Wanparta Aboriginal Corporation/Western Australia/Bradford John Young & Julie Lynne Young
[2013] NNTTA 77
•2 July 2013
NATIONAL NATIVE TITLE TRIBUNAL
Wanparta Aboriginal Corporation/Western Australia/Bradford John Young & Julie Lynne Young [2013] NNTTA 77 (2 July 2013)
Application No: WO2012/0886
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wanparta Aboriginal Corporation RNTBC (native title party)
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The State of Western Australia (Government party)
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Bradford John Young and Julie Lynne Young (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 2 July 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109(2), 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:AB (deceased) v Western Australia (No4 4) [2012] FCA 1268
Champion v Western Australia (2005) 190 FLR 362
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109
Dann v Western Australia (1997) 144 ALR 1
Dorothy Tucker & Ors/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126
Hughes v Western Australia (2003) 182 FLR 362
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Miriuwung Gajerrong #1 (Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74
Paddy Huddleston and Ors on behalf of the Wagiman, warai and Jawoyn Peoples/Northern Territory/NT Gold Pty Ltd and Ors [2002] NNTTA 212
Parker on behalf of the Martu Idja Banykima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41
Western Australia v Thomas (1996) 133 FLR 124
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210
WF (deceased) and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72
Representative of the Mr Michael Meeghan, Yamatji Marlpa Aboriginal Corporation native title party: Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation
Representatives of the Ms Rosanna Hill, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Ken Green, Green Legal
grantee party:
REASONS FOR DETERMINATION
On 18 April 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E45/4013 (‘the proposed licence’) to Bradford John Young and Julie Lynne Young (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
Accordingly to the s 29 notice, the proposed licence comprises two graticular blocks (approximately 6.42 square kilometres) situated 41 kilometres east of Port Hedland. Part of the proposed licence falls within the external boundaries of the Ngarla #2 native title determination (WCD2013/001), and the remaining area is overlapped by the following registered native title claims:
·Njamal People #10 (WC2000/005 – registered from 7 July 2000).
·Warrarn #1 (WC1995/061 – registered from 10 October 1995).
On 15 August 2012, AB (deceased), Jeffrey Brown and Charlie Coppin on behalf of the Ngarla 2 native title claim (WC2005/002) lodged an expedited procedure objection application with the Tribunal in respect of the proposed license (designated by the Tribunal as WO2012/0886). Following the determination of the Federal Court that native title exists in the relevant area, the native title rights and interests of the common law holders have since been vested in the Wanparta Aboriginal Corporation RNTBC (‘the native title party’). On 15 August 2012, a second objection was lodged on behalf of the Njamal People #10 native title claim and designated as WO2012/0891, but was withdrawn on 7 February 2013.
In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a four month period after the closing date for the lodgement of objections (in this case, 20 August 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. In the present matter, while the grantee party said it would continue to review the agreement proposed by the objectors, it informed the Tribunal that it wished to proceed with the inquiry. In consequence of the position adopted by the grantee party, the native title party requested an extension to the initial compliance dates to allow further time to gather the necessary evidence, citing expected delays associated with the conduct of law business. The Tribunal approved the request for extension. The native title party subsequently requested a further extension to the compliance dates so that it could engage counsel to assist in the preparation of the native title party’s submission, and the Tribunal varied directions accordingly.
In accordance with the amended directions, the Tribunal received the Government party’s supporting documents on 8 February 2013. The native title party provided its submissions and evidence on 18 March 2013, and the grantee party provided its contentions and evidence on 25 March 2013. The Government party’s statement of contentions was provided to the Tribunal on 29 April 2013.
At a listing hearing convened on 16 May 2013, the parties indicated that they had no further submissions and were content for the matter to proceed ‘on the papers’ in accordance with s 151(2) of the Act. I have reviewed the material before the Tribunal and I am satisfied that the matter can be adequately determined in that manner.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia (2002) 169 FLR 437, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 at [31]–[38] and [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027; Parker v Western Australia (2008) 167 FCR 340). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FLR 576, especially [41]-[57]).
Evidence in relation to the proposed acts
In addition to its statement of contentions (‘GVP Contentions’), the Government party provides the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes the underlying land tenure of the proposed licence area to be as follows:
·Historical Lease 394/798 overlapping at 100 per cent.
·Pastoral Lease (Indigenous Held) (Strelley) overlapping at 95.5 per cent.
·Road reserve (Marble Bar Road) overlapping at less than 0.1 per cent.
The quick appraisal also shows that 4.5 per cent of the proposed licence is designated as File Notation Area FNA/8790 and is managed by Main Roads Western Australia.
The quick appraisal indicates that the proposed licence areas has previously been subject to: an exploration licence granted in 1982 and surrendered in 1985, overlapping at 0.1 per cent; two mineral claims granted in 1980 and cancelled in 1981, overlapping at 5.6 and 14 per cent; and three temporary reserves granted between 1959 and 1962 and cancelled between 1962 and 1964, all of which covered the entire area of the proposed licence.
