Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Birla Nifty Pty Ltd
[2015] NNTTA 12
•20 March 2015
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Birla Nifty Pty Ltd and Another [2015] NNTTA 12 (20 March 2015)
Application No: WO2013/0121 WO2013/0326 WO2013/0469 WO2013/0689 WO2013/0690 WO2013/0691 WO2013/0692 WO2013/1134 WO2013/1136
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WCD2002/002) (native title party)
- and –
The State of Western Australia (Government party)
- and -
Birla Nifty Pty Ltd (grantee party)
DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 20 March 2015
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts are likely to involve major disturbance to land or waters – expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 30(1), 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases:FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG Pilbara v Yindjibarndi Aboriginal Corporation’)
James v Western Australia [2002] FCA 1208 (‘James v Western Australia’)
Les Tullock and Others on behalf of Tarlpa v Allarrow Pty Ltd [2011] NNTTA 118 (‘Tullock v Allarrow’)
Little v Oriole Resources Pty Ltd (2005) 146 FLR 576 (‘Little v Oriole Resources’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia & Anor [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representative of the Mr Matthew Kinder, Western Desert Lands Aboriginal Corporation
native title party:
Representatives of the Ms Sarah Power, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Mark Borman, Birla Nifty Pty Ltd
Grantee party: Mr Stuart House, King’s Park Corporate Lawyers
REASONS FOR DETERMINATION
The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant the following exploration licences (‘the proposed licences’) to Birla Nifty Pty Ltd (‘the grantee party’) on the following dates:
Tenement
Date of notice
E45/4023
5 October 2012
E45/3761
28 December 2012
E45/3407
16 January 2013
E45/4115 and E45/1222
15 March 2013
E45/4151
27 March 2013
E45/4114
3 May 2013
E45/4205
23 August 2013
E45/4234
6 November 2013
The notices included a statement that the Government party considers the grants attract the expedited procedure (that is, that the proposed licences are acts that can be done without the negotiations required by s 31 of the Act).
The proposed licences are in the Shire of East Pilbara. The location, overlap with native title rights and interests, and size of each proposed licence is outlined in the table below:
Proposed Licence Martu Determination Overlap Approximate size (km square) Location E45/4023
100%
16,597.00
67km NW of Telfer
E45/3761
100%
6,330.1
176km SE of Telfer
E45/3407
15.01%
21,850.96
135km SE of Telfer
E45/4115
100%
372.3282
36km W of Telfer
E45/4122
100%
146.0864
36km S of Telfer
E45/4114
100%
557.471
40km W of Telfer
E45/4151
99.18%
180.8996
47km S of Telfer
E45/4205
100%
444.4071
44km S of Telfer
E45/4234
90.45%
79.2879
59km S of Telfer
Each of the proposed licences is either wholly or partially overlapped by the Martu determined area WCD2002/002 (determined from 27 September 2002). The proposed licence E45/4151 is also overlapped 0.82 per cent by the undetermined Martu claim area (WC1996/078).
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any body corporate which, three months after the notification day, is a registered native title body corporate in respect of the relevant land or waters (as per s 30(1)(b)). As per s 32(3), such a body corporate may, within the period of four months after the notification day, lodge an objection with the Tribunal. The relevant closing dates are listed in the table below:
Tenement
Four month closing date
E45/4023
5 February 2013
E45/3761
29 April 2013
E45/3407
16 May 2013
E45/4115 and E45/1222
15 July 2013
E45/4114
3 September 2013
E45/4151
29 July 2013
E45/4205
23 December 2013
E45/4234
6 March 2014
On the dates outlined in the table (at [7]), the Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalikunu) RNTBC WCD2002/002 (‘the native title party’), on behalf of its members, lodged objections to the inclusion of the expedited procedure statements in respect of the proposed licences. The native title party was registered following the determination of the Federal Court in James v Western Australia, and holds the native title rights and interests on trust for the common law holders identified in the determination. The proposed licences are situated either wholly or partially within the external boundaries of the determination area, and in each instance the relevant common law holders have been determined to hold exclusive native title.
The objections were lodged on the dates outlined in the table below, and accepted by the Tribunal pursuant to s 77 of the Act:
Tenement
Date of lodgement
E45/4023
5 February 2013
E45/3761
12 March 2013
E45/3407
9 May 2013
E45/4115
5 July 2013
E45/4122
5 July 2013
E45/4151
5 July 2013
E45/4114
5 July 2013
E45/4205
12 November 2013
E45/4234
12 November 2013
No objection was received on behalf of the undetermined Martu claim (WC1996/078) in respect of the 0.82 per cent overlap with the proposed licence E45/4151.
The matters proceeded through various preliminary and status conferences in 2013, in order to allow parties to continue negotiations. Tribunal Member McNamara was also appointed pursuant to s 150 of the Act in order to assist parties to reach an agreement in relation to these matters (designated by the Tribunal as WMO2014/001). ‘Section 150 conferences’ occurred on 22 August 2014 and 5 September 2014, however, no agreement was reached and the matters proceeded to inquiry.
