceremonial, any communal use of the quarry is likely to be limited to short periods at ceremony time. AXF Resources contend the white ochre quarry is not located within E57/1047-I. Tjiwarl assert no evidence has been provided in support of AXF Resource’s contention.
[45]Mr Lewis (at 49) outlines the collection of white ochre is for ceremonial use by the wati at law time. Based on the affidavit evidence, I accept the white ochre quarry is located within E57/1047-I. A 2018 photograph of the quarry is powerful evidence of the size and exposure of the site in context of the surrounding vegetation. I accept if AXF Resources was conducting exploration activities on or near the white ochre quarry, it would likely be a direct and substantial interference with the social and community activities associated with the use of the ochre and the ceremonial activities associated with that use.
Overall Conclusion
[46]I conclude, given the available evidence, that substantial and direct interference associated with community and social activities of Tjiwarl would occur in relation to activities of the explorer: on or near Depot Spring in E36/875-I; in relation to harvesting Wutha on E36/875-I; and in relation to the white ochre quarry on E57/1047-I.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
[47]An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]). The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
[48]AXF Resources comment on Tjiwarl’s reliance on FMG v Yindjibarndi (at [40]), that there:
is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.
AXF Resources state that the ‘Grantee Party concurs, but repeats its contention that this authority is distinguished by being in relation to the grant of mining leases, where the destruction of a site is a real and present issue’ (at 61.3). As a note of correction, FMG v Yindjibarndi was a Federal Court appeal case from a Tribunal decision which dealt with two exploration tenements, rather than a mining tenement. I accept the Tjiwarl excerpt from that case as being relevant and apply it to my reasoning in this present inquiry.
(i) What areas or sites have Tjiwarl identified in relation to the licence area?
[49]As listed above (at [10]), results from the Department of Aboriginal Affairs’ AHIS show a number of registered or recorded sites within the licence areas. Tjiwarl submit there are sites or areas that are of particular significance to traditional owner groups that have not been listed on the AHIS.
[50]Tjiwarl contest the following sites and areas are of particular significance to the native title holders:
·Boolygoo Range;
·Yarloo Creek;
·A law ground in E36/874-I associated with a spring near Yarloo Creek;
·Two wutha plants located at Depot Spring;
·The entirety of the plain to the east of Depot Spring where the wutha grows;
·A law ground in E57/1047-I with stone arrangements;
·White ochre quarry;
·The sites in the licences including the camping grounds and springs, soaks and rock holes that form part of a law trail.
[51]
Tjiwarl contend the nature and number of sites and areas of particular significance within and around the licences are such that interference of the kind contemplated by
s 237(b) of the Act is likely. They explain sites created by tjukurrpa are not sites which might be readily identifiable, and inadvertent interference by AXF Resources is distinctly possible (Tarlpa v Allarrow at [40]). Tjiwarl explain there are sites and areas which cannot be accessed by women or a certain category of men. Inappropriate access to these areas by someone of incorrect gender would be a breach of both traditional law and customs of the native title holders, and would constitute interference. I do not provide further details of these sensitive cultural issues which are outlined in the restricted affidavits. Tjiwarl say they risk sickness or physical injury in the event that part of the tjukurrpa story and the sites/areas of particular significance located within the licence areas are damaged by AXF Resources. For example, Mr Lewis states (at 18) ‘we believe that if you take a grinding stone from those places that the kuurti [spirits] will follow you and make you sick if you disturb these things on the law trail.’ Tjiwarl assert they have obligations to other members of the Western Desert Cultural Bloc to protect and maintain parts of the tjukurrpa story that manifests within the licences, and contend the AHA offers minimal protection from interference.
(ii) Are the identified areas or sites of particular significance to Tjiwarl for the purposes of s 237(b)?
Boolygoo Range – E36/874-I, E36/875-I, E57/1047-I
[52]Tjiwarl state the licences are situated on and around the area known as Boolygoo Range, which is an area/site of particular significance to the native title holders. Tjiwarl say the Boolygoo Range itself is a manifestation of a specific tjukurrpa and is of immense importance to the native title holders, particularly a certain category of men. Mr Lewis and Mr Calderwood provide details of this in a restricted affidavit which I do not repeat here due to cultural sensitivities.