The report from the DAA Database establishes that there are no registered sites or ‘other heritage places’ within the proposed licence. There does not appear from the Government party’s documents or Tribunal mapping to be any Aboriginal communities within the proposed licence or the surrounding area.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]). The proposed licence will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease to be notified of the grant or transfer of the licence and of certain activities, and another condition that confines mining on any road, road verge or road reserve to below a depth of 15 metres from the natural surface.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party also intends to impose conditions requiring the grantee party to offer to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party and the applicants in the Njamal People #10 native title claim.
Evidence of the native title party
The native title party submits that the proposed licence is not an act attracting the expedited procedure on the basis that the proposed licence is likely to interfere directly with the carrying on of the community or social activities of the native title holders and is likely to interfere with areas or sites of significance to the native title holders. Although the native title party’s objection application also addressed the question of major disturbance to land or waters, the native title party has not made any submissions on this issue.
In support of its submissions, the native title party relies on a document entitled Declaration of Charlie Coppin dated 11 March 2013 (‘Coppin Declaration’). The declaration is made in the following terms:
1.My English name is Charlie Coppin. My marrngu, or Aboriginal, names are Kurtiri and Makanykarra.
2.Makanykarra is from my country. My country is called Makanykarra and my name is Makanykarra. It’s my country name – what people call me when I’m a long way from home, like if I go out to Punmu in the desert. My father was also called Makanykarra, and his father before him, right through.
3.I have looked at a map of the area of tenement application E45/4013. My country, Makanykarra, comes close to the area. The Makanykarra area comes up to Mikurr which is a little bit of a way from the tenement. Mikurr means jealousy and it is the place of jealousy in our country. It’s an important site with a song and a story.
4.The tenement is just outside my country, not far from Mikurr.
5.The tenement is in a family area known as Pilu country. I knew the old fella, Pilu, who was known as Coombie.
6.Under our law I have the right to speak for that tenement area and I’ve walked every bit of that country
Community or social activities on the area of the tenement
7.The tenement covers part of the Tabba Tabba River. The proper name for Tabba Tabba River is Kulykungaranya.
8.Kulykungaranya is an important place for us. We do a lot of our traditional activities – hunting, camping, collecting bush food and medicines, and conducting ceremonies – in our rivers and there’s not many rivers in our country. We do all those activities in Kulykungaranya, both in and around the tenement area.
9.It’s a good area for us because it’s not far from town and it’s not fenced. It’s easy to access and there’s not a lot of cattle there messing it up.
10.Often we stop at Kulykungaranya when we’re driving through. It’s easy to pull off the highway – both from the Great Northern Highway to Broome or from the turn-off to Marble Bar, which goes alongside Kulykungaranya. When we stop we make a little fire and have a cup of tea.
11.Sometimes I shoot a maruntu there. Maruntu is a big kind of goanna and there are lots of them in Kulykungaranya where that tenement is. It’s an especially good spot for maruntu. There’s also other goannas there, like warntijiri, kankarli, and putangara.
12.There’s also different mangkuru (kangaroos), like warringanarra, marntipukarra and wijunu that we shoot sometimes, in and round where that tenement is.
13.You can also get parturra, bush turkey where that tenement is, and if you’re lucky you can get jankurna (emu) or manganya (porcupine).
14.There’s lots of trees in that tenement for ngakalyalya (cockatoo) to live – occasionally, but not often, we’ll eat some of them. We take them when they’re young.
15.There’s also lots of Jalkupurtu (paperbark) in the Kulykungaranya, including right where that tenement is. Jalkupurtu is an important tree for us. We boil up the leaves for a kind of medicine. Also we use the bark and the leaves in our traditional cooking. Our traditional cooking is one of the ways we keep our connection with our country.
16.Kalkupurtu is also what we used to use to make our mayas (humpies), though we don’t really do that anymore.
17.There’s also a kind of gun tree that grows where that tenement is. We call it wurrangkura. We use it in lots of ways. You can get marawangu (grubs) from the trunk, which are good eating. The honey from the flowers is sweet and also good to eat: we call it wirriri nyangu. You can also get pirnti-pirnti, a kind of sweet tasting sap, from under the bark.
18.We also use the area to collect things for ceremonies, but that’s our private business.
19.It’s a special area in our country because it’s a river, and it’s not far from town. We are river and coast people.
20.It’s not just me that uses it. All Ngarla people stop there now and again.
Sites on the tenement area
21.There’s lots of sites around that area.
22.Kulykungaranya is an important site by itself, for the reasons I’ve already said. It’s a living area, for us and for all the animals, that was laid down at the beginning of time.
23.The tenement covers a site that we call Jurali. Jurali is the where [sic] Jurali creek splits off from Kulykungaranya, through to the big bald hill, which now has a tower on the top of it. We call the little creed Jurali, and we call the hill Jurali.
24.Jurali is the name that was laid down for that place in the manguny time (the Dreamtime). We have to look after it because it was passed down to us from our old people.
25.Just outside the tenement area is a cemetery – there’s lots of Aboriginal people buried there and it’s a place that needs to be respected. We have responsibilities for that place.
26.A little bit South of the cemetery is the old Strelley Station Homestead. It was abandoned some years ago after a cyclone. It’s an important place in our history as lots of Ngarla people lived and worked there. I worked there for old Peter Miller when I was young.
27.Strelley was sold in the 1970s to Don Macleod’s Nomads – it has been an Aboriginal owned and run station ever since then. The Nomads are mostly desert people, but we do a lot of stuff together with them.
