Wajarri Yamaji Aboriginal Corporation RNTBC & Simon John Lawes and Another
[2022] NNTTA 1
•14 January 2022
NATIONAL NATIVE TITLE TRIBUNAL
Wajarri Yamaji Aboriginal Corporation RNTBC & Simon John Lawes and Another [2022] NNTTA 1 (14 January 2022)
Application No: | WO2021/1164 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wajarri Yamaji Aboriginal Corporation RNTBC (WCD2017/007)
(native title party)
- and -
Simon John Lawes
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Melbourne |
Date: | 14 January 2022 |
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 or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure attracted – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 31, 151(1), 237 Aboriginal Heritage Act 1972 (WA) |
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (Cheinmora v Striker Resources) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Nyamal v Gianni) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Wajarri Yamaji Aboriginal Corporation RNTBC v Black Raven Mining Pty Ltd and Another [2021] NNTTA 80 (Wajarri Yamaji v Black Raven) |
| Representatives of the native title party: | Sharon McGuire, Wajarri Yamaji Aboriginal Corporation RNTBC Marcus Holmes, Land Equity Legal |
| Representative of the grantee party: | Simon John Lawes |
| Representatives of the Government party: | Michael McMahon and Bethany Conway, Department of Mines, Industry Regulation and Safety Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
Background
This is a decision about whether the expedited procedure applies to the proposed grant of exploration licence E51/2034 to Simon John Lawes (the grantee party/GP). By including an expedited procedure statement in their notice of the proposed grant under s 29 of the Native Title Act 1993 (Cth) (the Act), the State of Western Australia asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State asserts the grants are not likely to, in summary:
·interfere directly with community or social activities carried on by members of native title claims or determined areas (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).
At the time of this inquiry decision, the proposed licence falls within the Wajarri Yamatji Part A determination area, which came into effect on 29 July 2021 (see I.S. (Deceased) v Western Australia). The Federal Court determined native title existed, on a non-exclusive basis, over the 68,000 square kilometres (approximately) of the determined area. The Wajarri Yamaji Aboriginal Corporation RNTBC holds the determined native title in trust for the Wajarri Yamaji common law holders (the native title party/Wajarri Yamaji /NTP).
Yamatji Marlpa Aboriginal Corporation (YMAC) lodged an objection, on behalf of Wajarri Yamaji, with the National Native Title Tribunal (Tribunal/NNTT) against the inclusion of the expedited procedure (as YMAC were the representative at the relevant time). The proposed exploration licence is approximately three square kilometres in size, and is located approximately 37 kilometres south-westerly of Meekatharra. Wajarri Yamaji argue the expedited procedure should not apply because interference or disturbance with s 237(b) is likely.
The President of the Tribunal appointed me to conduct an inquiry and determine whether the expedited procedure applies. If I find the expedited procedure applies, the State can grant the licence without the parties being required to negotiate with each other. If I find it does not apply, Mr Lawes and the State must negotiate in good faith with a view to reaching an agreement with Wajarri Yamaji about the grant of the licence.
Wajarri Yamaji did not maintain their original assertion in the expedited procedure objection application that interference was likely under s 237(a) or s 237(c), and accordingly provided no evidence for these limbs in the inquiry. As stated in Ward v Western Australia (at [26]), ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided on those limbs, I find the grant of the licence is not likely to interfere directly with Wajarri Yamaji’s community or social activities (s 237(a)), or involve major disturbance to the land or waters concerned (s 237(c)). The remainder of this decision is focused on the issue of whether the grant of the licence is likely to interfere with areas or sites of particular significance to Wajarri Yamaji (s 237(b)).
The parties were content for me to make a determination ‘on the papers’ without holding a hearing, and I considered it was appropriate to do so (s 151(1) of the Act). On responding to whether or not parties were content to have the matter determined on the papers, Mr Lawes also provided some commentary, which Wajarri Yamaji sought to respond to. I allowed a further round of contentions from Wajarri Yamaji and the State in a brief period.
