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					NATIONAL NATIVE TITLE TRIBUNAL

Application No: WO99/511


IN THE MATTER of the Native Title Act 1993 (Cth)
-   and –

IN THE MATTER an inquiry in to an objection to inclusion in an
expedited procedure
State of Western Australia (Government Party)

-and-

Derrick Smith & Others on behalf of the
Gnaala Karla Boodja People (Native Title Party)

-and-

South Coast Metals Pty Ltd (Grantee Party)

REASONS FOR A DETERMINATION
Tribunal:           Hon E M Franklyn QC
Place:              Perth
Date:               23 June 2000

Catchwords:          Native Title – Future Act – Acts attracting expedited
                    procedure – construction and interpretation of s 237 –
                    words 'is not likely to’ require a predictive assessment of
                    likely consequences of future act – ‘interfe re directly with
                    the carrying on of the community or social activities’ refers
                    to direct inte rference with physical ability to enjoy native
                    title rights – ‘major disturbance’ to be accorded its
                    ordinary English meaning – whethe r remedial action is
                    relevant to concept of ‘major disturbance’ – whether
                    evidence of grantee’s intention is relevant to predictive
                    assessment – observations on meaning of ‘areas or sites of
                    particular significance’ – observation on meaning and effect
                    of second limb of s 237(c) – standard of proof of ‘likelihood’
                    – whether ‘balance of probabilities’ or ‘real chance’


Legislation:        Native Title Act 1993 (Cth)


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         Mining Act 1978 W.A.

Cases:   Re Irruntyju-Papalankutja Community v State of WA/Broad
         Meadow
         NNTT WO95/7 Hon P. Seaman QC 6 October 1995
         Dann v State of Western Australia (1997) 144 ALR 1
         Ward v State of Western Australia (1996) 136 ALR 557
         Cheinmora v Striker Resources and Dann v State of Western
         Australia (1996) 142 ALR 21
         State of Western Australia v Ward (2000) 170 ALR 159
         Re Warden Calder; Ex-parte Cable Sands (WA) P/L (1998) 20
         WAR 343
         Re Warden French; Ex-parte Serpentine-Jarrahdale
         Ratepayers and Residents Association (1994) 11 WAR 315
         State of Western Australia v Bropho (unreported Fede ral
         Court 18 November 1996)
         Tillmanns Butcheries Pty Ltd v Australian Meat Industry
         Employees Union (1979) 27 ALR 367
         Transport Ministry v Simmonds (1973) 1 NZLR 359
         Jungarrayi and Ors v Olney and Anor (1992) 105 ALR 527




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BACKGROUND:

On 10th November 1999, in response to a notice under s 29 of the Native Title Act

1993 („the Act‟) given on or about the 9 th July 1999 that the State proposed to grant

Exploration Licence 70/2106 to the Grantee, which notice included a statement that

the State considered the grant to be an act attracting the expedited procedure, Derrick

Smith, a registered Native Title Claimant on behalf of Gnaala Karla Boodja People

(WC98/58), lodged an objection against the inclusion in such notice of that statement.

The grounds of objection are:

            „The proposed act is likely to involve, as a minimum, sampling and

            drilling on the land and waters concerned, and is also likely to result in

            other types of major disturbance to that area. This activity is highly likely

            to damage sites of particular significance to native title holders, which

            directly interferes with the community life of the native title holders.‟



The proposed tenement comprises 31.48km2 of land situated some 17km south west of

the town of Collie.



Pursuant to the Tribunal‟s directions, each party had lodged with the Tribunal and

served on the other parties a Statement of Contentions, copies of the documents on

which it proposed to rely, and submissions as to the meaning and legal effect of s 237

of the Act. Also pursuant to directions and as the witness evidence on which they

respectively proposed to rely, the Objector produced a brief outline of evidence to be

given orally by Joseph Adrian Northover, one of the registered Native Title Claimants

to the subject land, and the Grantee an Affidavit containing the evidence of Ian Robert

Mulholland, a Geologist and the Exploration Manager for Anaconda Nickel Ltd



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(Anaconda) responsible for the exploration activities of the Grantee, a wholly owned

subsidiary. The correctness and validity of the various exhibits to that affidavit were

not challenged. To the extent that written submissions and contentions as lodged with

the Tribunal were not addressed by the evidence led or given in cross examination or

re-examination or, if raising a point or question of law were not argued or advanced

in oral submissions, the Tribunal treats them as abandoned.



The documents produced by the State and admitted into evidence, the validity and

correctness of which were not challenged, reveal that there are no aboriginal sites

registered with the Aboriginal Affairs Department within the proposed tenement

boundaries and no aboriginal communities within the vicinity of the objection. The

State‟s Statement of Contentions assert, without challenge, there to be no aboriginal

community situated on the land the subject of the proposed tenement („the tenement).

It also asserts without challenge that the land the subject of the proposed tenement

comprises freehold land, State Forest numbers 25 and 26, roads and a tramway. The

mining tenement documents produced make clear that the proposed grant does not

include any private land referred to in s 29(2) of the Mining Act 1978 (W.A.) „except

that below 30 metres from the natural surface‟ of the freehold land within the

tenement boundaries. The said s 29(2) provides that, except with the consent in

writing of the owner and the occupier of the private land, a mining tenement shall not

be granted in respect of private land which has certain features identified in the sub-

section „unless the mining tenement is granted only in respect of that part of the

private land which is not less than 30 metres below the lowest part of the natural

surface of that private land.‟ Grantee‟s Counsel confirmed the application for the

grant excluded the top 30 metres of any private land. No point has been taken in



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respect of the difference in wording between the condition (which omits reference to

„the lowest point‟ of the natural surface) and the sub-section and, in my opinion,

having regard to the evidence, the difference has no relevance to the objection,

although in the absence of the private land owners consent, there may be an issue as

to land which is not 30 metres below the lowest point of the natural surface. Also

excluded by the operation of the Mining Act is that portion of prospecting licence

70/1266 which is within the boundaries of the proposed tenement. As the map,

exhibit „IRM3‟ to the Affidavit of Ian Robert Mulholland makes clear, that

prospecting licence is almost entirely inside the boundaries of the tenement, there

being only a thin strip along and outside its eastern boundary.



The Objector‟s application was heard on 10 th April 2000, all parties being represented

by Counsel.