28.On the other side of Kulykungaranya to the old Strelley homestead there’s an old out-camp. It’s special to that Nomads mob.
29.Close to the tenement, on the Hedland side, there’s some rocky outcrops that contain rockpools and grinding patches. The rockpools hold rainwater long after the rain has gone. They’re good for a drink if you’re walking through the country. We believe that these rockpools and grinding patches were put there by our spirit ancestors, in the manguny time.
30.A bit further over towards the coast there’s an area we know as Warranrinya. Warranrinya is a permanent water hole on Kulykungaranya, though it’s been dried up for a while now. There’s still water if you dig down. Warrarinya isn’t just the waterhole. It goes right up to a rocky outcrop on the Highway. You get a good view of the country from Warrarinya as you drive through.
31.A bit further over, on the Njamal side, there’s an important hill, Wanangkurrnya, but that’s for Nyamal [sic] people to talk about.
Interference from mining activities
32.We know a lot about mining – people have been doing it around here all my life. Back in the strike time my family was involved in mining tin and other things.
33.The Nomads even did some mining near where the tenement is, when I was younger.
34.What we ask from mining companies is that they come and talk to us before they go messing up the country. It’s our country and we know it better than anybody else. If they come and talk to us we can set them off in the right direction and then they can get on with their business.
35.We get along well with most mining companies.
36.The people who’ve applied for this tenement have said they don’t want to talk to us, and this makes us anxious about what they’re planning to do.
37.This is an area where I often go shooting, and lots of our young Ngarla people go shooting. If there’s mining company people looking around the area when we’re shooting then they could get a fright or there could be a misunderstanding. If they won’t talk to us then how are we supposed to know when they’re there.
38.If they set up a camp there then they might scare away the animals. They’ll be stopping us from going to one of our places that we often stop in at.
39.They might set up camp in the wrong place, They might cut down the wrong tree.
40.If they’re going to do work in that tenement then they’ll need to find a way into it from the road. There’s lots of sensitive sites around that tenement – we don’t want people just driving wherever they want. Even if they use existing tracks they might use the wrong one, and cause us trouble. We want to talk to them about how they get into the area.
Map
41.My lawyers have prepared for me a map of the sites around the tenement. It’s attached to this declaration and shows where the sites are. I don’t want this map to be publically available. One of the best ways we can protect our sites is by not telling people where they are.
This declaration is true and I know that it is an offence to provide false evidence to the National Native Title Tribunal.
I do not read and write and this declaration was read out to me by Melbermoore Mashindi.
In light of paragraph 41 of Mr Coppin’s declaration, the native title party sought a non-disclosure direction under s 155 of the Act to protect the confidentiality of the map attached to the declaration.
As the grantee party contends in its statement of contentions (‘GP Contentions’), Mr Coppin’s declaration does not meet the strict requirements of an affidavit, nor those of a statutory declaration (paragraph 4.2). The grantee party further argues that the Coppin Declaration cannot be regarded as a valid affidavit even if formal non-compliance were disregarded because it does not purport to be an affidavit, and Mr Coppin does not purport to swear or affirm the correctness of its contents. Nor can the Coppin Declaration, in the grantee party’s submission, be regarded as a valid statutory declaration because it has not satisfied the requirements for an illiterate deponent. Accordingly, the grantee party submits that the Tribunal should regard Mr Coppin’s declaration simply as a witnessed declaration that is not otherwise subject to penalties for falseness, which it says must detract from the weight accorded to Mr Coppin’s evidence (GP Contentions, paragraph 4.4). The grantee party also contends that Mr Coppin’s declaration suggests that the map referred to in paragraph 3 of the declaration is different from the map referred to in paragraph 41 of the declaration, and there is no way of confirming that the map attached to the declaration is the one referred to in paragraph 41 (GP Contentions, paragraph 5.1-5.5).
The principles governing the Tribunal’s use of material falling short of the standards required by the rules of evidence are outlined in Hughes v Western Australia (2003) 182 FLR 362 at [13]-[18] (see also Dorothy Tucker & Ors/Western Australia/Fraserx Pty Ltd [2003] NNTTA 126 at [35]). Section 109(3) of the Act provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. While the Tribunal may take the rules of evidence into account in appropriate cases, the Tribunal is entitled to have regard evidence that is logically probative, whether or not the evidence is admissible under those rules. Nevertheless, the Tribunal is also entitled to refer to rules of evidence as a guide as to what are the appropriate means of informing itself in a given case. In this regard, I accept the grantee party’s criticisms of the Coppin Declaration and the circumstances in which it was made. Consequently, I made it clear to the parties that I would only make the proposed non-disclosure directions once the Tribunbal had received an affidavit from Ms Mashindi attesting that she had read the declaration to Mr Coppin in the exact form in which it was provided to the Tribunal and identifying the map shown to Mr Coppin and referred to in paragraph 41 of the declaration.
The native title party subsequently provided the affidavit of Ms Mashindi dated 9 April 2013, in which she deposes to having read the declaration to Mr Coppin in the exact form in which it was signed by him and provided to the Tribunal. Ms Mashindi also deposes that the map annexed to Mr Coppin’s declaration is the exact map that she showed him at the same time and as referred to in paragraph 41 of the declaration. Consequently, I made the proposed direction and accept Mr Coppin’s evidence on the same basis.