In that further round, the State noted that the email commentary from Mr Lawes ‘provides a clear statement of where and how the GP intends to exercise the rights that will be granted to him by the tenement applied for and can be weighed against the claims in the NTP Reply at [6] by the Tribunal in reaching its determination in the objection’. The State argue that accordingly, interference to the creeks or bore (as referred to in this decision further below), or to previously undisturbed areas, will be unlikely. In further comment, the State outlined that Mr Lawes ‘email speaks for itself as to how and where Mr Lawes intends to exercise the rights granted to him by the proposed tenement’ and did not wish to add anything further. Wajarri Yamaji’s further comments (at 7) focused on concerns about interference, noting that in their view, only a negotiated s 31 agreement would provide sufficient protection of the area, given that Mr Lawes had rejected the Wajarri Yamaji preferred heritage agreement. Their further comments also noted (at 8):
The Grantee's Email is simply a statement. It offers no guarantee that the particular places of significance will be avoided. It also offers no form of heritage agreement. The Native Title Party has no assurance that the creeks and bore will be avoided and submits (again) that the expedited procedure should not apply.
I deal with these issues further, under my consideration of s 237(b).
The Inquiry
All parties provided written submissions. Wajarri Yamaji included affidavit material from Mr Kevin Walley, a senior elder who speaks for the area of the licence. The State contentions (at 19-20) note that the affidavit material was from other expedited procedure objections which are before the Tribunal, and they were concerned as to whether Mr Walley ‘was, and is, authorised to provide evidence about the Application area’. The State also raised concerns about the circumstances of a teleconference held between Mr Walley and the native title party representative which purported to draw a link between this current inquiry, and that affidavit material. The State argued I should either not accept, or not give weight to, statements in the native title party contentions at (7) and (8). Those contentions related to:
·‘the particular significance of creeks and waterways and the concerns about impacts on such places by exploration activity and related water-impacting rights of the Grantee…’ (at 7)
·the evidence Mr Walley gave by teleconference, namely:
othere are ‘creeks traversing the south east sector of the Application area and the fresh groundwater bore located in the north east sector of the Application area’
o‘all waterways are of special significance and Mr Walley has confirmed that these creeks and groundwater bore within the Application area are no exception to that’
o‘the bore and creeks are clearly indicated in the maps provided by the State in its initial documentation filed in this matter’ (at 8).
The State was concerned (as outlined at 21 of their contentions), that ‘there is nothing before the Tribunal as to what information or materials Mr Walley had regard to before providing the conclusions recorded from the or during the teleconference’ (for example, knowledge of the creeks referred to in the south-east of the proposed licence, and the bore located in the north-east). This is also in the context of the relationship of those features to the area likely to be worked by Mr Lawes, according to his licence application. The State argue (at 22) there is nothing in the materials which indicate why those areas are of particular significance to Wajarri Yamaji.
I note the Wajarri Yamaji contentions (at 9) assert that:
the evidence referred to in paragraphs 7 and 8 [as outlined at [9] above] and in Annexure A [the affidavits provided for the other inquiries] fully addresses the legal principles… [in relation to s 237(b)], showing that the areas or sites of particular significance within the Application are the creeks and the groundwater bore and that the Wajarri have traditional obligations and rights regarding these areas and sites’.
The Tribunal’s ‘Notes on revised directions for expedited procedure objection applications’ (issued on 29 March 2019) form part of its operating procedures, and allow that, where appropriate, the Tribunal may receive evidence in a variety of ways:
For example, a native title party may seek to rely on video and/or audio evidence, signed statements, anthropological and/or archaeological reports, and/or evidence forming part of connection material. Where a party is seeking to rely on part/s of material prepared for another purpose (e.g. as part of a native title determination application), the party should direct the Tribunal’s attention to the particular information relevant to the inquiry’.
These notes were referenced in the Wajarri Yamaji materials.
I accept the way Wajarri Yamaji have provided the evidence, as they have explained the mechanism of the teleconference with Mr Walley (particularly in their reply submission, as outlined at [16]-[18] below), and they have attached the evidence from the other inquiry matters in Appendix A. Given that all parties have limited resources as a general rule, I accept that materials and evidence may relate to more than one expedited procedure inquiry. Whether or not the evidence is persuasive, in relation to the relevant inquiry, I have dealt with below in my consideration of s 237(b).
Section 237(b) - is the grant of the licence likely to interfere with areas or sites of particular significance to Wajarri Yamaji?
