Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another - [2015] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another [2015] NNTTA 30 (12 August 2015)

Application Nos: WO2014/0425, WO2014/0495 and WO2014/0498

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Peggy Patrick and Others on behalf of Yurriyangem Taam (WC2010/013) (Yurriyangem Taam native title party)

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Connie Jugarie and Others on behalf of the Ngarrawanji People (WC1996/075) (Ngarrawanji native title party)

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Mervyn Street and Others on behalf of Yarrangi Riwi Yoowarni Gooniyandi (WC2012/010) (YRY Gooniyandi native title party)

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The State of Western Australia (Government party)

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Baibao Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  H Shurven, Member
Place:  Perth
Date:  12 August 2015

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 is attracted – expedited procedure applies

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32, 44H, 237
Mining Act 1978 (WA), s 66
Mining Regulations 1981 (WA), reg 20

Cases:Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
Cosmos on behalf of the Yaburara & Mardudhunera/Western Australia/Croydon Gold Pty Ltd [2013] NNTTA 86 (‘Cosmos v Croydon Gold’)
Little and others v Oriole Resources Pty Ltd [2005] FCAFC 243 (‘Little v Oriole Resources’)
Robinson v Fielding [2015] WASC 108 (‘Robinson v Fielding’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Walley v Western Australia (2002) 169 FLR 437 (‘Walley v Western Australia’)

Representatives of the Ms Angela Booth, Kimberley Land Council
native title parties: Ms Julia Smith, Kimberley Land Council

Representatives of the Mr Jeff O'Halloran and Mr John Carroll, State Solicitor’s Office

Government party: Mr Matthew Smith and Ms Bethany Conway, Department of Mines and Petroleum

Representative of the Mr Adam McKay, Alliance Mining Titles

Grantee party: Mr Yorke Zhao, Stellar Mining Management Pty Ltd

REASONS FOR DETERMINATION

This decision considers whether the State Government of Western Australia can grant exploration licence E80/4851 to Baibao Resources Pty Ltd, without the normal requirement for negotiations with the Yurriyangem Taam, Ngarrawanji and Yarrangi Riwi Yoowarni Gooniyandi native title claim application groups. The State considers the grant can be made without such negotiations. They deem the activities permitted under the licence are not likely to interfere with the groups’ community or social activities, sites of particular significance, or involve major disturbance to the land and waters. So, in their notice of the grant, they included a clause asserting the expedited procedure should apply (see s 29 and s 237 of the Native Title Act 1993 (Cth) - all references to legislation in this decision are to that Act, unless otherwise stated).
The Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi native title parties have each lodged claim applications with the Federal Court of Australia. Their claims have been accepted for registration by the Native Title Registrar or Delegate. Their place on the Register of Native Title Claims at this time gives each of them certain procedural rights including the right to be a native title party and lodge an objection against the State’s assertion that the expedited procedure applies to the grant of the licence. As native title parties, Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi have each exercised their right to object and have lodged objections with the National Native Title Tribunal.[1] To answer the question of whether the grant can be made in such an expedited way, I was appointed by the President of the Tribunal, Raelene Webb QC, to be the Member conducting the inquiry. I must determine whether or not the expedited procedure applies (s 32(4)).
[1] Designated Tribunal Objection Application Numbers WO2014/0425 lodged by Yurriyangem Taam, WO2014/0495 lodged by Ngarrawanji and WO2014/498 lodged by YRY Gooniyandi.
A decision that the expedited procedure applies to the grant means the State can grant the licence and Baibao can proceed to explore without negotiating with Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi (s 32(4)). A decision that the expedited procedure does not apply means Baibao and the State must negotiate in good faith with each of the native title parties, with a view to reaching an agreement about the grant (s 32(5)). Those negotiations may be done with or without mediation assistance from the Tribunal (s 31(3)).
The licence is located some 73 kilometres west of Halls Creek in the shire of Halls Creek and is approximately 533 square kilometres in size. Yurriyangem Taam’s claim application area overlaps the majority of the central portion of the licence, while the Ngarrawanji and YRY Gooniyandi areas overlap land along the east and west borders of the licence respectively.
I provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used in the inquiry. No party objected to its use. The State and each of the native title parties provided contentions. Baibao did not lodge any contentions or evidence. In addition:
·Yurriyangem Taam provided the affidavit of Matt Dawson;
·Ngarrawanji provided the affidavits of Mabel Julie Peters and Rusty Peters; and
·YRY Gooniyandi provided the affidavit of Mervyn Street.
According to Mr Dawson, Ms Peters and Mr Peters, the Yurriyangem Taam and Ngarrawanji portions of the licence are in Kija country and they have rights to speak for the area under Kija (Gija) law. Mr Street states he has rights under Gooniyandi law to speak for the YRY Gooniyandi portion of the licence. I accept these deponents have authority to speak for those areas on behalf of the native title parties.
Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi all argue it is highly likely the grant of the licence will directly interfere with the carrying on of Kija or Gooniyandi community or social activities. They also argue the grant of the licence is likely to interfere with a number of sites of particular significance. The affidavits also raise concerns about disturbance to water and land. I will address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant, as required of me by s 237:
a)Will the grant interfere directly with the carrying on of Kija or Gooniyandi community or social activities?
i.What are the social or community activities and where do they take place?
ii.Are there any other interests that have already interfered with these activities?
iii.What are Baibao’s proposed activities?
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
b)Will the grant interfere with areas or sites of particular significance to the Kija or Gooniyandi communities?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.What are Baibao’s proposed activities in relation to these areas or sites?
iv.Will the regulatory regime be sufficient to protect these areas or sites?
c)Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters?
i.Is there any evidence that the land and waters have any special characteristics?
ii.Will the regulatory regime be sufficient to protect these land and waters?