I had issued directions in relation to all of the proposed licences on 9 May 2014. Pursuant to these directions, the Government party provided initial evidence on 9 July 2014 through the Department of Mines and Petroleum (‘DMP’). Those directions were held in abeyance while parties attempted to reach agreement through the s 150 process. After the termination of the s 150 process, a final amendment to directions was made on 15 October 2014. The native title party contentions were filed on 3 October 2014 (‘NTP Contentions’), and the grantee party contentions were filed on 24 October 2014 (‘GP Contentions’). The Government party, through the State Solicitor’s Office (‘SSO’) also filed contentions on 24 October 2014 (‘SSO Contentions’). The native title party was permitted to file a reply by 14 November 2014, but advised the Tribunal on 4 November 2014 that it did not wish to do so.
On 17 November 2014, the native title party confirmed via email that they did not intend to make further submissions, and agreed the matters could proceed to be heard ‘on the papers’ in accordance with s 151(2) of the Act. On 18 November 2014, the Government party and grantee party likewise confirmed that they did not seek to make any more submissions, and agreed the matters could be heard on the papers, that is, without a hearing. I have reviewed the material before the Tribunal and I am satisfied the matters can be adequately determined ‘on the papers’.
A map prepared by the Tribunal’s Geospatial Services was circulated to parties on 2 December 2014, and no party objected to the Tribunal using the map in the course of this inquiry.
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 relation to the legal principles to be applied in this matter, I adopt those outlined by President Raelene Webb QC in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [15]-[21]. I also adopt the findings of McKerracher J in FMG Pilbara v Yindjibarndi Aboriginal Corporation, which endorsed the principles outlined by President Webb in Yindjibarndi Aboriginal Corporation vFMG Pilbara.
Evidence in relation to the proposed acts
The Government party provided the following documents in relation to each of the proposed licences:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity;
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’);
·A copy of the proposed licence application;
·A Draft Tenement Endorsements and Conditions Extract; and
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features.
The Tengraph quick appraisal establishes the underlying land tenure within the proposed licences to be as follows:
E45/4023, E45/3761, E45/4115, E45/4122, E45/4114, E45/4205
·Vacant Crown land wholly overlaps each of these proposed licences.
E45/3407
·Vacant Crown land overlaps 15 per cent; and
·National Park overlaps 85 per cent.
E45/4151
·Vacant Crown land overlaps 99.2 per cent; and
·National Park overlaps 0.8 per cent.
E45/4234
·Vacant Crown land overlaps 90.5 per cent; and
·National Park overlaps 9.5 per cent.
The quick appraisals establish that the proposed licences are currently subject to the following mineral tenure:
E45/4023
·Two special prospecting authorities overlapping 77.5 per cent and 22.5 per cent respectively.
E45/3761
·One exploration permit application which is pending and overlapping 100 per cent.
E45/3407
·One exploration permit application which is pending and overlapping 11.9 per cent.
E45/4115
·One special prospecting authority overlapping 100 per cent.
E45/4114
·Three special prospecting authorities overlapping 4.9 per cent, 94 per cent and 1.2 per cent respectively; and
·Two State onshore pipeline licences each overlapping 0.1 per cent.
The quick appraisal establishes that the proposed licences have each previously been subject to numerous mining and exploration tenements, now dead and which overlapped by varying proportions. E45/4114, E45/4115, E45/4151, E45/4205 and E45/4234 are also currently overlapped by live exploration tenements, in proportions between 0.2 per cent and 4.3 per cent.
The quick appraisal establishes the following services on the proposed licences:
E45/4023
·One track
·102 non-permanent lakes (including Lake Waukarlcarly)
·Two minor non-perennial watercourses
E45/3761
·One non-permanent lake
E45/3407
·One rock outcrop
·Nine minor non-perennial watercourses
E45/4115
·Four tracks
·One non-perennial lake
·Nine non-perennial minor watercourses
E45/4122
·Five tracks
·One cliff/breakaway/rockridge
·One non-perennial minor watercourse
E45/4114
·Five historic mine sites
·Four minor roads
·20 tracks
·20 pipelines below ground
·23 non-perennial minor watercourses
E45/4151
·One non-perennial minor watercourse (Coolbro Creek)
E45/4205
·19 tracks
·Mount Isdell
·10 cliffs/breakaways/rockridges
·One non-perennial lake
·25 non-perennial minor watercourses (including Coolbro Creek)
E45/4234
·Three minor watercourses (including Coolbro Creek)
The report from the Department of Aboriginal Affairs (‘DAA’) Database establishes that there are no DAA registered sites or ‘other heritage sites’ recorded in the proposed licences E45/4023, E45/4115, E45/4122, E45/4114, E45/4151 or E45/4234. The DAA Database establishes the following sites in the other proposed licences as follows:
E45/3761
·Site ID 10493 ‘Panyalpa’, mythological
·‘Other heritage place’ ID 17799 ‘Lake Auld’, mythological
E45/3407
·Site ID 10483 ‘Pirnjurrpinyja’, mythological
E45/4205
·Site ID 6491 ‘Mt Isdell’, artefacts/ scatter, engraving, painting
·Site ID 6640 ‘Coolbro Creek 1’, artefacts/ scatter
·Site ID 11786 ‘Yantikurji (Yandagudji)’, artefacts/ scatter, ceremonial, mythological, repository/ cache, male access restricted
·‘Other heritage place’ ID 6641 ‘Coolbro Creek 2’, artefacts/ scatter
·‘Other heritage place’ ID 25381 ‘Mt Isdell Quarry 1’, artefacts/scatter, mythological, quarry, male access only
·‘Other heritage place’ ID 25382 ‘Mt Isdell Quarry 2’, artefacts/scatter, mythological, quarry, male access only
·‘Other heritage place’ ID 25383 ‘Mt Isdell Quarry 3’, artefacts/scatter, mythological, quarry, male access only.