[53]The State do not accept the whole of the Boolygoo Range, as opposed to particular sites within it, is a site or area of particular significance. Relying on the affidavit of Mr Rayner, the State believe it is better described as being of general significance. Further, the State submit there is no real likelihood of interference as, regardless of whether sites are registered, the AHA protects Aboriginal sites. The Boolygoo Range is recorded on the AHIS and the State assert there is a strong possibility the whole of the Range should be regarded as an Aboriginal site and protected by the AHA. As the area is publicly identified, and its location mapped in the AHIS, the State argue unintentional damage to the site from being unware of its existence is mitigated.
[54]The State contend the size and nature of the Range, and the history of exploration in the area, is relevant in determining what would amount to interference for the purposes of s 237(b). It says the Boolygoo Range is a formation of rock approximately 30 kilometres long and 5 kilometres wide and submits it is not the case that low impact activities such as rock chipping or small-scale drilling would amount to interference in the context of this physical size and nature. The State submit AXF Resources proposed works does not involve high impact activity that would cause interference.
[55]Consistent with my determination in WO2014/0581 and WO2014/0582, I find the area to the west of the Range to be an area of particular significance because of its connection to the traditions of the Tjiwarl and the wutha plant. This area intersects with part of E59/1047-I, and is not covered by the AHIS record of the Range. The evidence in this matter, including the restricted evidence provided, is more detailed and persuasive than in WO2014/0581 and WO2014/0582. I also accept, given the level of detailed evidence and information provided in this current inquiry, that Boolygoo Range itself is a site of particular significance to Tjiwarl. I address the issue of interference at [73] below.
Yarloo Creek – E36/874-I, E36/875-I
[56]Tjiwarl state E36/874-I and E36/875-I includes Yarloo Creek which is a manifestation of a specific tjukurrpa and is of immense importance to the native title holders – it is a gender sensitive area associated with traditional ceremony which I do not repeat here due to cultural sensitivities. Mapping confirms Yarloo Creek runs through both licences and appears to terminate on or near the AHIS recorded and gender restricted site of HWE Milyirri Parangu (site 18982).
[57]The State concedes that Yarloo Creek is a site of particular significance to Tjiwarl, but contend there is no real risk of interference given its limited size, the fact AXF Resources is aware of its location and significance, and the grantee party’s undertaking not to drill on sites of particular significance. Further it states AXF Resources has a policy of using buffer zones and notes their willingness to work with the native title party, including by entering into an RSHA and the possibility of conducting heritage surveys. I outline more on the notion of buffer zones at [77] onwards below, in consideration of the issue of interference. AXF Resources generally argue that sites expressed by Tjiwarl are not in fact on the relevant licences.
[58]I accept that because of its traditional significance to Tjiwarl and its association with various places on these two licences, including a gender restricted site under the AHA, the portions of Yarloo Creek on these two licences are of particular significance to Tjiwarl, and are sites which are sensitive to gender.
Law ground associated with a spring near Yarloo Creek - E36/874-I
[59]Tjiwarl state E36/874-I contains a law ground associated with a spring near Yarloo Creek. The State submit the evidence provided in Mr Lewis’s restricted affidavit is inadequate to identify the location of the law ground, other than is it is somewhere in E36/874-I, or to explain its significance.
[60]I accept there are at least two law grounds on and near the three licences in this inquiry. In relation to this one, Mr Lewis has, in his confidential affidavit, provided information about how it is important for a certain ceremony, and about its association with the Dreaming. I am satisfied it is on E36/874-I (because Mr Lewis is very clear in each of his affidavits which sites and areas are on the licences, and which are not). I am satisfied the law ground associated with the spring near Yarloo Creek is a site of particular significance.
Two wutha plants located at Depot Spring – E36/875-I
[61]Tjiwarl state there are two wutha plants located on the boundary of E36/875-I which are considered to be the source of all the wutha plants in the area, and explain it is prohibited to disturb them. Mr Lewis says (at 26) ‘Under our law, you are not allowed to take wutha from those two plants there, if you do the kuurti will haunt and come visit you’. He expresses his concerns that if they get cleared away, they will ‘lose our sacred trees and the entire Tjukurrpa’. The State agree these two wutha plants are of particular significance, and I concur. The Tjiwarl reply clarifies that they are located outside this licence, which affects my consideration of the extent to which these wutha plants are likely to suffer interference from the activities of the explorer. I address this below in my consideration of interference.