Will the grant interfere directly with the carrying on of Kija or Gooniyandi community or social activities?

In considering this issue, I note the following principles (Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [15]-[16]):
·The inquiry into interference with community or social activities is contextual, and I may have regard to other factors that might constrain the community or social activities.
·I must determine whether Baibao’s activities are likely to be the proximate cause of interference.
·The level of interference with community or social activities must be substantial and not trivial.

i.What are the social or community activities and where do they take place?

According to Mr Dawson who talks ‘for Kija’, the Aboriginal communities of Kuirinyjarn, Goolgaradah, Ganinyi, and Girriyoowa (where he resides) are ‘in the vicinity of’ or ‘close to’ the licence (at 9-10). Tribunal mapping locates these communities along the Margaret River some 40 kilometres southwest of the licence. Mr Dawson says he ‘walked across that country with my family when I was younger’ and went to the licence ‘last dry season’ to ‘do mapping for the Yurriyangem Taam native title claim’ (at 14-15).
Ms Peters and her brother Mr Peters identify as ‘Gija’ and reside at Warmun Community in Turkey Creek. Their families use the Mount Amhurst road ‘to get to the tenement area of Gija country which is about 120km from Turkey Creek’ (at 9 and 7 respectively).
Ms Peters says her children ‘still go hunting there now but not when it rains as the roads are blocked’ and they ‘still go fishing in the little creeks, Spring Creek, Forman Creeks and along Giddon River within the tenement area. These are good fishing places’ (at 10-11). Mr Peters also says there are ‘very good fishing spots all along Giddon River and Foreman Creek inside the tenement area. My family goes fishing here still and also camping along the creeks and rivers’ (at 10). Ms Peters says her ‘family go camping on this area of country here too. There are lots of good spots for camping here along the creeks and rivers’ (at 14). She says there are ‘lots’ of Gandi or bush yams, Goobulu or bush oranges and Mowangi or bush potato and her ‘children still go collecting all of this bush tucker on the tenement area because there are lots over there’ (at 13). Mr Peters says his ‘family goes out here to collect bush plums and bush yams’ and there ‘is lots of food everywhere on this part of country. There is lots of turkey all over the right side of the tenement area. My family go hunting for turkey here’ (at 9).
Mr Peters says there ‘is lots of bush medicine all over this country here too’ and that his sister, Ms Peters ‘can tell you more about that’ (at 11). According to Ms Peters, there are ‘lots of bush medicines everywhere on the tenement area’ including Goolamoore for sores, Munami a restorative tea, and Binaback, described as ‘a green grass which we boil in water to make a medicine...which you then rub on the parts of your body where you have muscle aches or sore joints’. Ms Peters says they sell Binaback ‘medicine in jars at the Warmun Art Centre for tourists’ (at 15-17).
According to Mr Street, ‘I speak for all of that Yarranngi Riwi Yoowarni Gooniyandi portion of the tenement area. I used to live in this country’ (at 5). Mr Street says the ‘tenement area is very good for hunting. I used to go with my Mum and My Dad and my grandparents. The tenement area is a good place to catch goanna, emu, kangaroo.’ He says there is a ‘good fishing rockhole in the top part... You can catch brim and cod.’ He also says there ‘is lots of good bush medicine and bush tucker’ including ‘two types of bush gum along Dead Horse Creek’ and gulagi or bush banana (at 7-10).
ii.Are there any other interests that have already interfered with these activities?
I must take into account other lawful activities, such as those of pastoralists, which are likely to have already impacted on Kija or Gooniyandi community or social activities. The exploration licence is covered by three pastoral leases and is crossed by Mount Amhurst Road, 37 tracks and a number of yards and fences. The extent of pastoral activity is important to consider in particular because the Native Title Act specifies a pastoralist’s activities will prevail over any native title rights and interests, although do not extinguish them (s 44H). Therefore, in circumstances where an area is overlapped by a pastoral lease, the Tribunal may conclude that some interference with a native title party’s community or social activities is likely to have already occurred.
The State observes the area of the licence has prior mineral exploration activity as well as current pastoral activity. They contend that community and social activities have already been subject to these, or have co-existed, for a significant period of time. Therefore, they submit the grant of the licence would have no more impact than the previous and current use of the area. They also contend exploration activities are low-scale and infrequent, and although Baibao and Kija or Gooniyandi members might come across each other from time to time, there is no evidence their community or social activities might be prevented or disrupted in a significant way. Finally, the State contends that hunting and mineral exploration activities are inherently capable of coexistence. They assert the Tribunal has found this to be the case on numerous occasions and there is no particular or unusual evidence in this matter to suggest otherwise.
In this matter, the three pastoral leases overlap the licence in excess of 99 per cent. While there is no specific evidence as to the degree of such interference, I regard it is likely that pastoral activities have, to some extent, interfered with Kija and Gooniyandi social or community activities in the licence area.
iii.What are Baibao’s proposed activities?
Baibao have not provided any contentions or evidence regarding their activities and so I am entitled to consider they will exercise the full suite of rights which result from the grant of the licence. These include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and to excavate, extract or remove such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), reg 20).
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
In answering the above question, I must consider the activities currently being undertaken in the licence area by the Gooniyandi and Kija communities and weigh these against the activities Baibao are likely to undertake if the licence is granted. Whilst the evidence provided by Mr Dawson and Mr Street shows they used the area when they were younger, their evidence of current use is very broad and general. The evidence of Mr Peters and Ms Peters shows the area is currently accessed by their Kija families, who drive from Turkey Creek to camp along the rivers and creeks, fish, hunt, and search for bush tucker and bush medicine. Access to the area is limited during the wet season, according to the Peters’ affidavits, and I accept there is likely to be increased possibility of intersection with Baibao’s activities which would also be during the dry. However, there is no detailed evidence of: the frequency of visits; the numbers of community members involved; or whether this area is used more than other parts of Kija country. The evidence is not specific enough for me to conclude Baibao’s activities are likely to affect the Gooniyandi and Kija social or community activities in a substantial way.
I find the grant of the licence is not likely to substantially and directly interfere with the Kija or Gooniyandi community or social activities.

Will the grant interfere with areas or sites of particular significance to the Kija or Gooniyandi communities?