As to the weight to be accorded to Mr Coppin’s evidence, I sympathise with the grantee party’s submissions. However, I have weighed these considerations against the principle that the best evidence in matters such as this is that of the person or persons who possess the traditional authority to speak for the relevant area or site: Paddy Huddleston and Ors on behalf of the Wagiman, Warai and Jawoyn Peoples/Northern Territory/NT Gold Pty Ltd and Ors [2002] NNTTA 212. Mr Coppin’s authority to speak for country on behalf of the native title holders has not been challenged. On that basis, I have given due consideration to the evidence he has given.
Evidence of the grantee party
In support of its contentions, the grantee party relies on the affidavit of Julie Lynne Young sworn on 25 March 2013 (‘Young Affidavit’). In addition to the Young Affidavit, the grantee party also provides extracts from the Heritage Survey Database maintained by the DAA in relation to surveys undertaken over portions of Tabba Tabba Creek.
Ms Young’s affidavit is made in the following terms:
1.The facts contained in this affidavit are, unless expressly stated to the contrary, within my own personal knowledge and belief and are both true and correct. In the case of facts obtained from other sources, which I have identified, I believe those facts to be true to the best of my knowledge, information and belief on the grounds stated. In the case of statements as to my husband’s statement of mind, I make those statements after having been so informed by him, and believing such statements to be true.
2.My husband and I are the applicants for E45/4013 and are accordingly the Grantee Party for this matter.
Background - Sand Miners
3.My husband and I, through our company B J Young Earthmoving Pty Ltd (ACN 060 550 067), carry on a sand mining business near the town of Port Hedland. Our business involves sand from pits located on M45/531, which is located immediately southeast of South Hedland and on M45/681 which is located approximately 8 kilometres east of South Hedland. The sand we mine is known as “pindan sand”. We sell the sand for purposes such as fill and construction in and around the town of Port Hedland.
E45/4013
4.My husband and I have applied for E45/4013 because we believe the creek bed within E45/4013 is suitable for commercial sand mining.
5.My husband and I inspected the creek bed within E45/1013 during 2012. It contains a type of river sand, which my husband and I believe can be used for such purposes as concrete manufacture.
6.Following grant of E45/4013 and the obtaining of any necessary approvals, my husband and I intend to undertake a sampling programme sufficient to allow us to apply for a mining lease under the Mining Act. We are aware that to make such an application, we will need to prepare a statement (“Mining Statement”) and mineralisation report (“Mineralisation Report”) as referred to s74(1)(ca) [sic] of the Mining Act.
7.To prepare the mineralisation report, my husband and I will need to excavate between 6 and 8 test pits at different locations on the creek bed within E45/4013 so as to assess the depth of the sand at those locations. The test pits will be excavated with an excavator. Each test pit will measure approximately 1 metre wide by 4 metres long. I believe the depth of the sand at each test pit will vary between 1 to 2 metres. At the same time, we will take between 1 and 3 samples from the material excavated from each test put and then back fill the excavations. We will aim to complete the excavation of the test pits within 1 day, including so as to avoid leaving the excavator on site overnight. Each of the samples will be approximately 5 kilograms. The samples will then be forwarded to a laboratory for analysis. The results from the laboratory will allow the preparation of a mineralisation report as referred to above.
8.To prepare the Mining Statement, my husband and I will need to comply with ss74(1a) of the Mining Act, which requires an assessment of how any sand mining will be carried [sic] on E45/4013, including the location, and the area, of land that is likely to be required for the operation of plant, machinery and equipment and for other activities associated with those mining operations.
9.To undertake that assessment, my husband and I will simply need to inspect the area of E45/4013 to identify suitable areas.
10.Once the excavations referred to in paragraph 8, and the inspection referred to in paragraph 9, have been undertaken, my husband and I intend to prepare the Mining Statement and the Mineralisation Report, and then apply for a mining lease.
11.Prior to the grant of the mining lease, I do not believe my husband or I will undertake any other exploration on E45/4013.
Aboriginal Heritage Act 1972 (WA)
12.I am aware of Aboriginal Heritage Act 1972 (WA) (“AHA”), and in particular the obligations arising under the AHA upon a holder of an exploration licence under the Mining Act 1978 (WA).
13.I am aware, for example, that section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter any “Aboriginal site”. I am also aware that the term “Aboriginal site” is defined in section 5 of the AHA as:
(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
(c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
14.I am aware of advice on the website maintained by the Department of Indigenous Affairs that:
Any Aboriginal site may:
· exist in any area of Western Australia.
· not have been recorded in the Register of Aboriginal Sites or elsewhere.
· not have been identified in previous heritage surveys or reports on that area but remains fully protected under the Act.
Therefore, the absence of any reference to an Aboriginal site in any area is not conclusive.
15.I have previously confirmed to the Tribunal by way of affidavit that I understand my obligations under the AHA. That affidavit was sworn on 25 February 2010. It was filed with the Tribunal in the matter reported as Cyril Gordon and Others on behalf of Kariyarra/Western Australia/Bradford John Young & Julie Lynne Young [2010] NNTTA 45 (31 March 2010) (“Previous Matter”).