The plain to the east of Depot spring where the wutha grows - E36/874-I, E36/875-I
[62]Tjiwarl state the wutha plants that grow in an area east of Depot Spring (in the north of E36/875-I and the south of E36/874-I) are created by and connected to the tjukurrpa. Therefore they submit the areas where the wutha plant is an area/site or particular significance. The State contend the evidence does not identify this area as a site of particular significance, and it is ‘a leap too far’ to infer that any area where wutha is found is such a site.
[63]I accept the evidence relating to the wutha east of Depot Spring is insufficient for me to conclude it is a site of particular significance for the purposes of s 237(b).
Law ground with stone arrangements - E57/1047-I
[64]Tjiwarl say E57/1047-I contains a law ground with stone arrangements that are of immense significance to men who have undergone certain ritual. Mr Lewis and Mr Calderwood provide further details in their restricted affidavits. I note there is a site recorded under the AHIS in the north of E57/1047-I which is a stone arrangement (site 10744).
[65]The State concede this law ground is a site of particular significance to Tjiwarl, but contend there is no real risk of interference. The State asserts Mr Lewis’s description of the law ground align with the location and description of registered Aboriginal site 10744 Boolygoo Stone Arrangement. Mr Calderwood and Mr Rayner give opinion evidence that the two sites are the same. The Tjiwarl reply also suggest the two areas are the same.
[66]The State assert it would be an offence for AXF Resources to ‘excavate, destroy, damage, conceal or in any way alter that site’ without Ministerial consent under s 18 of the AHA, and the Tribunal should not reach anything but a conclusion that protection under the AHA will be adequate. In particular, it notes:
·There is one site of relatively limited size in an identified location.
·The site has recognisable physical features.
·AXF Resources have indicated a commitment to the protection of heritage sites by its offer to enter into an RSHA.
·AXF Resources has specifically undertaken not to drill on any identified sites of particular significance.
·AXF Resources has indicated a general willingness to work with Tjiwarl to avoid cultural or heritage issues.
[67]Given the way in which E57/1047-I is depicted in the AHIS, the State contend Mr Rayner provides a reasonable basis for concluding the site is located outside of the area. Mr Rayner says (at 19) ‘In my opinion, Mr Calderwood has confirmed AHIS Registered Site ID 10744 and the law ground are identical’ and goes on to describe the location of the law ground which he says is outside of the licence. Mr Calderwood states that in his opinion (at 6) the AHIS records the location of the site incorrectly: ‘DAA sites are not always accurate in my experience and although it is possible that it is another, different stone arrangement, I believe that the place Brett [Mr Lewis] took me to [site 10744] is located in Tenement E57/1047.’ Further, the State asserts protection afforded by the AHA is not limited to locations identified in the AHIS mapping system – it extends to Aboriginal sites as defined under s 5 of the AHA, wherever they may be located.
[68]The AHIS mapping show that site 10744 intersects with E57/1047-I, so I accept at least part of the site is on the licence. No party has touched on the fact that Mr Lewis outlined the area he was referencing is a gender restricted law ground, which he explains in some detail in his confidential affidavit. The AHIS records site 10744 as being not gender restricted, which clearly conflicts with the description of the law ground being associated with specific gender specific practices. This suggests to me that the law ground may not necessarily be site 10744, however, this is in conflict with the conclusion reached by Mr Calderwood, that they were the same site.
[69]I am satisfied the law ground is in the north west of E57/1047-I, as Mr Lewis outlines. If it is the same site as parties seem to agree, then the description on the AHIS is not fulsome. Overall, having had the benefit of considering the available evidence, mapping and the finer points of the dispute between parties about this law ground, I accept it is at least partly on this licence, and it is associated with the AHIS stone arrangement, but this stone arrangement is not necessarily the entirety of the law ground and that the law ground is a site of particular significance for Tjiwarl. Whether or not the law ground is likely to be interfered with is addressed at [74] below.
White ochre quarry
[70]For the reasons outlined at [44]-[45] above, I accept the white ochre quarry is located on E57/1047-I, is associated with ceremonial activities, and is a site of particular significance for the purposes of the traditions of Tjiwarl.
Law Trail
[71]Tjiwarl state the sites in the licence areas including camping grounds and various springs, soaks and rock holes form part of a law trail that is important to the native title holders and the men responsible for the sites. Mr Lewis says (at 13) ‘There is a very special law trail that comes from the east of the Tjiwarl claim area and heads west into these Tenements before it goes north. The law trail…is part of our Aboriginal culture where people learn things…about sites and what we call the tjukurrpa’.