In considering this issue, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (Cheinmora v Striker Resources at 34-35).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
·If I am satisfied the site or area is of particular significance, I must analyse very carefully the potential interference, because of the importance it has to the native title holders. The nature of the site or area, the nature of the potential interference and the laws and traditions of the native title holders are relevant considerations (Silverv Northern Territory at [88]).
·Even slight interference may be unacceptable but it must involve physical intervention (Silverv Northern Territory at [88]).
·There must be a real chance or risk of interference with the site or area, not just a possible chance (Smith v Western Australia at [23]).
·I will give weight to State’s heritage and regulatory regime (Walley v Western Australia at [11]).
i.What areas or sites are identified?
The following sites are identified by the affidavit evidence:
·‘There are special badawa places at Fish Hole Yard, Blackfellow Spring and Blackfellow Creek where Kija and Gooniyandi people used to meet and do trading...every year in the wet season after the station work was finished and during law business time. These places are very special and the mining mob need to come talk to people from each tribe about them. No one person or tribe can make a decision about this tenement area or those badawa places’ (Mr Dawson at 17).
·‘Every wet season Kija and Gooniyandi people would...camp around Dead Horse Creek and the lower part’ of the YRY portion of the licence to ‘do ceremony and dancing’ and ‘teach the younger ones’ (Mr Street at 14-15).
·‘There is a special man’s place near Mt Amhurst and Black and Gliddon Mine towards Mueller Range where men meet up. No woman and kid can go there. I have a responsibility under my law to protect that man’s place. The company would need to talk to us before they go into that area’ (Mr Dawson at 18).
·‘There is a dreaming story that travels through the tenement area, the bottom right hand corner, as marked on the attached map. [The evidence then goes into detail about the dreaming story]. The story travels from Lattastone River (not far from Warmun) down to Ngarrawanji and across to Moola Bulla and then straight down (heading south) through the tenement area, crossing over Mt Amhurst road where Spring Creek is, and down across Margaret River and all the way to Fitzroy Crossing’ (Ms Peters at 20). Mr Peters knows this place ‘is very important to Gija people’ but says ‘I can’t go there and that I can’t talk about this place because I will get sick’ (at 12). Ms Peters says no one ‘can go on this part of the tenement area. It is very important part of country. If someone went there it would break our story line from dreamtime and would make me very sad and hurt. My family would all be sad and hurt’ (Ms Peters at 21).
·There are ‘workshops all over’ the YRY Gooniyandi portion of the tenement ‘where the old people made weapons for hunting’ (Mr Street at 12).
The State has provided results from the Department of Aboriginal Affairs (DAA) Aboriginal sites database for sites and heritage places within the licence. Sites recorded with the DAA can be characterised in two main ways. Firstly, as a Registered Site, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (AHA). Secondly, as an Other Heritage Place, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. The results show there are two registered sites and nine other heritage places overlapping the licence - only one of the other heritage places has been assessed and the others have the status of being ‘lodged’ and so apparently have not yet been assessed. The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. As recently held in the Supreme Court of Western Australia, s 5 of the AHA:
applies the Act to 'any place of importance or significance' where traditional cultural object have been left (s 5(a)), 'any sacred, ritual or ceremonial site which is of importance and special significance' (s 5(b)), 'any place' associated with Aboriginal people which is of historical, anthropological, archaeological or ethnographical interest which should be preserved (s 5(c)), and 'any place where objects' are traditionally stored (s 5(d)). It is thus apparent that 'places' as referred to in s 5(a), s 5(c) and s 5(d) are, by definition, 'Aboriginal sites'. The proscription in s 17 is against the excavation, destruction, damage, concealment or alteration of any 'Aboriginal site'. That must necessarily include any of the places referred to in s 5 (Robinson v Fielding at [81]-[82]).