The quick appraisal also establishes that the entire area of overlap between the proposed licences and the native title party’s determination are subject to an Indigenous Land Use Agreement (ILUA) entitled the ‘Lake Disappointment Project Mining and Indigenous WI2012/009’. The parties to this ILUA are recorded as Holocene Pty Ltd and Western Desert Lands Aboriginal Corporation (Jamukunu-Yapalikunu). Proposed licences E45/4115 and E45/4205 are also overlapped by an ILUA entitled ‘Kintyre Mining Development ILUA WI2013/002’ at 0.4 per cent and 16.9 per cent, respectively. The parties to this ILUA are recorded as Cameco Australia Pty Ltd, Martu No.1 Claim Group, MDP Uranium Pty Ltd, the Karnapyrri Claim Group and Western Desert Lands Aboriginal Corporation (Jamukunu-Yapalikunu).
According to mapping prepared by the DMP and the Tribunal, there do not appear to be any Aboriginal communities within or near the proposed licences.
The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]). These conditions are:
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
In addition, E45/3407, E45/4114, E45/4151 and E45/4234 have the further following conditions:
E45/3407
5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained with the concurrence of Minister for the Environment, before entering or commencing any exploration activity on National Park 34607.
E45/4114
5.No interference with Geodetic Survey Stations Paterson Range 10 and W.O.R.3, and mining within 15 metres being confined to below a depth of 15 metres from the natural surface.
6.The rights of ingress to and egress from Miscellaneous Licences 45/101, 45/107, 45/110, 45/128 and 45/143 being at all times preserved to the licensees and non interference with the purpose or installations connected to the licences.
7.No mining within 25 metres of either side of the Gas/Petroleum pipeline contained within Petroleum Pipeline Licence No’s 60 and 68 as shown in TENGRAPH.
8.No surface excavation approaching closer to the boundary of the Safety Zone established by condition 7 hereof than a distance equal to three times the depth of the excavation without the prior approval of the State Mining Engineer DMP.
9.No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established by condition 7 hereof without the prior approval of the operators of the Gas/Petroleum pipeline.
10.The licensee shall not excavate, drill, install, erect, deposit or permit to be excavated, drilled, installed, erected or deposited within the Safety Zone established in condition 7 hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer DMP.
11.No explosives being used or stored within one hundred and fifty (150) metres of the Gas/Petroleum pipeline without the prior written consent of the State Mining Engineer DMP.
12.Mining in the Safety Zone established in condition 7 hereof being confined to a depth of 50 metres from the natural surface unless otherwise approved by the State Mining Engineer DMP.
13.The rights of ingress to and egress from the pipeline easement established in condition 7 hereof being at all times preserved for employees, contractors and agents of the operators of the Gas/Petroleum pipeline.
14.The licensee must advise the Gas/Petroleum pipeline operator at least 48 hours in advance of any heavy vehicle crossings of the pipeline or any exploration activities adjacent to Miscellaneous Licence 45/10.
15.Such further conditions as may from time to time be imposed by the Minister responsible for the Mining Act 1978 for the purpose of protecting the Gas/Petroleum pipeline.
E45/4151
5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of the Minister for Environment, before entering or commencing any prospecting or exploration activity on National Park, Crown Reserve 34607.
E45/4234
5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of the Minister for Environment, before entering or commencing any prospecting or exploration activity on Class A Nature Reserve 34607 (National Park).
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 as to be imposed by the Government party for proposed licences E45/4023, E45/3761, E45/3407, E45/4205:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licensee’s attention is drawn to the provisions of the:
· Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas (GWA 21) the following endorsement applies:
8.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The draft endorsements to be imposed on E45/4115, E45/4122, E45/4114, E45/4151, E45/4205 and E45/4234 are the same as outlined in [25] above, save for the following differences:
E45/4115
·Endorsement 8 is removed, endorsements 4 to 8 have altered numbering due to the addition of a new endorsement 3 (as outlined below), and there is also an additional endorsement 9 as follows:
In respect to Proclaimed Ground Water Areas the following endorsement applies:
3.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater is issued by the DoW.
9.The grant of this licence does not include the land the subject of prior Exploration Licence 45/2266 and 45/2267. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
E45/4122
·Endorsement 8 is removed, new endorsement 3 as noted above for E45/1115 is added, and the numbering of the remainder of the endorsements is altered accordingly.
E45/4114
·New endorsement 3 is added as follows, and the numbering of the remainder of the endorsements is altered accordingly:
3.The licensee’s attention is drawn to the existence of a licence for an Access Track to Lake Disappointment granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as FNA 10250 in TENGRAPH.