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]).
It is important to note that apart from the comments provided by Wajarri Yamaji as taken from Mr Walley during a teleconference (as outlined at [9] above), the bulk of the evidence relied upon by the native title party is material provided for other inquiries. Member Cooley has determined a number of those inquiries recently in Wajarri Yamaji v Black Raven, and I draw on some of her comments and observations for this present inquiry.
Looking at the affidavit material provided for Wajarri Yamaji v Black Raven (which is affidavit material relied upon for this present inquiry), I note those tenements are between approximately 50-120 kilometres north-west of the proposed licence in this inquiry. Similarly, the other affidavit material relied upon in this current matter relates to another inquiry yet to be determined (WO2021/0763) where the tenement is approximately several hundred kilometres north-west of the proposed licence in this inquiry. It is important to note I am considering the evidence and materials in relation to the proposed licence E51/2034, which is the subject of this present inquiry.
Wajarri Yamaji v Black Raven (WO2020/0790-791 and WO2021/0708-709)
I note and adopt Member Cooley’s comment in Wajarri Yamaji v Black Raven (at [35]): ‘There is a distinction between the significance of the native title party’s country generally and areas or sites of particular significance within the meaning of s 237(b)’.
I also adopt Member Cooley’s supporting comments made at [34]-[37] of that decision.
Member Cooley noted in Wajarri Yamaji v Black Raven (at [51]-[52]) that:
Mr Walley’s evidence intimates there is a special character attaching to the licences due to their location in a Yulga or floodplain. However, that evidence is brief and it is not clear whether it is for that reason that bimarra are said to be located in all of the waterways in this area or not. There is also no explanation of the significance of the Yulga or floodplain in accordance with the bimarra tradition.
However, apart from the general assertion that bimarra exist in all rivers, creeks and waterholes in the area of the licences, Mr Walley does identify a number of specific bimarra locations…
Mr Walley states (at 4) that the applications in WO2020/0790-791 and WO2021/0708-709 form part of the Yulga (floodplain), including creeks and waterholes, the Hope River, as well as Gurli Pool and the Mingah Range (at 20-21, in relation to one of the tenements). He states they are of: ‘special and particular significance to us as special Aboriginal dreaming sites with spiritual significance and for hunting and gathering food and camping with our families including the children who we are teaching always’. I note that even though the tenements in Member Cooley’s matter were some distance from the proposed licence in the present matter, the State’s mapping indicate that the Hope River or nearby waterways run on or very near to it. Mr Walley does specifically identify two locations in this licence, namely creeks traversing the south-east of the proposed licence, and a freshwater bore in the north-east of the proposed licence (as outlined at [9] above). I address these places in more detail later in this decision.
In Wajarri Yamaji v Black Raven, Member Cooley concluded (at [54]) that:
On the information before me, I accept that Hope River, Gurli Pool and Hill Pool, all of which are identified and clearly marked on the mapping, are of particular significance to the Wajarri Yamatji due to their association with bimarra. The evidence with respect to each of these areas or sites is generally consistent with the Court’s description of bimarra as relied upon by WYAC. However, on the material provided, I am not satisfied that all rivers, creeks and waterholes in all of the licence areas are sites or areas of particular significance containing bimarra.
I accept Mr Walley has specifically referred to creeks traversing the south-east sector of the licence in this present inquiry, as well as a freshwater bore in the north-east (as noted at [9] above and elsewhere in this decision). In his affidavit evidence, Mr Walley (at 5) talks about the obligation to look after country, and says the land and waters within the application areas were created by ‘our ancestral beings’ (at 6). He does not suggest that all waterways within the licence are of particular significance, but rather he focuses on the water in those two areas.
Mr Walley goes into some detail (at 10-11, 16-17, 20) about the importance of bimarra places, its relationship to the spirit snake, and that ‘the bimarra is the focus for Wajarri connection to country, spirituality of landscape, and knowledge and use of country... each family has its own known bimarra…’. The evidence in relation to the proposed licence in this inquiry relates to the creeks traversing the south-east sector and the freshwater bore in the north-east sector (as outlined at [9] above). Given the emphasis on, and importance of, bimarra to Wajarri Yamaji, I consider the evidence in relation to the bimarra generally, and then specifically to those sites and areas identified as being on the licence in this inquiry.