THE OBJECTOR’S EVIDENCE:

Mr Joseph Adrian Northover, an Aboriginal Police Liaison Officer, resident and

stationed at Brunswick Junction, gave evidence on oath for the Objector and, by

leave, was cross examined by Mr S. Wright, Counsel for the State, and re-examined

by Objector‟s Counsel, Mr M. Rynne.         I found Mr Northover to be an honest,

straightforward and helpful witness. His testimony was to the following effect. In

addition to being a member of the registered claimant group, he is Chairman of the

Gnaala Boodja Land Council and personally has a traditional aboriginal connection

with the land the subject of the tenement the surrounding land, it all being part of

what he variously referred to as „the Collie area‟ and the „Wellington area‟. It is an

area substantially less than, but within the area of, the Gnaala Karla Boodja Claim



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(WC98/58). He was referred to and accepted as correct a map „IRM 6‟ annexed to the

Affidavit of Ian Robert Mulholland which, inter alia, outlines the boundaries of the

tenement and shows it to be wholly situate in the Wellington Dam catchment area and

to the south east of the Wellington Dam. The approximate upper half of the tenement

is heavily crisscrossed with vehicle tracks, the lower half also containing many

vehicle tracks but to a lesser extent. The northern portion of the tenement contains

pine forest which extends beyond it to the west and north. A comparison of the map

„IRM 6‟ with map „IRM 3‟ reveals the bottom portion of the tenement to be largely

freehold land and there to be also within it a strip of freeho ld land on its western side

about halfway along the western boundary and a thin strip along its eastern boundary

towards its southern end. The approximate lower half of the tenement is part of a

disease risk area extending east and west beyond its boundaries (see „IRM 6‟ legend,

DRA = Disease Risk Area). The only areas of the tenement that are not State Forest

are freehold. Map „IRM 6‟ shows the land to the west, north and east of the tenement

also to be heavily crisscrossed with vehicle tracks and to contain numerous roads.

The land to which Mr Northover claims connection includes the land shown on the

map „IRM 6‟ to and beyond its extremities to the west, east and north and, to the

south, as is indicated in the following description. He spoke only for what he referred

to as „the Collie area‟ in respect of which the people in that area had formed their own

Council (the Gnaala Boodja Council). That area he described as the land lying

approximately between the towns of Williams to the north-east of Collie, then south

to Darkan, then south-west to Boyup Brook, north-west to Donnybrook then north to

Roelands (near Bunbury).       He had earlier mentioned that his land extended to

Australind which is on the coast in close proximity to Roelands. The boundaries of

the area would be completed by an imaginary line (not necessarily straight) from



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Australind to Williams. He said that Collie is the centre of the area. Collie lies off

the map „IRM 6‟ to the north-east of the tenement.



Mr Northover testified that he and others camp and hunt on the tenement and the

lands surrounding it, generally to the west, north and east. They hunt for kangaroo

and emus. He spoke of a corroboree area used for „corroboree and telling young

boys‟ which, he thought, without being certain, would be west of the western

boundary of the tenement. The Collie area is significant to him because of the Collie

River. The map „IRM 6‟ shows the Collie River to the north-west of the tenement

and to run into the Wellington Dam. Although not sho wn on the map it is the fact that

on that branch it extends west to the coast at Australind, that another branch joins the

waters of the Wellington Dam at its northern extremity extending south and east to the

south of Collie (the Southern branch) and that it also extends on a separate course to

the north and north-east of Collie. There is a Dreaming of a hairy faced snake which

has a silver beard and is known as the Ngarngungudditj Walgu. This snake, he said,

came from the north of Collie and travelled through the land north of Collie making

resting places on the way. The tenor of his evidence is that it followed the Collie river

as it then was. It travelled to Eaton where it turned, pushing the estuary out at

Australind and thereby creating it. It then returned and rests at Collie where it is

sleeping. His evidence suggests, in ambiguous terms, that on its return journey or

sometime it passed through the tenement. He knows of two resting places but could

not say where they were as the map contained no contour lines, but was not prepared

to say they were on the tenement.        He indicated that there are other places of

importance, mentioning one, called Gibraltor Rock, as a very important place but

identifying its location as well to the east of the tenement and in the vicinity of Rose



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Track. That track appears on map „IRM 6‟ to the east of the Bibulmun Track. He

also spoke of a black goanna that ran through the area generally which other

Noongars could kill and eat but which he could not as it was his brother. It however

lived „a bit more out east‟. When hunting he and the other hunters travel through the

tenement. They have old camping grounds there where they camp. They have

camping areas right throughout the bush, inside and outside the tenement, and use

them when they go hunting.        The local Noongars have an agreement with the

Department of Conservation and Land Management (CALM) whereby they are

permitted to shoot in State Forests in the Wellington Catchment area. The map „IRM

6‟ shows all of the tenement, save for freehold land, to be subject to CALM Tenure

and or CALM management. They hunt and kill kangaroos. The kangaroo is his

totem and when he dies and is buried in Collie his spirit will live where his totem is in

the areas where he has wandered and hunted during his life. Aboriginal people from

outside the Collie area can only come into the area if they are given permission to do

so by the people from the area and comply with certain rules. There are „quite a few‟

Aboriginal people in Collie that walk through the area and hunt and camp, but only a

handful of people who have the traditions and physical association of the witness with

the area. He is the only one left in Collie who speaks the language and knows the

law. Particular families associated with the area are the Kellys, the Kahns, some

Ugles, the Harts, the Cockies, the last of whom „of the old people‟ is Mrs Vinney

Cockie aged 100 or 103 who now lives in Katanning as there is no one in the Collie

area to care for her. There would be approximately 300 Noongars living in Collie,

men, women and children, a lot of whom would use the area for particular (but

unstated) purposes. The witness knows those that hunt in the area as he has records of

the gun licences. A lot of non-aboriginal people also use the area for recreational



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purposes. They use the Bibulmun Track (to the east) and other land, including the

tenement. He spoke of the traditional way in which kangaroos must be treated when

hunted and when killed in a hunt, adding (ambiguously as to whether he was referring

to all or only some of those traditional ways), that „a lot of Noongars don‟t do it no

more because they reckon its silly old way‟. When he goes hunting 6 or 7 people go

with him and hunt in the traditional way he described. They go to the camps. He has

bush camps. He has billy cans hung in trees and nets to put his meat in hanging in

hollow trees or in the bushes. When he goes hunting he does not take those things

with him from the town. Having killed his meat he cuts it up and gets his billy can

and nets from the tree and lights a fire. This saves taking things out all the time. „…

everywhere you go through there you‟ve got your bush camp. …all over this way

east, not so far this way but west this side here of the dam, the water, north. Right

through the bushes here I got bush camps where I go and get a billy can. I put them

there and that‟s where I drink and eat‟. It was not clear to what he was referring by

the words „not so far this way‟.