[72]The Tjiwarl reply says I should follow my decision in Narrier v Cavallaro, where the law trail was held to be a site of particular significance as various sites along the law trail had been clearly identified, as had the path of the trail through the relevant area to be granted. In that matter, I held the expedited procedure did not apply, although not because of likely interference with the law trail (as there was insufficient evidence on that point). The law trail as expressed in this present inquiry appears to extend for many kilometres, and I do not accept for the purposes of this inquiry that the whole trail itself is a site of particular significance, as described. However, I have accepted that features of the trail are sites of particular significance, namely: the law ground in E57/1047-I; Booylgoo Range (which touches on all of the licences); the law ground near Yarloo Creek on E36/874-I; the portions of Yarloo Creek on E36/874-I and E36/875-I; the two wutha plants outside E 36/875-I; and the white ochre quarry on E57/1047-I.
Will there be any interference by the activities of AXF Resources with the sites of particular significance?
[73]Having identified sites of particular significance on or near the licences, the question I need to answer is whether any of these sites will be likely to be interfered with by the activities of AXF Resources.The explorer contends that none of the sites identified by Mr Lewis in his affidavit are located on any of the licences. If that were the case, it would be unlikely that any of those sites would be interfered with for the purposes of s 237(b). However, evidence clearly indicates that the following sites are on one or more of the licences: Booylgoo Range (which touches on all of the licences); the law ground near Yarloo Creek on E36/874-I; the portions of Yarloo Creek on E36/874-I and E36/875-I; and the white ochre quarry on E57/1047-I.
[74]The law ground related to E57/1047-I has been identified, but there was disagreement about the extent to which it is on that licence, and the extent to which it is related to the AHIS site on that licence. As such, I cannot be confident in reaching any firm conclusion about whether or not that law ground would likely be interfered with by exploration activities.
[75]The two wutha plants outside E36/875-I are sites of particular significance, but I conclude they are not likely to be interfered with by exploration activities because they are not on the licence. In relation to the other sites of particular significance, I consider the likelihood of interference below.
[76]As McKerracher outlined in relation to s 237(b) in FMG v Yindjibarndi (at [76]-[77]):
…the nature of interference referred to under s 237(a) NTA is not the same as the nature of interference referred to under s 237(b) NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) NTA is very broad, whereas s 237(b) NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions. This, as suggested in Parker, may require an evaluation of the extent of particular significance of the site. As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘… in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
[77]AXF Resources contend that sites identified by Mr Lewis are capable of identification by the explorer, and will be protected by the AHA. They are also confident (at 49) that buffer zones ‘will mitigate against interference of any sites of particular significance’. Policies are included with AXF Resources materials which refer to buffer zones as a possible protective mechanism, however, it is not entirely clear how they apply to the licences in this inquiry. It does not appear that any buffer zones have been negotiated, and that may be primarily because AXF Resources contend throughout their materials that in their view, the sites are not on the licences.
[78]Other policy documents which have been included by AXF Resources (such as the Aboriginal Heritage Management Plan) are not clear whether they apply solely to these licences – the wording of them and of Mr Ren’s affidavit suggests they were developed for these licences, but there is no further context around their development. My comment is that while the policies appear to endeavour to protect Aboriginal cultural heritage, they are largely predicated on the explorer being able to identify those sites. The native title party reply refers to various inconsistencies and issues in relation to clarity about the application of these policies to the work of AXF Resources, including the possibility of the policies inadvertently facilitating interference with aboriginal heritage.
[79]Under the policy ‘Working in Proximity to a Buffer Zone’, which falls under the ‘Aboriginal Heritage’ category of policies, the policy states: ‘The important cultural places that have been identified by the Tjiwarl native title holders are all located outside, but in proximity to, the exploration drilling areas. AXF Resources will use buffer zones as a mechanism to assist in preserving these places during any drill programs’. This seems directly contrary to the evidence provided by Tjiwarl, and to some extent, that provided by the State, who concede that a number of sites of particular significance do exist on the licences.