Member Cooley in Wajarri Yamaji v Black Raven considered the evidence put forward in relation to bimarra (at [41]-[42] for example) and I extract that consideration here:
Mr Walley deposes to the existence of bimarra in rivers, creeks and waterholes in all of the licences. By way of explanation, Mr Walley cites parts of the description given by Griffiths J in the Wajarri Yamatji Determination 2018. However, it is helpful to extract the entirety of the Court’s reasons at [27]–[29]:
27.The term bimarra refers both to the waterhole which is the abode of the spirit snake, gudgida, or to the snake itself, which is an avatar of the mythical Rainbow Serpent. The bimarra is the focus for Wajarri connection to country, spirituality of landscape, and knowledge and use of country. Most bimarra are year-round water holes and most, but not all, are found near the Murchison River and attendant large rivers such as the Sanford and Thomas.
28.Each family has its own known bimarra which it takes care of and these bimarra collectively constitute what could be called a modern-day family "estate" within Wajarri society. The bimarra themselves are still focal points for the spirits of the 'old people' or mundungu – deceased Wajarri whose animating spirits inhabit the landscape. They maintain an interest in the life of their living relatives and can affect the lives of those living persons for good or ill.
29.The gudgida, the snake who occupies the bimarra, may be openly aggressive to outsiders and in this respect the water-snake serves to police the area from unauthorised intrusion by outsiders. One practice observed by the Wajarri Yamatji is throwing a handful of sand into a bimarra as a way of letting the gudgida know that you belong there, that you are a person who belongs to that country, or that you are accompanying such a person to the vicinity of the bimarra.
As noted by Member Cooley in Wajarri Yamaji v Black Raven (at [46]-[48]):
In my view, the Court’s description of the bimarra as extracted above is relevant and helpful insofar as it describes the bimarra and its significance to Wajarri Yamatji. Mr Walley also accepts and repeats parts of the Court’s description in his affidavit. There is also ample authority and evidence to support WYAC’s submission that waterholes or waterways containing bimarra are of particular significance in accordance with Wajarri Yamatji tradition.
What is not clear is the extent to which that particular significance applies to all rivers creeks and waterholes…
Member Cooley emphasises (at [44]):
While there is, as I have outlined, a distinction to be drawn between the significance of the native title party’s country generally and sites or areas of particular significance for s 237(b), there is nothing in s 237(b) that would preclude all features or sites of a particular type being of special or more than ordinary significance in accordance with tradition…As always, concluding that an area or site is of particular significance will depend on the evidence.
I must consider whether or note the evidence provided by the native title party supports a conclusion that sites or areas of particular significance exist for the purposes of s 237(b) in relation to E51/2034.
WO2021/0763
As noted above, evidence I must consider for this present inquiry was provided in Wajarri Yamaji v Black Raven, and it has also been presented for consideration in a yet to be determined inquiry (WO2021/0763). In WO2021/0763, Mr Walley makes similar assertions (at 4) regarding the importance of the Yulga (floodplain), including creeks and waterholes, as I have summarised at [20] above. Other references in that material largely relate to the area relevant to WO2021/0763.
Are there areas or sites of particular significance to Wajarri Yamaji on the proposed licence?
The State materials show three fences, two hydrology points referred to as bores, seven tracks and three watercourses are on the proposed licence. They also note there are no sites or places recorded on the Aboriginal Heritage Inquiry System (AHIS) under the Aboriginal Heritage Act (AHA). However, as has been outlined in many Tribunal decisions, regardless of whether or not a site or area is recorded under the AHA, it is still be possible for a native title party to establish that an area or site is of particular significance to them in accordance with their traditions for the purposes of s 237(b) of the Act.
The State argue (at 23) that Mr Walley’s two affidavits (both at 4) refer specifically to areas on the tenements in the other inquiries (for example, Hope River, creeks and Gurli Pool), and refer generally to the significance of areas part of the Yulga (floodplain). I have already noted the proximity of the Hope River or waterways to the proposed licence (at [20] above).