He was not aware of the location of the freehold land within the tenement and could

only speak generally of the area. He made no mention of the Prospecting Licence

70/1266 or of any activities on it. [Section 48 of the Mining Act 1978 (WA) sets out

the rights conferred by such a licence. They include the right to enter and re-enter the

land with employees, vehicles, machinery, to prospect for minerals, to dig holes

trenches and pits, sink bores and tunnels, remove material and to take water, subject

however to the consent of the Minister (s 24)]. He is of the view that if gridline

drilling is done on the tenement it would more or less stop access „to what they are

doing‟ and worse, would upset the balance of „your borrunga, your totem, your spirit,



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the waterway, and the Ngarngungudditj Walgu‟. He asked where would the latter rest

when it came through the area. There was, however, no evidence to suggest that it

had rested on the tenement. He also expressed concern as to a clearing which his

hunting group had come across, in what, from the map „IRM 6‟, he thought was the

tenement, when tracking a kangaroo wounded when hunting at Kelly road, north of

the tenement. This clearing was of the nature of a „wirnot‟, that is, it is something that

is „not right‟, having bush growing all around it but itself being quite clear. He said

however that „they‟ did not think much of it until his father died and his grandmother

pointed out that there were graves „out there somewhere‟. He thought the clearing

might be a grave. In cross examination he said it might be a grave or a corroboree

ground but he did not know for sure. When hunting they would hunt around that area

but not go through it. He expressed the opinion that if there were exploration by way

of drilling within the tenement he would not be going there to hunt as there would be

no kangaroos because of the disturbance, his borrunga would be gone and his spirit

and his totem would leave the area. He gave no evidence of any experience with or

knowledge of drilling processes. He said that there used to be white cockatoos in the

area, the feathers of which were used for corroboree purposes and that when he took

young boys out for a corroboree „long time ago‟ he looked for but could not find

cockatoos. Nor could he find „Jubuks‟ which follow the watercourse, adding „that‟s

what has happened so far‟. It is his opinion that mining and exploration will clear the

area of kangaroos. As I understood his evidence a „jubuk‟ is a type of potato used for

food.




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In cross examination Mr Northover explained that the Gnaala Boodja Council was

formed to represent families living in Collie who traditionally lived there and in other

places within the Collie area and that 5 people from the Collie area were on the

Gnaala Karla Boodja Council, each representing a particular area within the Collie

area for their respective interests in the claim. The families who represented the

tenement area were himself, the Cockies, the Kellys, the Kahns, the Michaels and the

Harts. A new family from Pingelly had made Collie their home and he had given

them permission to shoot but always in company from somebody from Collie. The

land was not their land. The families he had named as belonging to the area would

number 30 to 50 people. Sometimes he would go shooting on his own. It is a

Noongar custom to go bush on one‟s own. When hunting he shoots kangaroo and

emu and also seeks emu eggs. When hunting, they stick mainly to the main roads but

go off on to the small roads and into the bush as it is illegal to s hoot from a road.

Before going hunting they telephone CALM to ascertain if there are workers in the

area. They hunt in the bush but not always in the same part of the bush but travel

around. If they go to a place and find no kangaroos „like, if somebody has already

been through there, we go somewhere else. We go east of Collie then to another bush

area‟. They do not hunt out an area. The main area in which they hunt is through the

Wellington Dam because of the bush. The pine plantation is not much good, but is a

good place to rest in summer as it is cool, but they do hunt through the pine plantation

in the tenement. It was not suggested that that is the only part of the pine plantation in

which they hunted. They mainly use the Mungalup Road (which runs from the west

into and through the tenement in a north-east direction and then beyond it further

north-east) and branch off from it onto the lesser roads into „those little areas‟. He did

not identify such areas. When they camp in the Wellington Dam catchment area they



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come in from the north of the tenement and follow the river. They set up camp north

of the tenement and go hunting through the area. Alternatively they would camp by

Wight Road (which runs from the Dam south to the west of the tenement and joins

Mungalup Road (see map „IRM 6‟)), and use it to gain access to smaller roads and

hunt from there. They also use the tracks shown on map „IRM 6‟ to the east of the

tenement off Mungalup Road to gain access to hunting areas. They stick mainly to

the roads as it is a disease risk area and CALM has stipulated they cannot go far into

the bush unless they walk. They also travel and hunt in the area of Mission Track (to

the east of the tenement) and down to and south of Boyup Brook Road (which travels

approximately east-west south of the tenement) and to Boyup Brook (south-east of the

tenement). To the west of the tenement they use all of the tracks to go hunting but

have to be careful when near Mungalup town site and farms in the area. They also

hunt in the area north of Collie (not on the map „IRM 6‟) and to the north of the

tenement area and to the north of the Wellington Dam (not on „IRM 6”). He goes to

Collie from Brunswick Junction most weekends and tries to go hunting at least once a

month. He is entitled to hunt in the Brunswick Junction area which he considers part

of his area although it is not part of the Objector‟s claim area, but does not do so as he

has little to do with the Noongars there because of Noongar social differences (later

referred to by objector‟s Counsel as the „social hierarchy‟). Those he hunts with all

live in Collie. They go hunting on occasions without him. Generally with them, he

hunts about once a month. When a kangaroo is killed it is hung in a tree to bleed and

the hunters sit about and yarn. When the kill has bled and the meat has set it is cut up

and again hung in the tree. They have wire and billy cans in the trees and cook meat

for their use at the camp. That‟s why they hunt not far from where they will cook their

meat and that way they only take a limited number of things with them hunting. The



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meat not eaten on the hunt is taken back to Collie for the old people and families. In

hunting they usually stay out a full day. If not working they might stay out longer.

On such occasions they take tarpaulins for shelter. Tourists visit, walk and drive

through the area, and the tracks are also used by log trucks. The witness has no

concern with tourists walking through the area or driving along the tracks but is not

keen on log trucks doing so. They see „quite a bit of‟ tourists. As a Police Officer he

gets called out to look for them if they are overdue. It was my impression from the

evidence that in using the word „area‟ in this context the witness was including the

tenement. He was concerned about disturbances of the water spirit in areas where it

had been drinking water from water holes but could not say if there were any water

holes within or in the vicinity of the tenement. A Corroboree area was identified as

being away from the tenement.



In re-examination Mr Northover said he had seen people on the Bibulmun Track and

also in the tenement. He testified that he is a volunteer SES member which trains

once a year throughout the whole area. To the east of the tenement there is the

„Wellington Mills camp site‟ which is used as a recreation camp for school children

and also for SES exercises of search and rescue. It has about 12 beds. The search

area extends throughout other areas. They often come across tourists and others in the

area both to the east and the west of and in the tenement. People go through the

tenement because „Wellington Mills‟ is famous for its wildlife. They also go through

there to get to the dam. There are tracks in the area where people are encouraged to

go. There is hilly country with views. He said that additionally to hunting he would

go camping in the area on his own, as did others from Collie. Although this evidence

was linked to an earlier question referring to families „associated with the tenement



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area‟, in its context it appeared to relate to the area generally and not specifically to

the tenement.



There was accepted into evidence on behalf of the Objector an extract (pages 99 to

113) from a publication issued by the Australian Mineral and Energy Environment

Foundation entitled „Environmental Management in the Australian Minerals and

Energy Industries‟.     My attention was directed by Objector‟s Counsel to an

assessment, in tabular form at page 100 of the potential impact of listed exploration

activities on land. The only reference I could find in the chapter to the table appears

in the opening paragraph of page 99 as follows:



            „Impacts of exploration activities form a continuum from zero through

            minimal to significant (see Table 5.1), but as most exploration does not

            result in mining or petroleum production the effects are usually short term.