E45/4151
·Endorsement 7 is removed, new endorsement 3 is added as follows, and the numbering of endorsements 4-6 is altered accordingly:
3.The grant of this licence does not include the land the subject of prior Exploration Licence 45/1839. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
E45/4205
·Endorsement 7 is removed, new endorsements 3 and 4 are added as follows, and the numbering of endorsements 5 to 9 are altered accordingly:
3.The grant of these licences does not include the land the subject of prior Exploration Licences 45/1175 and 45/1841. If the prior licences expires [sic], are surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
4.The Licensee’s attention is drawn to the existence of a licence for Access track to Lake Disappointment granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as FNA 10250 in TENGRAPH.
E45/4234
·Endorsement 3 is added as follows, and the numbering for the remainder of the endorsements altered accordingly:
3.The grant of the licence does not include the land the subject of prior Exploration Licence 45/1839 and 45/1840 (if granted). If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
The Government party notes that the grantee party ‘has indicated its willingness to enter into agreements’ and has signed copies of the Regional Standard Heritage Agreement (‘RSHA’) and sent them to the native title party representatives (SSO Contentions at 19). I do note the Government party has not stated which RSHA has been signed, however, attached to the grantee party contentions is the Yamatji Marlpa Aboriginal Corporation Agreement. This agreement relates to the Geraldton and Pilbara area, whereas the native title party for this matter is in the Central Desert area.
Native title party submissions
The NTP Contentions consist of a statement signed by four senior Martu men – Brian Samson, Teddy Biljabu, Colin Peterson and Milton Chapman. They state that ‘[t]he WDLAC Board and other Martu Elders we have spoken to have told us that it is right that we write this letter, it is correct for Martu law and custom too’ (NTP Contentions at 4). I am satisfied that Mr Samson, Mr Biljabu, Mr Peterson and Mr Chapman have authority to speak on behalf of the native title party in these proceedings.
The NTP Contentions state that ‘[i]t would be dangerous for the grantee party to go into areas that they are not allowed to. It would be dangerous for the gardias (white people) but also dangerous for us Martu’ (NTP Contentions at 13).
‘We know the Government talks about this regional standard heritage agreement. We know the Government says the company can sign this agreement and it will be ok for them to do their exploration on Martu country’ (NTP Contentions at 16). They go on to explain that the native title party rejects the RSHA in general and also specifically in these proceedings:
a.‘The WDLAC Board has discussed this type of agreement a number of time [sic]. We do not believe that this agreement properly protects Martu country and our law and culture’ (NTP Contentions at 17);
b.‘Martu have exclusive native title rights. This includes the right to control access to Martu country. This agreement does not support this for Martu’ (NTP Contentions at 19);
c.‘The regional agreement the Government talks about only supports sites that the aboriginal heritage Act (heritage act) acknowledge. Martu have sites, such as rivers and ranges that are not protected by this Act. They are sacred and special to our law and culture’ (NTP Contentions at 21);
d.‘Martu have areas that are no-go areas. This agreement would allow the company to do a heritage survey only for what the Government calls ‘ground disturbing’ works, not some works called ‘low impact’ works. This could [sic] very dangerous like we said before. Some areas are too dangerous to go to with no Martu Elders present’ (NTP Contentions at 22);
e.‘Martu have exclusive native title rights. This regional heritage agreement does not compensate us for impacts and effects that the company will do on our country’ (NTP Contentions at 23)
The native title party does not refer to a particular RSHA. The native title party instead proposes the grantee party sign the Martu Heritage Agreement (see also [27] of this decision).
The NTP Contentions state ‘[w]e were angry when our staff showed us the newspaper and television stories about the problems and cave in accident [sic] the company had at Nifty. We knew there would be problems with this country because they have not looked after it properly and not asked Martu about this country’ (NTP Contentions at 28). They assert that ‘[w]e are concerned that the company will not look after this country where these tenements are, like they have not looked after the country where Nifty Mine is on Martu country’ (NTP Contentions at 27). The native title party also asserts that the grantee party has not provided any detailed information regarding its proposed exploration activities (NTP Contentions at 31).
The NTP Contentions state that the grantee party’s exploration ‘could cause a major disturbance to the waterways and hunting areas within the tenement areas’, adding that ‘[i]t is important for our stories and culture that the water, bush tucker and animals remains good’ (NTP Contentions at 38).
