Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Ripplesea Pty Ltd and Precious Metals Engineering (WA) Pty Ltd
[2008] NNTTA 11
•25 January 2008
NATIONAL NATIVE TITLE TRIBUNAL
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Ripplesea Pty Ltd and Precious Metals Engineering (WA) Pty Ltd, [2008] NNTTA 11 (25 January 2008)
Application No: WO07/202
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo (WC98/40) (native title party)
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The State of Western Australia (Government party)
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Ripplesea Pty Ltd and Precious Metals Engineering (WA) Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 25 January 2008
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Aboriginal Heritage Act 1972 (WA), s 62
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/ Western Australia/ Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd, NNTT WO06/732, WO07/204, WO07/205; [2008] NNTTA 3 (14 January 2008), Hon C J Sumner
Solicitors for the
native title party: Kitto & Kitto, Barristers and Solicitors
Representatives of the Ms Cheryl Henry, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the
grantee party: Mr Alf Valentine, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On 31 January 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1097 (‘the proposed licence’) to Ripplesea Pty Ltd and Precious Metals Engineering (WA) Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 223.21 square kilometres and is located 42 kilometres northerly of Pannawonica in the Shire of Ashburton/Roebourne. 100 per cent of the proposed licence is overlapped by the Yaburara and Mardudhunera registered claim (WC96/89, registered from 1 August 1996), 62.65 per cent by the Wong-goo-tt-oo registered claim (WC98/40, registered from 10 July 1998) and 51.66 per cent by the Kuruma Marthudunera combined registered claim (WC99/12, registered from 24 June 1999).
On 26 March 2007, an expedited procedure objection application was lodged with the Tribunal by Wilfred Hicks and Others on behalf of Wong-goo-tt-oo People (WC98/40) (‘the native title party’). On 22 May 2007 an expedited procedure objection application was lodged with the Tribunal by Mark Lockyer and Others on behalf of the Kuruma Marthudunera (WC99/12) (designated WO07/349). No objections were lodged on behalf of the Yaburara and Mardudhunera.
On 16 November 2007, objection application WO07/349 made by Kuruma Marthudunera was withdrawn as parties had reached an agreement.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections (i.e. after 31 May 2007), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the adjourned preliminary conference on 22 May 2007, the grantee party advised that the terms of the native title party’s heritage protection agreement were not acceptable and that a Regional Standard Heritage Agreement (‘RSHA’) had been executed in favour of the Yaburara and Mardudhunera claimants. The grantee party, supported by the Government party, requested that the matter proceed to inquiry with directions to be amended to require Government, native title party and grantee party compliance at three, four and five weeks following the closing date with a Listing Hearing to be conducted on 12 July 2007. All parties agreed to the request.
In accordance with the amended directions, the Government party lodged its submissions by 21 June 2007 and the native title party by 27 June 2007. The grantee party indicated it would rely on the Government party's submissions.
At a Listing Hearing on 12 July 2007 parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA). The Tribunal deferred consideration of this objection until it was known whether agreement could be reached in relation to WO07/349 or whether that matter would also proceed to an 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 Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.
The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision has now been appealed to the Full Federal Court and judgment was reserved on 16 November 2007.
Evidence in relation to the proposed act
Government party documentation establishes the following underlying land tenure on the proposed licence:
Two Vacant Crown Land parcels (total of 66.4 per cent overlap)
Yalleen Pastoral Lease 3114/1013 (33.6 per cent overlap)
Historical Lease 394/404 (33.4 per cent overlap)
Historical Lease 394/861 (0.1 per cent overlap)
The documentation also notes there has been no recent exploration activity over the area of the proposed licence. There are no current tenements and two ‘dead’ temporary reserves (one granted in 1960, expired in 1961 and overlapping at 37.3 per cent and one granted in 1966, forfeited in 1977 and overlapping at 0.4 per cent). Seven ‘pending’ exploration licences which each overlap at no more that 7.1 per cent indicate some interest in areas adjacent to the proposed licence.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed relate to providing notification to the pastoral or grazing lessee of the grant of the licences and of certain exploration activities (conditions 5–6).
The following relevant Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder, the 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 will place the following condition on the grant of the licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Yaburara Mardudhunera People, the applicants in Federal Court application no WAD 127 of 1997 (WC96/89), such request being sent by pre-paid post to reach the Licensee’s address Austwide Mining Title Management Pty Ltd PO Box 1434 Wangara WA 6947 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yaburara Mardudhunera People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Native Title Service.’
The Government party documentation notes there are no Aboriginal communities in the vicinity of the subject area.