            The important issues are the extent and intensity of the impacts and the

            degree to which they can be remediated. Even if the e xploration does not

            result in the discovery of an ore deposit or an oil and gas field, attention to

            minimising the impact will be rewarded in the industry‟s acceptance by

            the community and continued support for exploration elsewhere.‟



In my view the table and chapter is concerned with the need to prevent exploration

impact on the environment if possible, and if not possible, with the minimisation of

that impact. Their content does not lead to the conclusion that the various levels of

impact set out in the table necessarily follow from any of the listed activities but

rather that such activities have the potential to have impacts of those levels.



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THE GRANTEE’S EVIDENCE:

I turn now to the Affidavit of Ian Robert Mulholland sworn 7 th March 2000. He

deposed that he is responsible for the planning, budgeting and coordination of all

exploration activities undertaken by Anaconda, that the Grantee is a wholly owned

subsidiary of Anaconda and that, if and when the exploration licence is granted, he

will be responsible for all of its exploration activities. The affidavit annexes eight

exhibits marked „IRM 1‟ to „IRM 8‟ respectively.           He draws attention to the

endorsements on the licence and the conditions which are to apply if the tenement is

granted. The proposed endorsements draw the Grantee‟s attention to the provisions of

the following Acts and their respective regulations:

(i)      the Aboriginal Heritage Act, 1972

(ii)     the Country Area Water Supply Act, 1947

(iii)    the Land Drainage Act, 1925

(iv)     the Rights in Water and Irrigation Act, 1914

(v)      the Waters and Rivers Commission Act, 1995

(vi)     the Waterway Conservation Act, 1976

(vii)    the Conservation and Land Management Act, 1984

(viii)   the Bush Fires Act, 1954

(ix)     the Wildlife Conservation Act, 1950; and

(x)      Clause 9(20)(c) of the Alumina Refinery Agreement Act, 1961.



The conditions which will attach to the grant if made are set out between pages 5 and

7 of Mr Mulholland‟s Affidavit as well as in exhibit „IRM 1‟ and in the papers

produced by the State and admitted into evidence. They are as follows:




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„9.   The Conditions proposed by the Department of Minerals and Energy

      include the following:

1.    All surface holes drilled for the purpose of exploration are to be

      capped, filled or otherwise made safe after completion.

2.    All costeans and other disturbances to the surface of the land made as a

      result of exploration, including drill pads, grid lines and access tracks,

      being backfilled and rehabilitated to the satisfaction of the District

      Mining Engineer. Backfilling and rehabilitation being required no later

      than 6 months after excavation unless otherwise approved in writing by

      the District Mining Engineer.

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 District Mining Engineer is first

      obtained, the use of scrapers, graders, 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.

5.    No activity being carried out that will alter, interfere or pollute any

      drain, watercourse, excavation, swamp, marsh, stream, bore, well,

      spring, lake or lagoon.

6.    A licence being obtained from the Water and Rivers Commission

      (W&RC) prior to the construction of any bore or well.




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7.     The rights of ingress to and egress from any mining operation being at

       all reasonable times preserved to the authorised officers of W&RC for

       inspection purposes.

8.     A licence being obtained from the W&RC prior to the construction of a

       dam or diversion of any stream flow from a watercourse.

9.     No activity being undertaken that will interfere with the drainage

       within the area.

10.    Riverine vegetation not being disturbed or removed.

11.    No activity being carried out that will adversely affect groundwater or

       surface water quality or quantity.

12.    All hydrocarbon storage being referred to the W&RC for approval.

       Fuel storage areas require appropriate bunding and stormwater disposal

       on-site incorporation the removal of sediments and hydrocarbons.

13.    Tailings dams, disposal areas and dumps being sited so as to pose no

       threat to water course stability or to groundwater and surface water

       quality, and being constructed so as to be stable on decommissioning.

Consent to mine on State Forest No‟s. 25 and 26 given subject to:

14.    Prior to any disturbance to vegetation the licensee preparing a detailed

       program for each phase of proposed exploration for written approval of

       the State Mining Engineer in agreement with the Regional Manager,

       Department of Conservation and Land Management (CALM). This

       program to include:

       (i)     maps and/or aerial photographs showing all proposed routes,

               construction and upgrading of tracks, camps drill sites and any

               other disturbances.



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      (ii)    Proposals    which    may    disturb         any         declared                rare         or

              geographically restricted flora and fauna; and

      (iii)   Techniques, prescriptions and target dates for the rehabilitation

              of all proposed disturbances.

15.   The licensee, at his expense, rehabilitating all areas cleared, explored

      or otherwise disturbed during the term of the licence to the satisfaction

      of the State Mining Engineer in agreement with the District Mana ger,

      CALM. Such rehabilitation as is appropriate and may include:

      (i)     stockpiling and return of topsoil;

      (ii)    backfilling all holes, trenches and costeans;

      (iii)   ripping;

      (iv)    contouring to the original landform;

      (v)     revegetation with seeds and/or plants

      (vi)    capping and/or backfilling of all drill holes.

16.   Prior to the cessation of exploration/prospecting activity the licensee

      notifying the District Mining Engineer and Regional/District Manager

      CALM and arranging an inspection as required.

17.   The licensee informing the District Manager, CALM of the

      whereabouts of the operations and the licence areas by providing a

      works program or weekly advice of work location.

18.   Access to and from and the movement of vehicles within State Forest

      and Timber Reserves being restricted to road and tracks appro ved

      under the program or otherwise agreed by the District Manager

      CALM.




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       19.     The Licensee complying with the instructions of the Executive

               Director or his nominee in respect of the forests disease Phytophthora

               cinnamomi (or „Jarrah Dieback‟), the prevention and spread of that

               disease and general forest hygiene.

       20.     Entry into a Forest Disease Risk Area (D.R.A.) will only be undertaken

               by the licensee once a permit for vehicle access has been issued.

       21.     The licensee washing down and cleaning all rigs, vehicles, tools and

               other equipment to the standard required by the District Manager,

               CALM, prior to and on each occasion any such equipment, rig, vehicle

               or tool is brought onto or taken from the licence area. All sampling

               equipment to be cleaned between samples to the standard required by

               the District Manager, CALM.

       22.     The licensee taking all reasonable precautions not to unnecessarily

               destroy or damage vegetation on the licence area.

       23.     No firearms being used or taken onto the licence area.

       24.     The licensee not establishing any camp, base works or area, fuelling

               depot or similar establishment on the licence area unless the site and

               access has received prior approval of the District Manager, CALM.



Mr Mulholland points out that the map „IRM 6‟ was prepared by CALM, is dated

February 2000 and shows, inter alia, the Graticular Block Area of the proposed

tenement, the boundaries of State Forest Reserves 25 and 26, the boundaries of the

Wellington Dam catchment, and the plantation and disease risk areas, portions of each

of which fall within the proposed tenement as I have earlier described.