The DAA recorded sites of ‘Mt Amhurst 2’ (ID 12602) and ‘Mt Amhurst 3’ (ID 12603) are described as ceremonial and are located in the area Mr Dawson describes as the ‘special man’s place’. 'Mt Amhurst 3' (ID 12601) is also nearby and described as a skeletal/burial site with restricted boundaries. These places overlap or are very near to the geographical feature of Mount Amhurst and are located on or near to the centre of the southern border of the licence. According to the database, while the precise boundaries for each site are restricted, they are not subject to gender restrictions. ‘Blackfellow Yard’ (ID 12558) is described as mythological and is located in the general area of Blackfellow Creek, described by Mr Dawson as one of the ‘special badawa places’. This area is around the northern border of the licence.
I mention this not because an identified site or area from the DAA database must correspond with sites identified in the inquiry evidence, but to indicate there are DAA sites which are registered or recorded to be on or near some of the areas identified by the Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi representatives. The State's contentions say as the DAA sites do not record gender restrictions, they are not the gender restricted place refered to in the evidence of the claim group representatives. I disagree with this argument. I recognise that where sites or areas are particularly sensitive or important, not all relevant information might be provided to a Government agency, for a number of reasons, including that there is not unanimous confidence in the regulatory system. I am confident in concluding that if the gender restricted site referred to in the evidence is not on these DAA areas or sites, it is very close to them, and so it is on or very near to the licence.
ii.Are any of these areas or sites of particular significance?
I must decide whether any of the sites or areas identified in the contentions and evidence is of particular significance to the Kija and Gooniyandi communities in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). I accept the following areas have been sufficiently identified as existing: on the licence; their significance explained and distinguished from other areas within the licence; and are of more than ordinary significance to the Kija or Gooniyandi communities in accordance with their traditions:
·The badawa places at Fish Hole Yard, Blackfellow Spring and Blackfellow Creek.
·The man’s place near Mount Amherst and Black and Gliddon Mine.
I have no doubt the remaining areas and sites described are also important to the Kija or Gooniyandi communities. I appreciate, for example, the importance of the dreaming story, and note that while it travels through a portion of the licence, it also exists down to Margaret River and travels not far from Warmun (120 kilometres from the licence) and across to Fitzroy Crossing. As such, it is associated with a much larger area than the licence in this inquiry. If certain aspects of the dreaming area within the licence are sensitive, native title parties can request non-disclosure orders be made so they can provide further, more detailed evidence about the area and sites associated with the dreaming. There is insufficient evidence for me to conclude the dreaming story area and the remaining areas and sites are of particular significance for the purposes of this inquiry.
iii.What are Baibao’s proposed activities in relation to these areas or sites?
Baibao have not provided any contentions or evidence regarding their proposed activities, and so I am entitled to consider they will exercise the full suite of rights which result from the grant of the licence. Under the Mining Act, Baibao can conduct high impact exploration and can extract up to 1000 tonnes of material from the licence. If, for example, this 1000 tonnes came from areas on or near the badawa places or the special men’s place, that would be direct physical interference with these sites of particular significance.
iv.Will the regulatory regime be sufficient to protect these sites and areas?