Wajarri Yamaji respond to the State’s concerns in their reply. For example, they assert:
·‘The critical significance of the bimarra to Wajarri has been expressly recognised by Hon Justice Griffiths of the Federal Court in his various Wajarri Determination judgments and that and other evidence about the bimarra and the particular significance of all waterways is set out in detail in [Mr Walleys’ affidavits]’ (at 2)
·Mr Walley confirmed the significance applied ‘to the creeks and bore within this tenement application’ (at 3).
As to the argument from the State that affidavit evidence from Mr Walley was not specifically provided for the proposed licence in this inquiry, the Wajarri Yamaji reply argue that:
·Mr Walley confirmed the application of those contentions and that evidence in this case too to the creeks and bore within this tenement application area through a teleconference with this firm on 11 October 2021 in which the Grantee exploration plans, the State's information (including tenement maps), and Mr Walley's direct knowledge of the area were discussed (at 3)
·Additional evidence was provided by teleconference with Mr Walley on 11 October 2021, with Mr Walley having fully reviewed the Grantee's exploration proposal and the State's other initial documentation including the tenement maps. Mr Walley confirmed he is also familiar with the tenement area and environs… Mr Walley is the senior elder who has been designated earlier this year by members of the Ngoonooru Wajarri sub-group of Wajarri native title holders to provide evidence in all expedited procedure matters that go to NNTT Member inquiry. From time to time, it may be that the evidence of other elders is required but that is not the case here (at 7.5)
As far as I can see, that ‘additional evidence’ (referred to at [32] above, in paragraph 7(5) of the native title party reply) is outlined at paragraph 7 of the Wajarri Yamaji initial contentions (as referred to at [9] above). It is up to the Member conducting an inquiry as to how they will consider evidence and materials. My task is to consider the ‘additional evidence’ as well as the affidavits provided for those other inquiries, and decide if it has been established whether or not a) there are sites or areas of particular significance on or near the proposed licence and if so, b) those sites or areas will be subject to interference from the activities subsequent to the grant of the proposed licence.
I am satisfied Mr Walley has identified the creeks traversing the south-east and the freshwater bore in the north-east of the proposed licence. I am also satisfied he has outlined how such waterways are linked to the traditions of the native title party, and why they are of particular significance to the native title party, in the context of the bimarra. As such, I must now consider whether those areas of particular significance are likely to be subject to interference from exploration activities likely to be conducted on grant of the proposed licence.
Is the grant of the licence likely to interfere with sites or areas of particular significance?
The Wajarri Yamaji contentions (at 8) outline their view that an agreement is needed with Mr Lawes under s 31 of the Act to clarify arrangements about the location of likely exploration activities, including conduct of a heritage survey. Wajarri Yamaji argue in the absence of an agreement, the proposed exploration activity of the Mr Lawes ‘as described in its Proposed Program of Works Year 1, filed by the State in this matter’, will cause interference with the creeks and the freshwater bore. Wajarri Yamaji argue this could include impacting on groundwater located close to the surface.
Mr Lawes’ proposed program of works covers only year one, and refers to ‘One week of detailed reconnaissance soil sampling and metal detecting by two prospectors to follow up on alluvial gold patch previously worked at the nannine prospect’ (which Mr Lawes clarifies in his final contentions as being in the middle of the proposed licence). He also refers to the intended use of a 22 ton excavator, a 15 ton wheel loader and dry blower ‘to excavate and process material taken from testpits in areas defined by prospector reconnaissance’ a total of 20 day’s work ‘+ mobilisation’. In his contentions, Mr Lawes provides the further information that he will ‘detect the previously worked areas using better technology and machinery than was used before, and take soil samples using a dry blower’.
Mr Lawes argues in his contentions that ‘there has been extensive amount of ground worked by the previous lease holder’ and ‘These are the areas I intend to work’. He also outlines the proposed licence is on a pastoral lease and has been ‘for over 100 years, and there is a working wind mill and cattle water station. Therefore the ground has also been extensively disturbed by cattle’. His original contentions conclude that ‘My footprint will be minimal in comparison to the above disturbances of the ground’, and that he has respect for the environment and the ‘beliefs and culture of the Wajarri Yamaji people, whom are welcome to come and visits the lease for bush medicine purposes’. His final contentions assert that the area he intends to work ‘does not include any creek lines or bore area. I will not be disturbing any area around the bore or creek lines. Therefore the Wajarri Yamaji corporation can be assured any water course will be not be disturbed’.