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It is his evidence, in summary, that the proposed exploration is primarily directed to

establishing whether the tenement contains ultramafic rock. The geological map

annexed to his Affidavit marked „IRM 7‟, published by Geological Survey of Western

Australia, shows a small area of ultramafic rock (marked purple) within the proposed

tenement well towards the southernmost boundary. I note that on a comparison of its

marked location on „IRM 7‟ with the map „IRM 6‟, that small area would seem to be

on freehold land.    The exploration licence is sought to enable investigation to

determine whether the proposed tenement in fact contains such rock and, if so,

whether it is sufficiently weathered and enriched to constitute an economically

mineable deposit of nickel laterite. If the exploration licence is granted, the Grantee

will undertake either or both aeromagnetic and ground magnetic surveys.                                          An

aeromagnetic survey will indicate potential ultramafic rock a nd is carried out by an

aircraft using a magnetometer. Such a survey creates no ground disturbance. A

ground magnetic survey involves traversing the relevant area on foot using a hand

held magnetometer which records variations of the earth‟s magnetic fie ld at ground

level and the magnetic field at points as the area is traversed.                                Usually, if

aeromagnetic survey data is acquired, a ground magnetic survey is needed only to

verify that the plot prepared from the aeromagnetic survey data correctly aligns wit h

existing plans of the proposed tenement. Usually such a ground survey involves the

preparation of grid lines established by driving 1.2 m stakes a depth of approximately

50cm into the ground at spacings of 100 m by 200 m over the area of interest. It does

not involve clearing or other disturbance to vegetation and, in the deponent‟s opinion,

which was not challenged, has a negligible, if any, effect on the environment. The

grid later serves as a reference for further exploration. If the survey data supports the

existence of ultramafic rock the Grantee would undertake reconnaissance exploration



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drilling to test its existence and nickel laterite content. Any such program would need

to comply with the conditions attached to the proposed grant. The intent ion in such

case is to undertake reconnaissance drilling by drill rig on 2 or 3 roads or tracks

running east to west over the tenement, the drill holes to be spaced 100 m to 200 m

apart. If it be found impractical to restrict drilling to roads and tracks, lines may have

to be cleared to enable access by the rig. Such lines initially would be spaced 400 m

to 800 m apart. No reconnaissance exploration would be undertaken in any heavily

wooded area. In lightly wooded areas, trees over 3 m would not be disturbed. The

said conditions of grant require approval from the District Mining Engineer for the

use of mechanical equipment before any lines can be cleared and the witness sets out

some of the information that must be provided when seeking such approval. As lines

are cleared the Grantee would undertaken inspections to assess the relevant area for

the presence of known and endangered flora species and possible aboriginal

archaeological heritage sites and, if any site is identified, its position will be recorded,

marked and avoided. The actual drilling will involve holes of 13 cm diameter to

depths of up to 50 m below ground surface at near regular intervals of 100 m to 200 m

suspected of containing ultramafic rock. Samples would be taken and assayed.

Depending on the assessment of the reconnaissance exploration drilling, „in- fill‟

exploration drilling may be found warranted. This would involve similar drilling and

sampling but in greater density, usually 50 m by 50 m. If the decision is taken to „in-

fill‟ drill, various surveys of the tenement will be undertaken including botanical,

aboriginal heritage ethnographic, and aboriginal heritage archaeological, by

independent consultants. It is the policy of Anaconda and the Grantee to comply with

all relevant legislation and all conditions imposed on the grant, to minimise

disturbance to the land (he giving some examples of steps to be taken at that end), to



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rehabilitating drill sites as soon as drilling is complete (indicating how this would be

done) and to remove rubbish daily. Mr Mulholland annexes to his affidavit as „IRM

8‟ the relevant portion of Anaconda‟s written exploration policy which is also the

Grantee‟s policy. It requires compliance with all relevant legislation and conditions

of grant, minimisation of land disturbances, rehabilitation of sites, daily removal of

rubbish and indicates methods of effecting such minimisation and rehabilitation. It is

a condition of the continued employment of employees that they comply with the

requirements of that document. He points out that although the grant of the licence

would authorise the excavation, extraction and removal of up to 1000 tonnes of earth,

soil, rock, stone, fluids or mineral bearing material over the term of the licence, in

exploring for ultramafic rock sufficiently enriched in nickel, there is no necessity for

excavation, other than by drilling as aforesaid. As a hypothetical example based on

the likely density of the ground material in the area of the proposed tenement he

calculates that 1000 tonnes of that material would equate 500 cu m which represents a

volume of 10 m x 10 m x 5 m or 22.3 m x 22.3 m x 1 meter. On his calculations, if an

excavation of 1 m depth is assumed, 1000 tonnes represents approximately 0.000016

of the Graticular Block Area of the tenement of 31 km2 .



Mr Mulholland made himself available for cross examination and was cross examined

by leave on an issue subsequently abandoned. There was no challenge to any of his

evidence given by affidavit. In re-examination he stated that the exploration works

could be restricted to week days without any difficulty, although it is more usual to

conduct the same as a continuous unit.




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THE LEGAL BACKGROUND:

Section 237 as it was prior to the coming into effect of the Native Title Amendment

Act 97 of 1998 („the old section‟) provided:

       „237. A future act is an “act attracting the expedited procedure” if:

       (a)     the act does not directly interfere with the community life 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 does not 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 does not involve major disturbance to any land or waters

               concerned or create rights whose exercise will involve major

               disturbance to any land or waters concerned‟.

As amended it now provides:

       ‘237. 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




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                                           23
               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’.



From the time of its first expedited procedure inquiry (Irruntyju-Papulankutja

Community/State of Western Australia/Broadmeadows Pty Ltd/NNTT WO95/7: Hon

P. Seaman QC 6/10/1995) until the decision of the Full Court of the Federal Court in

Dann v The State of Western Australia (1997) 144 ALR 1, delivered May 1997

(Wilcox Tamberlin and Nicholson JJ) (Dann: Full Court) the Tribunal had construed

the words „the act does not‟ in the old section as equivalent to and meaning „is not

likely‟. That construction was adopted and approved by Carr J in Ward v The State of

Western Australia (1996) 136 ALR 557 at 571, His Honour holding that the

expression „does not‟ in each sub-section of s 237, as a matter of law, must be read as

meaning „is not likely to‟. He went on to hold at 572 that „The tribunal was required

to make a predictive assessment of whether the grant of the exploration licences and

the exercise of the rights conferred by those licences would or would not be likely to

result in interference of any of the three relevant types‟. Also in Ward at 578 His

Honour overturned the Tribunal‟s interpretation of s 237(a) that the direct interference

with community life there referred to was limited to physical interference with the life

of the community, holding that „community life' might include all sorts of spiritual

and like activities which might be directly interfered with without physical

interference. His Honour confirmed that finding as to the meaning of „community

life‟ in Cheinmora v Striker 142 ALR 21 (heard jointly and reported with Dann v



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State of Western Australia and others (1996) 142 ALR 21, (Dann 1) holding also in

that case that the predictive assessment should be based on the proposition that

interference or major disturbance may be „likely‟ even though the Tribunal be not

satisfied on the balance of probabilities that it will occur. He went on to say that a

„real chance‟ that interference or major disturbance will occur was in his opinion

inconsistent with the statutory requirement that it „does not‟ occur.