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents two registered sites partially or entirely within the area of the proposed licence:
717 - Booyeema Hill, mythological, permanent register, closed access, no gender restriction
11808 - Galamuna Dalu, natural feature, permanent register, open access, no gender restriction
In support of its contentions, the native title party’s submission includes the affidavit of Wilfred Hicks dated 3 February 2007 made in the following terms:
‘I Wilfred Hicks of Unit 4, 29 Sholl Street, Roebourne, Western Australia, Pensioner make oath and say as follows:
1.I am the objector in this matter and a named claimant in the Wong-Goo-Tt-Oo Native Title Group. I instructed my solicitors to lodge this objection on behalf of the Wong-Goo-Tt-Oo Group as a whole and am authorised by the Wong Goo-Tt-Oo Group to swear this affidavit on their behalf.
2.I make this affidavit in support of the Statement of Contentions that have been filed in relation to the application for an exploration license over tenement E47/1097 by Precious Metals Engineering (WA) Pty Ltd and Ripplesea Pty Ltd.
3.The ancestors of the Wong-Goo-Tt-Oo Group were the traditional owners of the Karratha to Mardie Stations area and held the Dreaming stories and songlines for that area.
4.One story relates to the creation of the Maitland and Fortescue Rivers, the first humans on the Pilbara coast and the manufacture of the first boomerang, as are other sacred and significant aboriginal sites.
5.Rock art in or near the tenement relates to these stories, as also does an ancient rock quarry site there.
6.Because the Wong-Goo-Tt-Oo Group had had a long association with this area it has been our custom to visit areas around the tenements and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.
7.If the proposed tenement is granted I am concerned that exploration activities will lead to the evacuation of the area by wild game and vegetable foods and fruits will inevitably be destroyed, which will result in us not being able to carry out our traditional activities.
8.Our links with our traditional lands are both spiritual and physical. The spiritual link is evidenced by physical activities on the land. If those activities are curtailed or prevented, then our spiritual link is broken. Once terminated, our group’s social cohesion, based as it is upon the spiritual dimension, may disintegrate.
9.I am aware of significant sites located within the proposed tenement.
10.I have not yet had the opportunity to conduct a detailed inspection of this area and it has not been possible to obtain the assistance of any experts in identifying sites in this area.
11.I am extremely worried about what may happen to our land, and any sites that are on may be destroyed if the grantee party does not consult us before commencing work in this area.
12.Through our solicitors, the Wong-Goo-Tt-Oo Group have presented a proposed heritage agreement to the Grantee Party which would provide for a mechanism to protect areas or sites of particular significance to us. This agreement would also define for all the parties what we consider is a major disturbance to the land. The Grantee Party has not entered into this agreement with us.’
The evidence of Mr Hicks is uncontested and I accept it. Mr Hicks is one of the persons comprising the applicant for native title and I accept that he has authority to speak on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([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 (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. The evidence provided is in a very similar form to that provided by Mr Hicks in the following objection applications, although the place names and stories differ in minor respects:
Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/ Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner (‘Wilfred Hicks/Geotech’) (E08/1350 located some 30 kilometres to the north-west).
Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/ Western Australia/ Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner (‘Wilfred Hicks/Red River’) (E47/1309 located some 30 kilometres to the north); and
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd, NNTT WO06/732, WO07/204, WO07/205; [2008] NNTTA 3 (14 January 2008), Hon C J Sumner (‘Wilfred Hicks/Mineralogy’) (E08/1414 located some 35-40 kilometres to the north-west).
In these matters the Tribunal found that the expedited procedure was attracted. For similar reasons I have come to the same conclusion in the present matter. I adopt the relevant findings from my determination Wilfred Hicks/Geotech at [16]. At paragraph 6 of his affidavit, Mr Hicks deposes that “it has been our custom to visit areas around the tenements and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.” Except for the substitution of the words ‘the tenements’ for ‘Mardie and Balmoral Station’ this is exactly the same evidence as provided in Wilfred Hicks/Geotech. In both cases the stated activity is said to have occurred in the past. The evidence of Mr Hicks of contemporary activity lacks specificity as no information is given as to the frequency or numbers of persons involved in these activities or any specific location of those activities.
The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary and that the grant does not confer exclusive possession rights of access on the grantee party. While the total area of the licence will be significant (223.21 square kilometres) intensive ground disturbing exploration will only occur at any one time over a small area within the proposed licence. It is not correct for the native title party to say (Contentions – para 3(ii)) that large areas of traditional land will be closed off while exploration is carried out. Further, the area of the Wong-goo-tt-oo claim is some 7,522 square kilometres making it less likely that exploration on the licence area will impact directly and in a substantial way on any community or social activities which I can infer are likely to be carried out over a broader area than that of the proposed licence.
With respect to the native title party’s contentions that the spirituality of the land and social cohesion of the community will be diminished by exploration (Contentions – paras 3(iii) and (v)), I adopt my findings in Wilfred Hicks/Geotech at [19]. There is scant evidence of the current community or social activities of the native title party whether or not related to the spirituality of the land or that the social cohesion of the community will be diminished.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case. My finding is that they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it. I come to this conclusion even though there is little evidence of prior exploration or pastoral activities which may already have interfered with the relevant activities. The reality is that for whatever reason there is very limited evidence of the carrying on of community or social activities by the native title party on the proposed licence area.