[80]Dr Ren’s affidavit, and the proposed exploration program AXF Resources lodged with the State, indicate that succeeding phases of exploration may include drilling. If the results in the first phase of exploration are unsatisfactory, it is possible there will be no ground disturbing activity. However, what the explorer regards as non-ground disturbing in the initial phases of exploration (such as rock chip sampling and track rehabilitation), are regarded by Tjiwarl as having the effect of interfering with their sites of particular significance. The complexity of the activities and sites in the licences, and their interconnectedness, is captured in Tjiwarl’s reply, for example, where they state (at 5.17):
…two wutha trees which are described as the source of the wutha and the associated tjukurrpa story. It is these trees which imbue the areas around the Boolygoo Range with particular significance and although the Native Title Party concedes that these two trees are located outside of any of the tenements, their importance is such that interference with the parts of the wutha that are located on the plain within the tenements will be considered by the native title holders to have a direct impact on the parts of the tjukurrpa connected to those two trees.
[81]Looking at each of the sites of particular significance which are on the licences, my conclusions are as follows in relation to interference:
Booylgoo Range (which touches on all of the licences)
[82]Even though this area is marked in terms of its registration on the AHIS, I conclude that activities permissible under the State’s regulatory regime, including the provisions of the AHA and an RSHA, would be such that they would directly interfere with the Range. To some extent, the issues relating to the Boolygoo Range are similar to those I addressed in Little v Lake Moore Gypsum, where a large site recorded on the AHIS database was in contention as to whether or not it was a site of particular significance and if so, whether or not it would be subject to interference from the activities of an explorer. I adopt my reasoning at [79]-[81] of that decision, and at [73] of that decision, which includes the comment that:
…as noted by Member O’Dea in Les Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124 (1 July 2011) (‘Duketon’), if the grantee party does enter into a RSHA, there can still be a likelihood that interference may occur as the RSHA only requires the conduct of surveys in circumstances where ground disturbing activity takes place.
[83]The State in the present matter suggests the given the size of the Range compared with activities of the explorer, interference is unlikely to occur. However, Tjiwarl have established the Range contains important areas, and is itself intimately connected to a law trail and other sites which are on the licences. As such, I accept that doing activities which are authorised under the States regulatory regime, are likely to interfere with the Range for the purpose of s 237(b).
The law ground near Yarloo Creek on E36/874-I; the portions of Yarloo Creek on E36/874-I and E36/875-I; the white ochre quarry on E57/1047-I
[84]I conclude that given the activities as outlined by AXF Resources, which include activities they consider are not ground disturbing, but which Tjiwarl establish would be disturbing for the purposes of the importance of these areas in relation to their native title traditions, that all of these areas would be interfered with for the purposes of s 237(b).
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
[85]The issue of whether the proposed permits are likely to involve, or create rights whose exercise is likely to involve, major disturbance requires the Tribunal to make an evaluative judgment by reference to the expectations of the whole Australian community, including Aboriginal people (see Little v Oriole Resources at [52]−[54]). The particular concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns, are relevant to that evaluation. In evaluating the disturbance, the Tribunal is entitled to have regard to the context of the proposed grant, including previous land use, the characteristics of the relevant land and waters and the relevant regulatory regime.
[86]Tjiwarl state AXF Resources, along with two other exploration companies (Dubois Group Pty Ltd and Mabrouk Minerals Pty Ltd) have been granted or have applied for exploration licences which together, cover the whole of the area known as Boolygoo Range. As stated above at [52], Tjiwarl consider the area of the Boolygoo Range subject to the various licences is part of a wider area of cultural significance to the native title holders which have had limited previous exploration. Mr Lewis notes (at 41) there is a spring in E36/874-I which is ‘a very special area to us because it is still here in its natural state. No roads, no tracks…If a mining company puts a drill here near the spring, it will cut this off and the spring there will be dry.’ Tjiwarl submit the cumulative impact of the exploration licences applied for and held by the various companies will have a major impact on the cultural and pristine environmental values of the area of the Boolygoo Range. There is little further information in relation to this limb of s 237.
[87]AXF Resources contend it is constrained from any major disturbance to land and waters without the consent and supervision of the State. AXF Resources submit that under s 63 of the Mining Act, the licences will be subject to conditions that will prevent this.
[88]I conclude the evidence does not support a conclusion that the grant of these licences is likely to involve, or create rights which is likely to involve, major disturbance to the land or waters of the licence areas.
Determination
[89]My determination is that the grant of E36/874-I, E36/875-I and E57/1047-I to AXF Resources Pty Ltd are not acts that attract the expedited procedure.
Helen Shurven
Member
29 October 2018
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