In relation to sites in the proposed licence areas, the NTP Contentions include the following statements:
a.‘Songlines pass through these areas that we have direct responsibility for’ (NTP Contentions at 32);
b.‘The company needs to sign the Martu heritage agreement and agree to have a survey done before they go out to these tenement areas, as only Martu people know where the special places are’ (NTP Contentions at 34);
c.‘We are angry the company has made an application for an exploration licence (E45/3407) within Karlamilyi National Park. We know Martu do not have Native Title granted over Karlamilyi only because it is National Park, but it is a very special place for Martu’ (NTP Contentions at 36);
d.‘Their exploration may damage special places or disturb burial sites of Martu people’ (NTP Contentions at 39);
e.‘The tenements are located where there are lots of special sites for Martu, some have been recorded with anthropologists and the Department of Aboriginal Affairs register of sites’ (NTP Contentions at 42). This includes all the sites outlined above at [20];
f.‘There are a number of sites not on the government register that are within, and close to the tenement that this company wants to explore. Even if they are not within the tenements they are so close that any work without Martu permission will affect these sites’. Some of these places include Mt Isdell Quarry, Lamil Hills South, Throssel Range, Duck Pool (Wulpulpa), Broadhurst Range, Coolbro Creek, Nyiru Rockhole, Levets Paintings, Paterson Range Painting and Ivan’s Cave (NTP Contentions at 43). (In relation to these sites, I note there are three ‘other heritage places’ very close together named Mt Isdell Quarry (ID25381-25383), and Coolbro Creek 2 (ID6641) which is also an ‘other heritage place’, and registered site Coolbro Creek 1 (ID6640), which are all on the proposed licence E45/4205);
g.‘These sites are connected with a sacred Martu story, the Walawalang story. This is a kupin-kupin (zig-zag) crossing over large areas of Martu country. This story of the two men who travelled in the Jukurrpa. These men followed animals and named different places and areas. Each of these places has its own song and ceremony which are part of the Walawalang story’ (NTP Contentions at 44);
h.‘We do not want to describe this story, it is private and for Martu. We do not want to show on a map where all these places are. Martu need to be able to keep some of its culture for Martu (NTP Contentions at 46);
i.‘PANYALPA (Panyal) is the Martu name for this site which is located on south-western shore of Lake Auld (applications E45/3406 and E45/3405) and is associated with the mythology of the Man and the Dog. At PANYALPA the Moon camped with the Dog. The two men fought and the Moon was killed. The crescent moon in the sky indicated the death bite in the Moon’s back’ (NTP Contentions at 48). (In relation to this statement, I note the two tenements referred to by the native title party are not part of this inquiry, and I take the references to be a typographical error. The registered site Panyalpa (ID10493) does overlap E45/3761, and the 'other heritage site' of Lake Auld (ID17799) overlaps the south east corner of the same proposed licence);
j.‘MURRPU is the Martu name for this site which is associated with the journey of the mythological Two Snakes. The snakes passed through MURRPU on the west side of Lake Auld (applications E45/3406 and E45/3405). This site is sung in the Walawalang Song cycle’ (NTP Contentions at 49). (Again, I note these two tenements do not form part of this inquiry. In addition, there appears to be no registered or other heritage site recorded with this name, in relation to the licences which are subject to this inquiry);
k.‘TARLPA is the Martu name for this site and is associated with the Two Men Journey. Mr XXXX Wargarda [name obscured in original] was born here, this part of the song goes through the eastern side of Karlamilyi (Rudall River National Park)’ (NTP Contentions at 50). (I note the eastern border of the National Park runs at some 70 kilometres or so, and travels through the majority of proposed licence E45/3407 - it is not clear where the Tarlpa site is actually located);
l.‘NGATU is an important part of the Walawalang song, this part passes through the eastern part of the applications E45/4151, E45/4234 and E45/4205’ (NTP Contentions at 51);
m.‘Application E45/4023 is through the important place Lake Waukarlycarly. This is a Wati Kujarra. Old people travelled and camped through here. This is near Lamil Hills, big part of the song. This runs through the middle of applications E45/4114 and E45/4115’ (NTP Contentions at 52);
n.‘We don’t want to know about all these section 18 forms, heritage and government laws. Our places and sites have been destroyed an (sic) disturbed by these things before and the government has not prosecuted mining companies in the past for these’ (NTP Contentions at 53)
The NTP Contentions state that ‘[w]ithout meeting with Martu and an agreement with Martu we do not want these tenements granted’ (NTP Contentions at 55). They contend that they ‘have tried for a long time to talk to this company’, but state that their experience ‘is they do not want to talk to Martu. We have tried to have meetings with them on Martu country and in Perth. They don’t want to talk to us’ (NTP Contentions at 8).
Grantee party submissions
The grantee party contends that the expedited procedure should apply to the grant of the proposed licences.
The GP Contentions state that the grantee party is cognisant of its obligations under the AHA ‘and, in particular, its obligation not to disturb aboriginal sites or objects’ (GP Contentions at 8). The grantee party notes it has several methods of ensuring its observance of its obligations under the AHA, and states that ‘prior to undertaking significant ground disturbing activity’, it intends to: search the DAA Register; keep the native title party ‘properly informed of its activities, and where possible, hold meetings with the Martu to discuss Birla Nifty’s activities and any specific concerns for Martu’; provide for heritage surveys to be carried out ‘prior to carrying out work on the [proposed licences] that might affect aboriginal sites or objects’; and facilitate and fund surveys to identify aboriginal sites and objects (GP Contentions at 9).
The grantee party states it intends to undertake exploration of the proposed licences as allowed under the Mining Act. It states this includes both on-site and office-based activities, with site activities expected to be of a very low impact nature (for example, reconnaissance, mapping and sampling). The grantee party indicates that it will advise the native title party ‘of all on ground activities’ (GP Contentions at 12). The grantee party states, depending on the results of the above work, more exploration activities might be carried out but such activities ‘are limited by the Mining Act and are exploratory, not mining activities, are low impact and are short term requiring progressive and prompt rehabilitation to be undertaken’ (GP Contentions at 13).