Sites of particular significance (s 237(b))
On the predictive assessment approach the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are two sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
Mr Hicks’ evidence is virtually the same as in the other Wong-goo-tt-oo objections, is very brief and not very specific about the nature of the sites or their location. Despite this, the evidence is uncontested and I accept that it establishes that:
there is a Dreaming story relating to the creation of the Maitland and Fortescue Rivers, the first humans on the Pilbara coast and the manufacture of the boomerang and other sacred and significant aboriginal sites (para 4);
there is rock art and a rock quarry in or near the area of the proposed licence (para 5); and
significant sites located within the area (para 9).
The Maitland River is some 20 kilometres from the nearest part of the tenement area and is unlikely to be interfered with by exploration activities. The same applies to the story relating to the Pilbara coast and manufacture of the boomerang, this proposed licence being some 45 kilometres inland from the coast. In the absence of further information from Mr Hicks I do not regard these stories or sites associated with them as running through the proposed licence area.
The Fortescue River runs through the southern part of the proposed licence area. In Wilfred Hicks/Mineralogy (at [53]) the Tribunal found that the Fortescue River (or at least parts of it) was a site of particular significance to the native title party in accordance with their traditions. I adopt my findings from that matter and I am satisfied that the same finding is justified in the present matter.
There is no evidence from Mr Hicks linking the sites on the Register with the tradition of the native title party. Nevertheless, based on the mythological nature of Booyeema Hill and the fact that access to it is closed I infer that it is a s 237(b) site. There is nothing in the nature of the Galamuna Dalu site to enable me to draw the necessary inference about its significance.
With respect to the rock and rock quarry and other significant sites referred to by Mr Hicks there is no other evidence to corroborate their existence, location or nature. In these circumstances and taking into consideration that exactly the same evidence was given in other Wong-goo-tt-oo matters, I can only be satisfied that there may be sites of this kind on the proposed licence area. The evidence does not support a more positive finding.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with the sites of particular significance found to exist. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).
On 12 January 2007 a RSHA was signed and forwarded to the Yaburara and Mardudhunera claimants. The RSHA process adopted by the Government party in various regions of WA after discussions with the relevant representative bodies and industry has been detailed in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15]-[35] (‘Champion’) the relevant parts of which I adopt for the purpose of this determination. The condition of grant proposed by the Government party (paragraph [17] above) confirms that the grantee party must sign an agreement with the Yaburara and Mardudhunera if for some reason it transpires that this has not already happened. The grantee party has, prior to the giving of the s 29 notice, signed an agreement in favour of the Yaburara and Mardudhunera whose claim covers 100 per cent of the licence area and no objection has been lodged by that claimant group suggesting that the agreement was satisfactory to them. The grantee party has also reached agreement with the Kuruma Marthudunera claimants resulting in the withdrawal of objection WO07/349 in respect of the proposed licence. These actions are an indication that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act. It also means it is likely that Aboriginal heritage surveys will be carried out over the entirety of the proposed licence to ensure that sites of particular significance to the Yaburara Mardudhunera and Kuruma Marthudunera will be protected. I consider it likely that these sites will also be of particular significance to the native title party but there is the possibility (even if unlikely) that there may be sites of particular significance to the native title party which are not of particular significance to the Yaburara Mardudhunera or the Kuruma Marthudunera.
In Champion (at [33]) I found that the Government party’s proposed condition added some weight to the regulatory regime in that the objecting native title party was afforded the opportunity to insist on a heritage survey, albeit pursuant to the RSHA. In the present matter the condition is not offered in favour of the native title party because Government policy is that one RSHA with the major overlapping claimant is sufficient to ensure protection of sites. Despite this, the grantee party has now, through these proceedings, been made aware of sites of particular significance to the Wong-goo-tt-oo and will need to consult with them to ensure that these are properly identified or avoided. It may be that this will occur as a result of the survey which will be carried out with the other native title parties and it will be important for the grantee party to ensure that this is the case. If they do not do so the defence to a charge of interfering with a site may not be available to it under s 62 of the Aboriginal Heritage Act. I am satisfied that the Government party’s regulatory regime with respect to Aboriginal sites combined with the grantee party’s intention regarding their protection, and the site surveys that will be carried out, ensures that there is no real risk of interference with the sites of particular significance to the Wong-goo-tt-oo native title party which have been identified by the evidence.
Major disturbance to land and waters (s 237(c))
I adopt para [30] of Wilfred Hicks/Geotech as the law to be applied in determining whether there is likely to be major disturbance to land.
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Champion at [77]).
In making a finding on this point I have had regard to the fact that there are no Aboriginal communities in the vicinity; that the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4) and the endorsements specified in para [16]. I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E47/1097 to Ripplesea Pty Ltd and Precious Metals Engineering (WA) Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
25 January 2008
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