Mr Lawes has given a plan for his first year of works, and his intention not to include creek lines or bores. However, as noted in Nyamal v Gianni (at [71]), intentions are not enforceable and once a proposed licence is granted, an explorer has various rights to explore the land, the same land in this inquiry which is also subject to the determined Wajarri Yamaji native title rights and interests. Even accepting that Mr Lawes would limit any exploration over the years he was permitted to explore to only the middle area of the proposed licence, I am not clear where that area begins and ends, and how far it extends into the east of the proposed licence where the freshwater bore and the creeks are located. The information provided by Mr Lawes is very broad.
The State (at 24, for example) relies on the intentions of Mr Lawes in relation to proposed exploration activity, to assert there is unlikely to be interference of the kind contemplated by s 237(b). In addition, (at 12, for example) the State relies on its regulatory regime under the AHA for protections against interference of the kind envisioned in s 237(b). In relation to the State’s arguments around interference, I adopt Member Cooley’s reasoning (at [92] of Wajarri Yamaji v Black Raven):
The State also says little on the question of the risk of interference. It argues that protection would be afforded by the Aboriginal Heritage Act 1972 (WA) (AHA), although it does not particularly say how. I do not find the State’s arguments particularly compelling, by raising points which have been addressed by the Tribunal previously (see for example Bunuba v Oladiopo at [52]-[53]).
Mr Walley (at 8-9) raises concerns about a grantee’s:
water licence [with which] they can tap into groundwater and the bimarra feeds from that water. Also they can alter the shape of the creeks where the bimarra is with drainage controls and stormwater retention facilities and store chemical and hazardous substances that could leak into the water.
Mr Walley argues that the State’s endorsements and conditions are not sufficient to protect these areas•
The Wajarri Yamaji reply argue:
·that Mr Lawes’ use of machinery ‘could impact the creeks and bore’ (at 6(1));
·previous interference doesn’t negate future interference (at 6(2));
·there is no guarantee Mr Lawes will avoid the creeks or bore, particularly as Mr Lawes does say he will leave a ‘footprint’ – Wajarri Yamaji argue that only an agreement will ensure the footprint will not cause interference (at 6(3)).
Wajarri Yamaji also argue (at 7) that the State’s regulatory regime is not sufficient to mitigate interference, particularly with water on the licence.
The State contentions (at 11, for example), outline that:
The State intends to impose the Draft Tenement Endorsements and Conditions provided as part of the State's Evidence on the Application. These include an endorsement drawing the GP's attention to the AHA and standard conditions as to environmental rehabilitation, and as to environmental approval being required before any ground – disturbing activities are carried out.
However, these endorsements and conditions refer to permissions and licences required by Mr Lawes from the State, rather than any communications between a native title party and Mr Lawes.
Conclusion
I accept there are sites or areas of particular significance to Wajarri Yamaji in the south-east and north-east of the licence, and that the State’s regulatory regime, including the proposed endorsements and conditions, are not sufficient to mitigate any likely interference, for the purposes of s 237(b) of the Act. For example, I do not accept endorsements 6-9, extracted below, will mitigate interference with the bimarra, which I have accepted exists in the sites of particular significance to the south-east and north-east of the proposed licence:
6 The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the Department of Water and Environmental Regulation (DWER) relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
7 The taking of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless current licences for these activities have been issued by Department of Water and Environmental Regulation (DWER).
8 Measures such as drainage controls and stormwater retention facilities are to be implemented to minimise erosion and sedimentation of adjacent areas, receiving catchments and waterways.
9 All activities to be undertaken so as to avoid or minimise damage, disturbance or contamination of waterways, including their beds and banks, and riparian and other water dependent vegetation.
In addition, I conclude that without an agreement as envisioned by s 31 of the Act, exploration activities conducted on the proposed licence are likely to cause interference for the purposes of s 237(b) of the Act.
Determination
I find the grant of E51/2034 Simon John Lawes is not an act attracting the expedited procedure.
Ms Helen Shurven
Member
14 January 2022
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