16.As I did previously, I confirm:
(1) I am not aware that I have ever failed to comply with the law in relation to Aboriginal heritage;
(2) I have never been the subject of any prosecution under any law relation [sic] to Aboriginal heritage; and
(3) Apart from the submissions of the objector in the Previous Matter, I am unaware of any allegation that I have ever to comply [sic] with the law in relation to Aboriginal heritage.
17.My husband informs me, and I believe, that:
(1) he is not aware that he has ever failed to comply with the law in relation to Aboriginal heritage;
(2) he has never been the subject of any prosecution under any law relation to [sic] Aboriginal heritage; and
(3) apart from the submissions of the objector in the Previous Matter, he is unaware of any allegation that he had failed to comply with the law in relation to Aboriginal heritage.
18.It is my intention, based on his advice to me, my husband’s intention, to continue to comply with the AHA in respect of Aboriginal sites.
Aboriginal Sites Register
19.I am aware that a Register of Aboriginal Sites (“Register”) is maintained by the Registrar of Aboriginal Sites in accordance with the AHA.
20.Mr Ken Green of Green Legal has provided me with the following extracts from the Aboriginal Heritage Inquiry System – Heritage Survey Database for the area of E45/4013:
(1) extract showing that there are no registered Aboriginal sites within the area of E45/4013. A true copy of this extract is annexed and marked JLY1; and
(2) extract showing that there are no registered “Other Heritage Places” within the area of E45/4013. A true copy of this extract is annexed and marked JLY2.
21.Based on advice from Mr Ken Green, I believe the Survey Extract accurately represents the results of an online enquiry to the Aboriginal Heritage Inquiry System – Heritage Survey Database in respect of the area of E45/4013.
State Regional Standard Heritage Agreement (RSHA)
22.My husband and I have engaged McMahon Mining Title Services (“McMahons”) to manage administrative matters arising under the Mining Act concerning our mining tenements.
23.In accordance with a request from McMahons, on or about 15 March 2012, my husband and I signed and returned to McMahons an agreement described by McMahons as a “Regional Standard Heritage Agreement” for E45/4013.
24.I believe McMahons subsequently forwarded the “Regional Standard Heritage Agreement” for E45/4013, as signed by my husband and I, to the Objector. My belief is based on the following documents which McMahons have provided to me:
(1) copy of McMahons letter dated 15 March 2012 to Yamatji Marlpa Aboriginal Corporation which encloses the “Regional Standard Heritage Agreement” for E45/4013. A true copy of the letter is annexed and marked JLY3; and
(2) a statutory declaration by Celeste Marie Patricio, who I understand is an employee of McMahons, which states the “Regional Standard Heritage Agreement” for E45/4013 was sent to the Objectors on 15 March 2013. A true copy of the statutory declaration is annexed and marked JLY4.
25.My husband and I are happy to enter into the “Regional Standard Heritage Agreement” with the Objectors and to undertake an Aboriginal heritage survey as contemplated by that Agreement or otherwise on reasonable terms.
Guidelines for Consultation with Indigenous People by Mineral Explorers
26.My husband and I endorse the principles set out in the Guidelines for Consultation with Indigenous People by Mineral Explorers, published by the Department of Mines and Petroleum, Tenure and Native Title Branch, July 2004 (as updated). Mr Green has provided me with a copy of the Guidelines. A true copy of the document provided to me by Mr Green is annexed and marked JLY5.
Coppin Declaration
27.Mr Green has provided me with a copy of the Declaration of Charlie Coppin declared 11 March 2013. At paragraph 37, Mr Coppin says that my husband and I have said that we want to talk to Mr Coppin and his group [sic]. I have never said that. My husband informs that, and I believe to be true, that he has never said that.
At paragraph 27 of the affidavit, Ms Young denies that she or her husband have said that they want to talk to Mr Coppin and his group. This appears to be a rather unfortunate typographical error, and I have taken it to be a denial of the allegation made by Mr Coppin at paragraph 37 of his declaration.
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith v Western Australia (2001) 108 FCR 442 at [23] (‘Smith’). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
Mr Coppin gives the following evidence in relation to community or social activities:
·The proposed licence covers part of the Tabba Tabba River or Kulykungaranya, otherwise referred to as Tabba Tabba Creek (paragraph 7).
·The native title holders carry on a range of traditional activities at Kulykungaranya, both in and around the proposed licence area (paragraph 8).
·These activities include hunting, camping, collecting bush food and medicines, and conducting ceremonies (paragraph 8).
·Native title holders often stop at Kulykungaranya while driving through the area (paragraph 10).
·Kulykungaranya can be accessed from Great Northern Highway and from the turn-off to Marble Bar (paragraph 10).
·A variety of animals are hunted by native title holders in and around the proposed licence, including different species of goanna and kangaroo, bush turkeys, emus, porcupines and cockatoos (paragraphs 11-14).
·There are a number of paperbark trees along Kulykungaranya, including the portion within the proposed licence, which the native title holders use for medicine and traditional cooking, and once used for constructing humpies (paragraphs 15-16).
·The native title holders harvest grubs, honey and sap from a species of gum tree found in the proposed licence (paragraph 17).
·The native title holders use the area to collect items for ceremonies (paragraph 18).