The decision of Carr J in Dann 1 was the subject of appeal to the Full Court of the

Federal Court (Dann: Full Court supra). Relevantly for present purposes the Full

Court found that His Honour and the Tribunal erred in construing the words „the act

does not‟ as meaning „the act is not likely to‟ and held that the old s 237 directed

attention to what the future act „does‟, that is to say its legal effect, and that it should

not be read as requiring the Tribunal to make predictive assessments as to the likely

consequences of the future act. The Full Court also found that His Honour erred in

finding that the Tribunal's predictive assessment should be based on the proposition

that the interference or major disturbance referred to in s 237 may be likely though the

Tribunal is not satisfied on the balance of probabilities that it would occur, holding

that the standard of proof to determine what the future act „doe s‟ was that of the

balance of probabilities.



That background of judicial interpretation of the old s 237 is useful in determining the

reasons for and legislative intent of the amendments effected by the Amendment Act.

Section 237 as amended has not yet been the subject of judicial interpretation and the

decisions appropriate to the interpretation of the old s 237(a), (b) and (c) are, in

certain important aspects, no longer appropriate. The Tribunal is no longer concerned



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with the Full Court decision in Dann insofar as it dealt with the meaning and effect of

the words „does not‟ in paragraphs (a), (b) and (c), those words having been replaced

by the words „is not likely‟. Nor is it concerned with the conclusion of Carr J in Ward

that direct interference with „community life‟ is not limited to physical interference as

s237(a) has been amended by deleting the words „does not directly interfere with the

community life of …‟ and replacing them with the words „is not likely to interfere

directly with the carrying on of the community or social activities of …‟. Paragraph

20.39 of the Native Title Amendment Bill 1997 Explanatory Memorandum deals

expressly with those matters. It says:

       „When an act attracts the expedited procedure:

       20.39 Existing section 237 sets out the circumstances when an act attracts the

       expedited procedure. If native title parties object to the expedited procedure

       for a particular future act, the arbitral body must determine whether the act

       meets the requirements set out in section 237. Some changes are being made

       to section 237 as set out below (these were proposed in the 1996

       amendments).

          The first change addresses a Federal Court decision (Ward v Western

           Australia (1996) 136 ALR 557) and provides that an act will only attract

           the expedited procedure in section 32 if it is not likely to (rather than „does

           not‟) interfere directly with the physical aspects of community life. If

           there is evidence that the act will interfere with native title claimants‟

           physical ability to enjoy their native title rights, for example placing an

           impediment to hunting, fishing or gathering or the ability to conduct

           religious ceremonies, the expedited procedure will not apply. [Schedule 1,

           item 42]



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          The other changes confirm that, because it is not possible fo r the arbitral

           body to know the actual effect of a future act in deciding whether it attracts

           the expedited procedure, the arbitral body must undertake a predictive

           assessment, and look at what is likely to occur. [Schedule 1, items 43 and

           44]‟

There has been some dispute before me as to how the section should be interpreted.

In my opinion the words of the section themselves, whilst leaving open the requisite

degree of „likelihood‟, provide its meaning, which is confirmed by the Explanatory

Memorandum. In my view the Explanatory Memorandum is properly available for

use in the interpretation of s 237 as it is capable of assisting in interpreting and indeed

confirming its meaning, specifically in regard to what is required to be done in

ascertaining whether the future act is „not likely‟ to have any of the consequences

specified in s 237(a), (b) or (c). It makes clear that the Tribunal must undertake a

predictive assessment and look at what „is likely to occur‟. In my opinion the use of

the Explanatory Memorandum is authorised by s 15AB(1), (2)(e) and (3) of the Acts

Interpretation Act 1901 (Cwth), by the purposive approach to the interpretation of

statutes and pursuant to the „mischief rule‟ of interpretation. The first „mischief‟ it

seeks to remedy is the effect of the Full Court‟s rejection of Carr J‟s interpretation of

„does not‟ as meaning „not likely to‟ and his consequent conclusion that a

determination whether or not the act was „not likely to‟ requires a predictive

assessment of whether the grant of a licence and the exercise of the rights conferred

by it would or would not be likely to result in relevant interference or disturbance. It

also seeks to remedy the conclusion of Carr J in Ward that the direct interference

referred to in s 237(a) is not limited to physical interference, the Explanatory

Memorandum making clear that s 237(a) is concerned with and limited to interference



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with the physical aspects of the carrying on of community or social activities of the

Native Title holders. This is consistent with the finding of the majority of the Full

Court of the Federal Court in W.A. v Ward & Others (2000) 170 ALR 159 that the

common law only recognises native title rights and interests which involve physical

use and enjoyment of the land.



THE PARTIES CONTENTIONS AND SUBMISSIONS:

The State and the Grantee contend that the predictive approach applies to the

assessment necessary for the purposes of s 237(a), (b) and (c). Mr Rynne for the

Native Title Party conceded only that the predictive approach applied to the

interpretation of the s 237 (a), (b) and the first, but not the second, limb of para (c).

He also contended, contrary to the contentions of the State and the Grantee, that the

activities referred to in (a) need not be physical. As I understand his submission it is

that s 237 (a) encompasses concern by an Aboriginal community as to some

exploration activity on the proposed tenement which concern causes the community

to engage in some activity which need not be physical and which itself interferes with

the ordinary life, and so the community or social life of the community. I do not

accept that submission.     It ignores the use of the word „directly‟ appearing in

paragraph (a) and is difficult to reconcile with the words „carrying on of the

community or social activities‟. It is also inconsistent with the purpose and intent of

the section as confirmed by the Explanatory Memorandum. Furthermore, there is no

evidence of any such concern or activity. Mr Rynne further submitted that the words

„is not likely to‟ in the section should be construed as „a likelihood of whatever

degree‟, but that in any event the evidence led to the conclusion that the interference

referred to in s 237 (a) and (b) was more likely than not. It is the contention of both



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the State and the Grantee that the said words should be applied in the sense of

„balance of probabilities‟, i.e. more likely than not, and that the ordinary meaning of

the words and the need to make a predictive assessment require regard to be had to the

Grantee‟s intentions. The Native Title party‟s written and oral submissions in respect

of paragraphs (a) and (b) and the first limb of (c) accept the relevance of the Grantee‟s

intentions and the regulatory regime imposed by conditions endorsed on the proposed

licence or by statute on the exercise of the rights created by such licence.



In respect of s 237 (a) Mr Rynne referred to Mr Northover‟s evidence as to the use of

the tenement for hunting and camping by those members of the claim group whom he

represented as being a community or social activity within the meaning of para (a)

and to his evidence that the Grantee‟s activities would drive the wildlife away, thus

depriving him of the ability to hunt there. There was no evidence of any other

community or social activity carried on on the tenement. He also relied upon Mr

Northover‟s evidence that, sometime in the past, white cockatoos, the feathers of

which were used for corroboree purposes, had departed from the area and not

returned, as supporting the possible effect of drilling activity on the land on wildlife

and the objector‟s community and social activities. With respect there is no evidence

as to what caused the cockatoos to depart the area or the jubuks no longer to be found.