The grantee party states it has executed ‘the RSHA’ and sent it to the native title party’s representative body (GP Contentions at 14). The grantee party notes that negotiations with the native title party over an alternative heritage agreement ‘have been progressing during 2014’, and states it is the grantee party’s intention to seek to agree an overall Indigenous Land Use Agreement (ILUA) that will cover not just the proposed licences, but all of the grantee party’s tenements in the Martu area. It notes that in addition to s 150 conferences convened by the Tribunal, the grantee party ‘has met with the WDLAC representatives (including, on several occasions, the senior Martu men [Mr Samson, Mr Biljabu, Mr Peterson and Mr Chapman] on over 25 occasions since June 2009 including on-site Martu board meetings in 2009 and a full WDLAC board meeting in June 2013 in Perth for the initial ILUA negotiation introduction, attended by 11 Martu negotiation team members’ (GP Contentions at 23).
The grantee party states that, based on the native title party’s contentions, ‘…it appears that the meetings [with WDLAC] may not have been fully communicated to the Martu. That lack of communication appears, in turn, to have caused a deal of upset to the Martu and a belief that Birla Nifty has been disregarding the rights of the Martu’ (GP Contentions at 25).
Government party submissions
The Government party contends the grants of the proposed licences are acts attracting the expedited procedure (SSO Contentions at 5).
The Government party notes the grantee party has indicated its willingness to enter into agreements and has signed copies of the RSHA (SSO Contentions at 19). It notes the native title party expresses concern over the RSHA agreements, however, ‘many of these concerns appear to arise from a misunderstanding of the RSHA agreements’ (SSO Contentions at 21). It notes, for example, that the RSHA requires consultation and communication with the native title party, contrary to the native title party’s concerns (SSO Contentions at 22). The Government party argues the fact that the grantee party has indicated a willingness to enter into agreements for the proposed licences indicates that it is open to cooperating with the native title party and respect the land in question (SSO Contentions at 22).
In relation to the native title party’s concerns about the conduct of the grantee party at the ‘Nifty Mine’, the Government party notes that ‘that incident occurred during mining operations that were being conducted pursuant to a mining lease, not an exploration lease’ (SSO Contentions at 25). The Government party asserts that, to the extent members of the native title party have concerns, these are not sufficient to overcome the assumption that the grantee party will comply with the relevant regulatory regime. Rather, the evidence must demonstrate the particular grantee undertaking the particular act will not comply with a regulatory regime (SSO Contentions at 28).
The Government party outlines that the statements provided in the NTP Contentions are not evidence but assertions unsupported by any evidence, and should not be relied on by the Tribunal. Further, or in the alternative, the statements are too general to be given any, or any significant, weight, or otherwise relied upon by the Tribunal (SSO Contentions at 30). The Tribunal is not bound by the rules of evidence, and the signed statement provided by members of the native title party is accepted as evidence in this matter, and will be relied upon by the Tribunal. In relation to the general nature of any statements, that will be considered as part of the weighing up of all the evidence provided by parties in this matter.
The Government party notes that paragraph 25 of the NTP Contentions addresses s 237(a) of the NTA. However, the Government party argues that the asserted community and social activities of the native title party are not outlined anywhere in the NTP Contentions. Since there is no evidence that members of the native title party carry out community or social activities within the proposed licence areas, the Government party contends the Tribunal cannot find there will be direct interference with community or social activities of the native title party (SSO Contentions at 45-46).
The Government party notes paragraphs 20-22, 32-36 and 38-52 of the NTP Contentions are directed to s 237(b) of the NTA. The Government party acknowledges there are several registered Aboriginal sites and other heritage places within the area of the proposed licences, and notes the native title party also makes reference to sites not protected by the AHA but that the native title party nonetheless considers sacred (SSO Contentions at 56). The Government party, however, describes the NTP Contentions as ‘vague’ and lacking in detail in relation to these sites (SSO Contentions at 56), and argues the native title party does not particularise the importance of most sites it lists in the contentions (SSO Contentions at 57). It notes the native title party admits that a number of the sites, which are not specified, are not located with the proposed licences. The Government party states general evidence that there are or may be places on or near a tenement area, which can be said to fit a generic category such as a songline or a secret place, is not sufficient to establish that an area or site is of ‘particular significance’ (SSO Contentions at 58).
The Government party contends that, in the event there are any areas or sites of particular significance in the proposed licence areas, interference with those areas or sites is not likely for the following reasons (SSO Contentions at 61):
a.There is no evidence before the Tribunal as to the location of the sites referred to in the NTP Contentions, and as such no way of determining whether each of those sites extend into the proposed licence areas;
b.To the extent that some of the sites are sites of ‘particular significance’, the grantee party is now aware of the existence of those sites and of its legal obligation in respect of those sites;
c.If the native title party’s concerns about songlines and sites connected with the Walawalang story are grounded in a belief that any level of ground-disturbing activity will disturb these areas, ‘then it [the expedited procedure] would be disapplied to the grant of almost all exploration tenure … that outcome would be incongruent with Parliament’s intention in drafting s 237 of the NTA’;
d.Contentions about disturbance to songlines or sites connected to the Walawalang story reflect a general spiritual concern to which s 237(b) of the NTA does not apply;
e.The proposed licence areas have been subject to prior mineral exploration and possibly mining activity, and the Government party submits that the grantee party’s activities would be the same as, or no more significant than, the previous use of the area;
f.The AHA and its associated processes are likely to prevent interference with any area or site of ‘particular significance’ to the native title holders. In particular, any Aboriginal sites (as defined in s 5 AHA) within the proposed licence areas but not on the Register will be protected by s 17 AHA, and if the grantee party applied for consent under s 18 AHA to contravene s 17, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (which in this case is likely to include the native title party).