The grantee party contends that few particulars are provided as to the areas where the activities occur and no particulars are provided as to the frequency of those activities (GP Contentions, paragraph 6.2). The grantee party also notes that the places from which Mr Coppin says the native title holders access Tabba Tabba Creek/Kulykungaranya (namely, Great Northern Highway and the intersection with Marble Bar Road) are over a kilometre from the northern boundary of the proposed licence (GP Contentions, paragraph 6.3). Furthermore, the grantee argues that, to the extent the activities described by Mr Coppin involve the harvesting of a resource, there is nothing in Mr Coppin’s evidence to suggest that the activities must only occur in and around the area of the proposed licence (GP Contentions, paragraph 6.4).
Evidence of community or social activities which is of a general and unspecified nature will generally be insufficient to support a finding that the grant of the proposed licence is likely to interfere with the activities in a substantial or more than trivial way (see WF (deceased) and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 at [14]). I accept Mr Coppin’s evidence that the native title holders carry on a range of community and activities in and around Kulykungaranya. However, there is little indication of how often the native title holders carry on these activities within the proposed licence and the surrounding area. At most, Mr Coppins says that these the activities occur ‘sometimes’ or ‘occasionally’. Mr Coppin states that the native title holders often stop by the creek while driving through the area. However, it is apparent from his evidence that these visits are short and generally take place next to the Great Northern Highway, which is outside the proposed licence area. While Mr Coppin does give evidence of a number of activities involving resources found in and around the proposed licence, his evidence does not suggest that these resources cannot be found or recovered elsewhere along the creek.
To the extent that the native title holders do carry on community or social activities within the proposed licence, I am not satisfied that the grantee party’s proposed exploration programme would have a significant effect on the conduct of those activities. Ms Young says that she and Mr Young aim to complete the excavation of the test pits within one day (Young Affidavit, paragraph 7). Even if that estimate turns out to be overly optimistic, it is highly unlikely that the work will directly interfere with any of the activities described by Mr Coppin. As the Government party contends, the low-scale nature of the proposed exploration is unlikely to have a real disruptive effect on the conduct of those activities (GVP Contentions, paragraph 45(c)). Mr Coppin says that the grantee party’s presence on the proposed licence may cause issues for the native title holders’ use of firearms for hunting. However, I agree with the grantee party’s argument (at GP Contentions, paragraph 6.7) that the responsibility for ensuring that others are not endangered by the discharge of a firearm lies with the person operating the firearm and not with members of the public. This would be the case whether or not the proposed licence were granted. In any event, the grantee party will only be in the area for a limited period of time. As to Mr Coppin’s concern that the grantee party’s presence in the proposed licence area might scare animals away, there is no evidence that this concern has any foundation. Given the short amount of time the grantee party intends to be on the ground, there is unlikely to be a significant effect on the distribution or concentration of fauna in the area.
On the basis of the evidence presented in this matter, I find that the proposed licence is not likely to interfere directly with the community or social activities of the native title holders.
Interference with sites or areas of particular significance - s 237(b)
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [16], the DAA Database shows there are no registered sites or ‘other heritage places’ within the proposed licence; however, this does not mean there are no sites or areas of particular significance to the native title party with the proposed licence area or in the vicinity. The Register of Aboriginal Sites does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
Mr Coppin gives evidence of the following areas and sites in and around the proposed licence:
·Kulykungaranya, which Mr Coppin says is an important site because of its role in the traditional life of the native title holders (paragraph 22).
·Jurali, which encompasses an area where a creek splits off from Kulykungaranya through to a ‘big bald hill’ south-east of the proposed licence (paragraphs 23-24).
·A cemetery located to the east of the proposed licence where Aboriginal people are buried and for which the native title holders have responsibility (paragraph 25).
·Strelley Station Homestead, where Mr Coppin says Ngarla people lived and worked and is ‘an important place in our history’ (paragraph 26).
·An outcamp on the opposite side of Kulykungaranya from Strelley Station Homestead, which Mr Coppin says ‘is special to that Nomads mob’ (paragraph 28).
·Rocky outcrops to the west of the proposed licence containing rockpools and grinding patches believed to be created by the spirit ancestors of the native title holders (paragraph 29).
·A permanent water hole referred to as Warranrinya, which is situated on a section of Kulykungaranya located further towards the coast, and which includes an area that extends to a rocky outcrop on the Great Northern Highway to the west of the proposed licence (paragraph 30).
·A hill referred to as Wanangkurrnya, which Mr Coppin says is located on the ‘Njamal side’ (paragraph 31).
In relation to the sites identified by Mr Coppin within the proposed licence (namely, Tabba Tabba Creek/Kulykungaranya and Jurali), the grantee party submits that Mr Coppin has not provided any basis on which the Tribunal might conclude that the sites are of particular significance to the native title holders (GP Contentions, at 7.3). The grantee party also refers (at paragraph 7.6) to the findings made by the Federal Court in AB (deceased) v Western Australia (No 4) [2012] FCA 1268, where Bennett J stated:
[374]The Ngarla say that they do not recognise Tabba Tabba Creek as being a traditional site.