This has been a difficult matter to determine, as Baibao has not provided any guidance as to its proposed activities. I need to examine then the State's regulatory regime, and the evidence provided by the Yurriyangem Taam, Ngarrawanji and YRY Gooniyandi native title parties. The evidence was broad, and limited information relating to interference was provided about the restricted men's place which was stated to be in part because the person taking evidence was female. In deciding whether Baibao’s activities will interfere with the badawa places or the special men’s place, I must consider any protection provided by the regulatory regime. I must then weigh this protection against evidence about how Baibao’s activities might affect these sites and places.
The State and Baibao are on notice there are a total of 11 sites and other heritage places recorded on the DAA database which are located within the licence, and that the evidence provided in this inquiry shows there are likely to be other sites on the licence which require the State's heritage protection regime. Baibao now know and could reasonably be expected to know that the native title parties in this matter have indicated places or objects exist on this licence to which the AHA applies (see s 62 AHA).
In response to the native title parties concerns about the regulatory regime, including reference to the Western Australian Auditor General’s 2011 report Ensuring Compliance with Conditions on Mining, two of the State’s contentions in this inquiry (for Ngarrawanji and YRY Gooniyandi), indicate the regulatory regime with respect to site monitoring and protection has undergone improvement in recent years and the 'DAA invests most of its resources in preventing damage to Aboriginal heritage sites occurring in the first instance' (at 36). In that context, the State has indicated they will ensure the appropriate heritage protection is applied.
As part of the regulatory regime, the State intends to impose a condition on the grant of the licence allowing Yurriyangem Taam to request Baibao execute a Regional Standard Heritage Agreement (RSHA) in their favour. Yurriyangem Taam may choose which RSHA they prefer – from either the South West, Pilbara/Geraldton, Goldfields or the Central Desert regions. I have considered each of these RSHAs and note that all would require Baibao to notify, consult and, if necessary, carry out surveys with Yurriyangem Taam.
Specifically, the Central Desert RSHA requires surveys to be undertaken if ground disturbing works are contemplated in any area not previously subject to a survey under the RSHA. The Pilbara/Geraldton RSHA requires no survey only where: low impact exploration is undertaken; parties agree; the native title party waives all or part of their rights under the agreement; or a heritage survey has already been conducted in the area. The South West RSHA requires a survey request to be issued should ground disturbing works be contemplated.
The Goldfields RSHA requires parties to consult with each other to decide which areas require a survey. If a low impact activity is intended, they may elect a site avoidance survey or a site identification survey without cultural detail. If more significant activity is intended, then a site identification survey without cultural detail is required.
I acknowledge Mr Dawson’s responsibility to protect the special men’s place and his concerns that Baibao should ‘talk’ before going to these areas. However, these concerns are not specific enough for me to conclude interference is likely, especially given there is the opportunity for consultation with Baibao under an RSHA.
I am satisfied an RSHA will ensure the Kija community are consulted regarding the badawa places and the special men’s place. Mr Dawson who identifies as Kija, is responsible for the special men’s place (at 18). However, I note Mr Dawson specifically states the badawa places are important to both the Kija and Gooniyandi communities and that no ‘one person or tribe can make a decision about this tenement area or those badawa places’ (at 17). It is clear from the affidavits that both the Kija and Gooniyandi communities respect and acknowledge each other’s rights in the licence area. There is no evidence the Gooniyandi community’s interests would be misrepresented or ignored in any heritage surveys undertaken under an RSHA. The concern that no one ‘person or tribe can make a decision about this tenement area’ is not specific enough for me to conclude interference is likely. There is no evidence about what would happen to the sites or places if the Gooniyandi community weren’t consulted specifically about these.
I conclude the grant of the licence is unlikely to interfere with areas or sites of particular significance to the Kija and Gooniyandi communities.