The Government party notes paragraphs 38-39 of the NTP Contentions are directed to s 237(c) of the NTA, however, asserts that the native title party has provided very little information and no evidence (SSO Contentions at 66). The Government party states the native title party appears to contend that major disturbance to land or waters includes the mere presence of unauthorised persons on land, however, the Government party asserts that s 237(c) of the Act is only enlivened when there is, in fact, a significant, direct physical disturbance of land or waters (SSO Contentions at 67-68). The Government party contends that the qualification ‘major’ is to be given its ordinary meaning and is to be objectively assessed (SSO Contentions at 69).
The Government party submits the grant of the proposed licences are not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to land or waters because (SSO Contentions at 70):
a.The exercise of rights conferred by the exploration licences will be regulated by the State’s regulatory regime with respect to mining, Aboriginal heritage and the environment;
b.Any authorised disturbance to land and waters caused by the grantee party may be mitigated by proposed conditions requiring rehabilitation of the land following completion of exploration;
c.The proposed licence areas have been subject to prior mineral exploration and possibly mining activity; and
d.It does not appear that the proposed licence areas have particular characteristics that would be likely to result in ‘major disturbance’ to land and waters, given the grantee party’s proposed activities.
Considering the Evidence
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licences 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 at [23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]).
The only reference to the native title party’s community and social activities is arguably its submission that ‘[t]he company’s exploration could cause major disturbance to the waterways and hunting areas within the tenement areas. It is important for our stories and culture that the water, bush tucker and animals remains good’ (NTP Contentions at 38). This may, indirectly, imply that the native title party engages in activities within the proposed licence areas that involve water, bush tucker and animals. However, the native title party provides no substantive contentions which detail any hunting activities or other relevant activities for the purposes of my consideration of s 237(a). I concur with the Government party that there is little in the NTP Contentions in relation to this criterion.
I take into consideration that the following appears on the Extract from the National Native Title Register for the native title party determination, which relates to community and social activities:
5. Subject to paragraphs 6, 7, 8 and 9:
(1) The nature and extent of the native title rights and interests held by the common law holders in the determination area are:
a.The right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including:
i.The right to live on the determination area;
ii.The right to make decisions about the use and enjoyment of the determination area;
iii.The right to hunt and gather, and take the waters for the purpose of satisfying their personal, domestic, social, cultural religious, spiritual, ceremonial, and communal needs;
iv.The right to control access to, and activities conducted by others on, the land and waters of the determination area;
...
b.The right to use the following traditionally accessed resources:
i.Ochre;
ii.Soils;
iii.Rocks and stones; and
iv.Flora and fauna
for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and
c.The right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather fish from the flowing and subterranean waters.
However, this information applies broadly to the whole determination area. Whilst the native title party has the right to exercise the rights and interests outlined above in accordance with its traditional laws and customs (subject to other provisions of the determination), there is an absence of specific information regarding the particular way in which these rights and interests are exercised in the proposed licences areas.
On the evidence before me, I find the grant of the proposed licences is not likely to directly interfere with the native title party’s community and social activities for the purposes of s 237(a) of the Act.
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 its traditions. As stated at [20] of this decision, the DAA Database shows there are no registered sites or ‘other heritage places’ recorded in proposed licences E45/4023, E45/4115, E45/4122, E45/4114, E45/4151 or E45/4234. This does not mean there are no sites or areas of particular significance to the native title party within those proposed licences or in the vicinity. The DAA register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.
As outlined at [20] of this decision, there are DAA registered sites within the other proposed licences (E45/3761, E45/3407, E45/4205), and in its contentions, the native title party refers to some other sites as being important to the native title party traditions (such as Lake Waukarlycarly, Lamil Hills, Ngatu, Murrpu and Tarlpa). However, the native title party contentions and evidence provide references to such sites, but little detail on their location, or importance. I appreciate that some sites are very sensitive to native title parties, however, rather than omit detail because of that sensitivity, mechanisms such as non-disclosure orders, or oral hearings, can be requested which may assist disclosure of relevant information.
Examples of the difficulty in applying the information and evidence provided is the short description of Panyalpa, which the native title party states is the Martu name for a site located on the south-western shore of Lake Auld but the native title party refer to tenements E45/3406 and E45/3405. The native title party states that this site is associated with the mythology of the Moon and the Dog. I do note the south western portion of Lake Auld overlaps the south eastern portion of E45/3761, however, without further information it is difficult to conclude Panyalpa is a site of particular significance to the native title party.
The native title party also notes that Murrpu is a site which is associated with the journey of the mythological Two Snakes on the west side of Lake Auld, and refer to tenements E45/3406 and E45/3405. However, I note that neither E45/3406 nor E45/3405 are proposed licences in this determination, and there is little further information in relation to Murrpu to lead me to conclude it would be a site of particular significance.
The native title party also states there are a number of sites not on the register that are within, or close to, the proposed licence areas. The native title party alleges that even if these sites are not within the proposed licence areas, they are so close that any work without Martu permission will affect these sites. It then states that ‘some of these places’ include the list of sites outlined above at [34(f)] – that is, Mt Isdell Quarry, Lamil Hills, Throssel Range, Duck Pool (Wulpulpa), Broadhurst Range, Coolbro Creek, Nyiru Rockhole, Levets Paintings, Paterson Range Painting and Ivan’s Cave.