One inference is that it could be the degree of activity in the area by workmen,

hunters, tourists, vehicles, SES exercises or the activities, if any, on the freehold land

and that the subject of the Prospecting Licence. Nor is there any evidence of Mr

Northover having any experience or understanding of the effects of the drilling or

other activities of which Mr Mulholland gave evidence on the environment or wildlife

in the vicinity. In my view it does not follow from the evidence or as a matter of



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common knowledge that the wildlife the subject of the hunting would necessarily

leave the tenement or its vicinity because of that activity.



In respect of s 237(b) Mr Rynne asserted that the tenement was of particular

significance to Mr Northover because of the stories surrounding the hairy faced snake.

As to that, the evidence does not lead to the conclusion that any part of the tenement

has relevant „particular significance‟ i.e. a special or more than ordinary significance

to Mr Northover or the Objectors generally (Dann 1, at 34-35). The evidence was that

the Collie area generally has significance because of the travels of the hairy faced

snake but the witness did not attribute or give evidence to support a „particular

significance‟ in respect of the tenement in relation to those travels or otherwise. The

tenement is also of general significance to him in common with the whole Collie area

because of its connection with his totem. In my opinion, that also does not lead to a

conclusion of relevant „particular significance‟. Mr Rynne also asserted the tenement

to be of importance to Mr Northover in the activities of hunting and camping because

of the „social hierarchy‟ among members of the claim group. With respect, that

assertion has no foundation on the evidence. The evidence of social hierarchy having

bearing on Mr Northover‟s activities related to the Brunswick Junction area in respect

of which he testified he preferred not to hunt there because of social differences in

accordance with aboriginal custom between himself and those that live there. It was

his evidence that that area was outside the claim area. In my view, even were it in the

claim area, it would not give rise to a relevant area or site within the meaning of para

(b).




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As to the first limb of s 237 (c) Mr Rynne conceded that the State has heavily

conditioned the grant of the licence to ensure minimum interference with the

biodiversity of the area but again pointed to the evidence of Mr Mulholland as to the

proposed activities and submitted that what must be considered was the likely

disturbance divorced from any remedial action. He further submitted that the views

of the local aboriginal community should have particular weight in determining

whether the exploration activities are likely to involve major disturbance in the eyes

of the Australian community as a whole. In my opinion it does not follow that

paragraph (c) must be construed so that no account is taken of any remedial action

proposed or to be undertaken by the Grantee in respect of any disturbance involved in

the exercise of the rights created by the future act. Paragraph (c) does not speak of

major disturbance „caused‟, but of major disturbance „involved‟. In my opinion,

depending on the nature, extent and duration of the proposed disturbance and the

nature and timeliness of the relevant remedial work (which requires a consideration of

the licence conditions and the regulating regime to which the exercise of the grantee‟s

rights is subject), it is a matter for the Tribunal to determine whether, in the eyes of

the whole Australian Community including the Aboriginal community and taking into

account the views of the Native Title holders as revealed by the evidence as to the

disturbance and the remedial action, the future act, in all of the relevant

circumstances, is likely to involve major disturbance. As to the second limb of s 237

(c) Mr Rynne drew attention to the „right‟ conferred by s 67 of the Mining Act 1978

(WA) to apply for and, subject to certain provisions of that Act, be granted a Mining

Lease which would confer substantial rights to mine pursuant to s 75 of that Act,

thereby, in his submission, involving major disturbance. In my opinion the question

whether the grant of an Exploration Licence confers or creates a right to the



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subsequent grant of a Mining Lease under s 67 has been answered in the negative by

the decisions of the Full Court of the Supreme Court of Western Australia in Re

Warden Calder; Ex-parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 (a Court of

5 Judges) and Re Warden French; Ex-parte Serpentine-Jarrahdale Ratepayers and

Residents Association (1994) 11 WAR 315 (a Court of 3 Judges), to which the State

draws attention. In Re Warden French, Ipp J, (with whom Kennedy J agreed, Pidgeon

J dissenting) said at 326 to 327:

       „The obligation of the Minister, under s 75(7) to grant an application for a

       Mining Lease made by the holder of the prospecting licence or an exploration

       licence, is expressed by that section to be „subject to this Act‟. The Act

       qualifies that obligation by s 111A. Under s 111A the Minister may refuse an

       application for a mining tenement if he is satisfied on reasonable grounds that

       it is in the public interest that the land should not be disturbed or that the

       application should not be granted.      In my opinion, the ob ligation of the

       Minister under s 75(7) is subject to his discretionary right of refusal under s

       111A. Therefore, until the Minister – having applied his mind to s 111A –

       duly grants a mining lease, the applicant for such a mining lease has no title –

       whether conditional or otherwise – thereto‟.



That decision was followed in Re Warden Calder (Pidgeon J dissenting), the above

passage from the Judgement of Ipp J being quoted with approval by Steytler J with

whose reasons Kennedy, White and Wheeler JJ agreed



The validity of that decision is not affected, in my opinion, by the amendments to s

237. Consequently it cannot be said that the grant of the exploration licence is likely



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to create a „right‟ to a mining lease whose exercise is likely to involve major

disturbance, as no „right‟ to a mining lease can be created by the grant.



It is the State‟s further contention that, in any event, the grant of a mining lease is a

separate „future act‟ for the purposes of the Native Title Act 1993 and subject to the

future act provisions of that Act. I accept the validity of that submission. I find that s

67 of the Mining Act 1978 (WA) does not create a right, within the meaning of the

second limb of s 237(c), to the grant of a mining lease.



Mr Rynne‟s submission as to the second limb of paragraph (c) is that unlike the first

limb, in construing it one does not have regard to how the exercise of the rights

created by the future act are conditioned or regulated by other legislation nor how, if

at all, it is intended by the Grantee that they or any of them shall be exercised, but

rather only to the „bare rights‟ created by „the act‟, in this case, the grant of an

exploration licence. The submission is that, unless so construed, the second limb adds

nothing to the first limb and has no function. The question as I understand the

submission, is simply, if all or any of the „rights‟ (excluding conditions imposed and

statutory and discretionary regulatory factors) created by the future act are exercised,

is it likely that the exercise is likely to involve major disturbance? He does not

however suggest that the words „the act‟ as used in the first limb of paragraph (c)

should have any meaning other than that established in Dann: Full Court (supra) to

which I refer below.