[375]The evidence does not establish that Tabba Tabba Creek was used for practices associated with Ngarla (or indeed Warrarn) traditional law and customs prior to the early 1970s. The evidence does not establish directly or by inference that the Ngarla, by their traditional laws and customs, recognise any sacred or traditional site at Tabba Tabba Creek.
Furthermore, the grantee party says the Tribunal should have regard to the fact that the Heritage Survey Database shows that surveys have been undertaken over portions of the Tabba Tabba Creek, yet the creek has not been recorded on the Register as an Aboriginal site (GP Contentions, paragraph 7.14(4)).
As I observed in Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109 at [37], it is difficult to draw conclusions from the fact that a survey has not resulted in the registration of a site without having access to the relevant reports. Nonetheless, when viewed in the light of the Court’s findings, the fact that neither Tabba Tabba Creek nor any part of it was registered following those surveys carries greater weight. While no survey appears to have been conducted over those parts of the creek which are located within the proposed licence, Mr Coppin’s evidence is that the entire creek is significant to the native title holders.
By virtue of s 146 of Act, the Tribunal may adopt any findings made by the Federal Court that may be relevant to the inquiry. While I have had regard to the Federal Court’s findings, I consider it unnecessary to specifically adopt them in this instance. For the Tribunal to be satisfied that an area or site is of particular significance, the particularity of the significance must be capable of identification on the evidence before the Tribunal: see Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210. In the evidence of Mr Coppin, the significance of Tabba Tabba Creek/Kulykungaranya is derived from its role in the community life of the native title holders. However, s 237(b) refers specifically to areas or sites of particular significance in accordance with the traditions of the native title holders. Though Mr Coppin states that Tabba Tabba Creek/Kulykungaranya has been a living area from ‘the beginning of time’ (paragraph 22), this appears to contradict the Court’s finding that Tabba Tabba Creek was not used for practices associated with Ngarla traditional law and custom before the 1970s. That is not to say that Tabba Tabba Creek/Kulykungaranya is not significant to the native title holders. However, in light of the findings of Bennett J, I do not consider that Mr Coppin’s evidence explains the significance of the site or its relationship to the native title holders’ traditions to the degree necessary to support a finding that the creek is a site of particular significance.
In relation to Jurali, Mr Coppin only states that the site’s name was laid down in the manguny time (or Dreamtime) and that the native title holders have responsibilities for the site that were passed down to them from their old people. However, in the absence of further particulars about the site’s significance, I cannot find that Jurali is a site of particular significance to the native title holders.
A number of sites identified by Mr Coppin are located outside the proposed licence. Several of these sites (namely, Strelley Station Homestead, the outcamp, Wanangkurrnya and the cemetery) are situated outside the determination area and are located within the boundaries of the Njamal #10 native title claim. The fact that these sites are outside the area where the native title party holds the native title on behalf of the traditional owners does not necessarily mean that the sites are irrelevant to the issues to be determined. Section 237(b) requires the Tribunal to assess the likelihood of interference with areas or sites of particular significance to the persons who are the holders of the native title party in relation to the land or waters concerned. Though the sites are located in areas that are subject to another claim, the evidence may nonetheless establish that they are sites of particular significance to the persons on whose behalf the native title party holds the native title. That point, of course, is subject to the principle that the Tribunal may only have regard to matters relating to areas not directly affected by the act where there is a sufficiently close nexus between those matters and the land or waters concerned: Silver at [33]-[35]; Miriuwung Gajerrong #1 (Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 at [72]-[73].
Though Mr Coppin deposes that Strelley Station Homestead, the outcamp and Wanangkurrnya are significant to the native title holders, I am not satisfied that his evidence discloses a sufficient basis for concluding that the sites are of particular significance. Mr Coppin states that the Strelley Station Homestead has an important place in Ngarla history (paragraph 26). However, he does not explain in any detail the significance of the homestead in the context of the native title holders’ traditions. As for the outcamp, Mr Coppin says that the site is special to the Nomads mob, but does not address its relationship to the traditions of the native title holders. Elsewhere, Mr Coppin states that the Nomads ‘are mostly desert people’ (paragraph 27). Similarly, Mr Coppin says that Wanangkurrnya is an important hill, but that it is for Njamal people to talk about (paragraph 31). As such, I am not prepared to conclude the site is of particular significance to the native title holders for the land or waters concerned in the absence of evidence from persons with the proper authority to speak for the area. In this regard, it is relevant that the objection lodged on behalf of the Njamal #10 claim was withdrawn.
In relation to the sites referred to by Mr Coppin that are within the determination area but outside the proposed licence (namely, Warranrinya and the rocky outcrops to the west), their distance from the area targeted for exploration and the probable access points means it is unlikely the grantee party will come into contact with them. There is no suggestion in Mr Coppin’s evidence that any activities carried out by the grantee party pursuant to the grant would result in interference with these sites. Consequently, I am not satisfied that a sufficient nexus exists between the sites and the issues to be determined in this inquiry. In light of that conclusion, it is unnecessary to reach a conclusion regarding their significance to the native title holders.