Due to the way this part of the native title party’s evidence is expressed, there is no way of determining which of these sites are within the proposed licence areas, apart from those which do appear on Tribunal mapping such as Coolbro Creek, and those which do appear to be recorded with DAA such as Coolbro Creek and Mt Isdell Quarry. Those sites are within E45/4205. The native title party states that ‘these sites’ (by which I presume it means the sites outlined above at [59] and [34(f)]) are connected with a sacred Martu story, the Walawalang story. The native title party do not provide details of the story, stating that ‘it is private for Martu’. As noted earlier in this decision, non-disclosure orders can be made where evidence is of a culturally sensitive nature, but such were not requested in this matter. I do not believe there is sufficient evidence to conclude these sites are sites of particular significance.
Although the Tribunal has previously indicated that the inquiry under s 237 is not restricted to the activities of a grantee party within the area of the proposed future act, it has noted that off-site activities may only be taken into account if there is a clear nexus between those activities and the issues to be considered (see Silver v Northern Territory at [35]). In the present matter, the native title party has not identified a clear nexus between activities likely to be undertaken by the grantee party and any potential interference with the sites it has described which it says exist within or close to the proposed licences.
The native title party also refer to four other non-registered sites. One of these is Tarlpa, which it asserts is associated with the Two Men Journey and is part of a song that goes through the eastern part of Karlamilyi (Rudall River National Park). Based on Tribunal mapping, this could be near the proposed licence E45/3407, but a clear location is not specified. It also refers to Ngatu, which is part of the Walawalang song, and passes through the eastern part of E45/4151, E45/4234 and E45/4205. It also refers to Lake Waukarlycarly, which traverses E45/4023, stating that this is a ‘Wati Kujarra’ where old people travelled and camped, and states that Lamil Hills run through E45/4114 and E45/4115, and are a big part of the song (by which I presume refers to the Walawalang song).
In relation to Ngatu and its connection with the Walawalang song traversing proposed licences E45/4151, E45/4234 and E45/4205, the native title party states that this song crosses over large areas of Martu country, and that the Walawalang is a story of two men who travelled in the jukurrpa; these men followed animals and named different places, and each of these places has its own song and ceremony. Overall, I accept this is an important part of the native title party traditions, however, I do not find that the evidence clearly establishes there are sites of particular significance to the native title party in these areas for the purposes of s 237(b).
The evidence provided in relation to Lake Waukarlycarly traversing E45/4023, where it is said old people travelled and camped, is insufficient to enable a conclusion that there are particular sites of significance in this proposed licence for the purposes of s 237(b).
I also note the native title party’s concern that the grantee party’s proposed activities may disturb burial sites generally. However, no further information is provided to indicate whether or not these burial sites are in the proposed licence areas or just in the vicinity of them.
I further take into consideration the native title party’s determined rights and interests from the Extract of the National Native Title Register, which include:
5. Subject to paragraphs 6, 7, 8 and 9:
(1) The nature and extent of the native title rights and interests held by the common law holders in the determination area are:
( ... )
(v) the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs;
The native title party has provided some information about sites which are important to them in relation to these nine proposed licences. However, much of the evidence relates to broad concepts such as protecting the sites, and concerns about the activities of the grantee party. Limited specific evidence has been provided in relation to the ‘particular significance’ of the sites. I contrast the evidence provided in this determination with matters such as Tullock v Allarrow (at [39]), in which the area in question ‘compris[ed] a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to Martu religion’. In that matter, a number of affidavits were provided with detailed evidence regarding the particular significance of sites to the native title party, and non disclosure orders protected the release of such information.
For the purposes of the analysis to be undertaken of s 237(b) of the Act, the native title party must first establish there are sites of particular significance to the native title party (see [13]-[14] and [55] above). As President Webb QC noted in Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [130], emphasis in original), s 237(b) ‘requires the Tribunal to distinguish between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance’, and that ‘in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its locations and the grounds for its particular significance’. Notwithstanding the exclusive determined native title rights, while there is no doubt there are sites of importance to the native title party on or near these propose licences, the particular significance of any sites has not been established, and so I do not address the issue of interference. The grantee party is now on notice regarding the sites outlined in the native title party evidence.
Overall, I do not find there are sites of particular significance on the proposed licences, and so do not find it likely that sites of particular significance will be interfered with by activities of the grantee party, in accordance with the traditions of the native title holders, as per s 237(b) of the Act.
Major disturbance to land and waters - s 237(c)
No party has made specific contentions regarding section 237(c) of the Act. Nonetheless, the Tribunal is required under s 237(c) to make an evaluative judgement 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 v Oriole Resources at [41]-[57]).
There does not appear to be clear evidence that the proposed licences have any particular characteristics that would be likely to result in major disturbance to land and waters. I am satisfied, based on the available evidence, the exercise of the grantee party’s rights under the proposed licences is unlikely to involve major disturbance to the land or waters concerned, as required by s 237(c) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licences E45/4023, E45/3761, E45/3407, E45/4115, E45/4122, E45/4114, E45/4151, E45/4205 and E45/4234 to Birla Nifty Pty Ltd are acts attracting the expedited procedure.
Helen Shurven
Member
20 March 2015
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