Will the grant, or the exercise of any rights created by the grant, involve major disturbance to any land or waters concerned?

In considering this issue, I note the following principles:
·I must determine whether there is a real chance or risk of major disturbance to land and waters. The term ‘major disturbance’ is to be given its ordinary English meaning as understood by the whole Australian community, including the Aboriginal community (Little v Oriole Resources at [52]-[54]).
·The concerns of the Aboriginal community are relevant to evaluating the degree of disturbance. However, the concerns must relate to direct, physical disturbance arising from the grant or any rights created by it (Cosmos v Croydon Gold at [29]).
i.Is there any evidence that the land and waters have any special characteristics?
Mr Dawson, Mr Street and Ms Peters express a desire to protect country and have concerns that Baibao’s exploration activities might damage water sources on the licence. Ms Peters also worries about how the activities might affect bush tucker and bush medicine (at 19, 18 and 22). These concerns are expressed in general terms only.
The State’s documents show the licence is mostly pastoral leases, contains 37 tracks, Mount Amhurst Road, and a number of yards and fence lines. It is unlikely Baibao’s exploration activities would cause any more disturbance to land and waters than the current pastoral activities do.
There is nothing in the State’s documents or in the affidavits which indicates the land and waters in the licence area have any special characteristics.
ii.Will the regulatory regime be sufficient to protect these land and waters?
The State proposes to include a series of standard endorsements and conditions on the grant of the licence which relate to waste disposal, land rehabilitation, and the protection of water and native vegetation. There is no evidence Baibao won’t abide by the regulatory regime.
Because there is no evidence to indicate otherwise, I must conclude the regulatory regime is sufficient. The grant of the licence, or the exercise of any rights created by the grant, is not likely to involve major disturbance to the land or waters concerned.

Conclusion

The community or social activities carried on within the licence area have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Sufficient evidence has been provided to support a finding that sites and areas of particular significance exist on the licence. However, there is insufficient evidence to conclude these sites and areas are likely to be interfered with if the licence is granted. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of exploration licence E80/4851 to Baibao Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
12 August 2015

Appendix A: Draft Tenement Endorsement and Conditions

The grant of the exploration licence will be subject to the following conditions:

All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
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.
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.
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.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.

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:

The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
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:

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
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.
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:

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:

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 Surface Water Areas (Fitzroy River and Tributaries) the following endorsements apply:

The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
All activities to be undertaken with minimal disturbance to riparian vegetation.
No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:

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.