The cemetery also seems to be outside the determination area, as its position on the map attached to the Coppin Declaration appears to correlate with Crown Reserve R35423, which is also described as a cemetery. According to Tribunal mapping, the reserve is located south of the determination area on the western side of Marble Bar Road. Mr Coppin does not specifically address the site’s relationship to the traditions of the native title holders. However, the Tribunal has previously accepted that burial sites may be sites of particular significance notwithstanding a lack of evidence describing the specific connection between the site and the laws and customs of the native title holders: see Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 at [43]. Although the cemetery does not lie within the determination area, Mr Coppin states that the native title holders nevertheless have responsibility for the cemetery and says it needs to be respected (paragraph 25). On that basis, I am prepared to infer that the cemetery is a site of particular significance to the native title holders.
In light of that finding, the question is whether a sufficient nexus exists between the cemetery and the proposed exercise of the rights to be granted under the proposed licence. In my opinion, such a nexus does exist. In reaching this conclusion, I have had regard to the fact that the cemetery is located between Tabba Tabba Creek, where the grantee party intends to carry out its exploration programme, and Marble Bar Road, which is likely to be the principal means of access to the proposed licence area. Considering the cemetery’s location, it is possible that the grantee party could inadvertently interfere with the site while travelling from Marble Bar Road to the creek bed. Nevertheless, I consider that such interference is unlikely. Presumably the reserve is clearly marked and can be identified from the road. In any case, the grantee party is aware of the existence and location of the cemetery, at very least through the evidence presented in this inquiry, and there are more direct ways of accessing Tabba Tabba Creek and the proposed licence area generally. I accept that the grantee party understands and intends to comply with the provisions of the AHA and endorses the principles set out in the guidelines published by the Department of Mines and Petroleum regarding consultation with Indigenous people. The grantee party’s willingness to consult with the native title holders is also evidenced by its intention to enter into an RSHA with the native title party or, alternatively, undertake an Aboriginal heritage survey on reasonable terms. Mr Coppin asserts that ‘the people who applied for’ the proposed licence said they do not want to speak with the native title holders. However, I do not accept that either Ms Young or Mr Young made any statement to that effect. If that is Mr Coppin’s belief, it is possibly an inference drawn from the fact the grantee party elected to proceed with the inquiry rather than accept the native title party’s preferred agreement. Nonetheless, I am satisfied that the grantee party will take adequate steps to avoid interference with the cemetery and any other significant sites or areas within the proposed licence.
In summary, I find that the grant of the proposed licence is not likely to interfere with areas or sites of particular significance to the native title holders.
Major disturbance to land and waters - s 237(c)
The Tribunal is required under s 237(c) to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]). The native title party has not made any submissions in relation to s 237(c). However, while the Tribunal is not obliged to make out a party’s case for it, it must still turn its mind to the statutory criteria in light of any logically probative evidence before it: see Western Australia v Thomas (1996) 133 FLR 124.
The Tribunal has generally found that the grant of an exploration licence under the Mining Act will not involve a major disturbance unless the evidence establishes that there are special topographical, geological or environmental factors that would lead members of the community to consider that the proposed activities would result in major disturbance to the land or waters: see Champion v Western Australia (2005) 190 FLR 362 at [75]-[77] and the cases cited. There is no evidence that any such factors exist in the area covered by proposed licence. Moreover, the rights which grantee party intends to exercise are fairly narrow in scope, and will be confined to the excavation of six to eight test pits on the creek bed. In the circumstances, I do not consider that the exploration programme as described by Ms Young will have a significant physical effect on the land or waters in the proposed licence.
In determining whether an act is likely to involve major disturbance to land or waters, the Tribunal must have regard to the concerns of the Aboriginal community, including matters such as the community life, customs, traditions and cultural concerns of the native title holders: Dann v Western Australia (1997) 144 ALR 1. In the present matter, Mr Coppin has expressed concern that the grantee party might set up camp in the wrong place, cut down the wrong tree or use the wrong track. However, while these concerns are relevant, they must be considered in the context of the proposed physical disturbance to land or waters: Rosas v Northern Territory (2002) 169 FLR 330. In this regard, concerns about unauthorised access are not enough to justify the conclusion that the act is likely to involve major disturbance: Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 at [44]. Though there may be circumstances in which fears about the effect of the proposed exploration on physical features of the landscape may support such a finding, they are not apparent in this case. There is no evidence that the grantee party intends to cut down any trees and it does not appear it would be necessary to do so to carry out their exploration programme. In any case, the grantee party has indicated its willingness to undertake an Aboriginal heritage survey as contemplated by the RSHA or otherwise on reasonable terms, and I am satisfied that this should allay any concerns the native title holders may have.
In determining whether the proposed licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters, I have also had regard to the following:
·The proposed licence area is currently subject to a pastoral lease, which is likely to have already caused some degree of physical disturbance and will continue to do so.
·Tribunal mapping indicates that the north-eastern corner of the proposed licence is traversed by Marble Bar Road, which the Tengraph quick appraisal classifies as a major road.
·The proposed conditions of grant require the grantee party to obtain the approval of the Department of Mines and Petroleum’s Environmental Officer before using mechanised equipment, and impose various rehabilitation requirements.
·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
·There is no evidence that the grantee party will not comply with the conditions and relevant regulatory regimes.
In conclusion, I find that the proposed licence is not likely to involve disturbance of the kind contemplated by s 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E45/4013 to Bradford John Young and Julie Lynne Young is an act attracting the expedited procedure.
Daniel O’Dea
Member
2 July 2013
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