Mr Rynne‟s construction, whilst on its face arguably open on a reading of the second

limb in isolation, causes great difficulty in construction.              Firstly it ignores any



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conditions imposed on and the statutory regime which applies to the exercise of the

rights created by the grant which reduce the ambit and so the extent of what Counsel

refers to as „the bare right‟. Secondly, at least in the circumstances of this case, it is

inconsistent with the interpretation of the words „the act‟ in paragraphs (a), (b) and (c)

as determined in Dann: Full Court the correctness of which is not challenged. Each

member of the Full Court accepted the conclusion of Lee J in Western Australia v

Bropho (unreported, Federal Court, 18th November 1996) that the expression „the act

does‟ as used in the old s 237(a), (b) and (c) required the Tribunal to examine what

the future act does according to the nature of the rights it creates but in the context of

the terms and conditions and the statutory rights and obligations that arise on the grant

and those that affect the exercise of the rights it creates. The judgement of Carr J in

Ward was given on that same basis. In that case at 564 His Honour observed that the

Tribunal enquiries and the appeals then before him were conducted on the basis that

„the relevant future act was not simply the grant of each exploration licence but

included the activities authorised by the licence notwithstanding the distinction drawn

in s 237(c)‟ (underlining added). The amendments to s 237, in my opinion, do nothing

to lead to a conclusion other than that the nature and meaning of the words „the act‟ as

used in s 237(a), (b) and (c), at least in the case of a grant, is to be determined in the

light of the rights which „the act‟ creates and in the context of the terms and

conditions of the statutory rights and obligations which arise on the grant and those

that affect the exercise of the rights it creates.. Dann, Bropho and Ward, like the

present case, were each concerned with the proposed grant of an exploration licence

and the judgements should be understood in that light. But the definition of „future

act‟ (s 233 read with s 226(2)) encompasses many other and different kinds of future

acts. In the case of an exploration licence, the second limb of s 237(c) appears to add



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nothing to the first limb and so to have no function. The point was not argued but the

fact that paragraph (c) poses two questions may provide a meaning and function, in

the appropriate case, for the second limb. The first question is whether the act is not

likely to involve major disturbance?; the second, whether the act is not likely to create

rights whose exercise is likely to involve major disturbance?. Consistently with

Dann: Full Court, the first is concerned with the rights created b y and at the time of

the grant. The second suggests rights to come into existence (if at all) subsequent to

the future act. It may be that, in the case of a future act of another kind in respect of

which there is a right to negotiate (see sections 226(2), 233, 26(1A) and (1)(c)), the

circumstances can provide a function for the second limb. However I take the matter

no further. In the present case Counsel‟s construction of the second limb would

require the term „the act‟ as used in paragraph (c) in respect of the second limb, to be

construed differently to its construction for the purposes of paragraphs (a), (b) and

the first limb of (c) and contrary to authority (Dann: Full Court). I do not accept that

construction.



STANDARD OF PROOF AND PREDICTIVE ASSESSMENT:

I turn now to the Native Title Party‟s submission that the standard of proof to be

applied by the Tribunal in determining the application of s 237 is whether there is a

likelihood, to any degree, that the act will have the consequences set out in either

paragraph (a), (b) or (c) of the section. No authority was produced in support of the

submission. Save to the extent discussed above in respect of the second limb of

paragraph (c), it was not in contention that the „act‟ is the grant and the rights it

creates. The essential nature of the relevant future act does not change by virtue of

the amendment to the section. The task of the Tribunal however has changed from



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that of examining what the future act „does‟ to that of examining what it is or is not

likely to do (in the respective contexts of paragraphs (a), (b) and (c)) according to the

nature of the rights it creates. Tamberlin J (in Dann: Full Court at 13) expressed the

opinion that „even if one were to take the predictive assessment approach, there is no

justification for applying a „real chance‟ test when making a finding as to what may

be likely to occur‟ and that „in order to determine whether a result is „likely‟ there is

no justification for a departure from the ordinary civil standard of balance of

probability‟. In my view those observations were obiter, His Honour being concerned

with the Tribunal‟s task under the old section and he having rejected both the

interpretation of „does not‟ as meaning „is not likely‟ and the predictive approach

found appropriate by Carr J. Wilcox J agreed with the reasons of Tamberlin J without

comment as to those observations. Nicholson J at 22, without referring to them,

queried whether Carr J had in fact adopted the „real chance‟ test. He found the

appropriate standard of proof under the old section to follow from the „precise

wording of s 237‟, that it was „necessary to ascertain what the future act „does‟ ‟, that

the standard of proof was „whether it was more probable than not‟ and that no other

standard of proof of should be imported. As the word „does‟ no longer appears in the

section these comments have no present relevance.



In my opinion the amendments to s 237 have removed any compulsive authority as to

the standard of proof in respect of s 237 determinations that Dann: Full Court (supra)

had provided. The words „is not likely‟ have a different meaning to the words „does

not‟ and the standard of proof for one is not necessarily the standard for the other.

The words „is not likely‟ import an element of speculation and so a degree of

likelihood which will vary with the information available to the Tribunal. The finding



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to be made in respect of each of paragraphs (a), (b) and (c) is whether „the act‟ is or is

not likely to produce the specified consequence. It does not go to the issue whether or

not it will or will not produce that consequence. On the other hand the words „does

not‟ denote a finding of fact as to the legal effect of the grant devoid of speculation.

The finding is that the act either does or does not produce a specified consequence.

The Tribunal‟s findings, whatever they be, can only be made on the evidence.



Both the State and the Grantee contend that the determination of what is the likely

relevant consequence of the grant of an exploration licence for the purposes of s 237

requires the Tribunal to take into account the present intentions of the Grantee as to

the exercise of the rights created by the grant. A similar submission is made by the

Native Title Party but limited to paragraphs (a), (b) and the first limb of (c) of s 237.

The effect of the submission is that instead of having regard to what the future act

(„the grant‟) is likely relevantly to do, the Tribunal should have regard to what the

Grantees‟ presently intended exercise of the rights created by the grant is relevantly

likely to do. That however is not what the section says and is inconsistent with the

meaning given to the words „the act‟ in Dann: Full Court and as I have earlier herein

held to be the meaning of those words. It is also inconsistent with the approach

adopted by this Tribunal in the past when it construed the words „the act does not‟, as

used in the old section, to mean „the act is not likely to‟.                       In Re Irruntyju-

Papulankutja Deputy President the Hon P. Seaman said at 6:

       „The grant of a licence cannot cause the interference or disturbance to which

       the section refers without activity by a grantee party. Bearing in mind that the

       provision is concerned with an expedited procedure I am of the view t hat,

       absent exceptional circumstances, the effect which the grant is like to have is



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       not to be judged by a consideration of the intentions and capacities of

       particular grantee parties but by the power of the government party to control

       the activities of a grantee party by existing legislation, conditions of grant and

       regulatory process and upon the basis that grantee parties will act lawfully‟.



In my opinion, subject to the qualification I shortly make, that conclusion of the

Honourable Deputy President correctly identifies the approach to be taken by the

Tribunal. It allows for exceptional circumstances in which evidence of the Grantees‟

intentions and capacities may be relevant but recognises that statements of present

intention, no matter how genuine when made, do not necessarily reflect what, as

exploration proceeds, will be the actual exercise of the rights created. As was said by

Nicholson J in Dann: Full Court at 20 „[the] intentions of a present holder of a mining

tenement will hold good only so long as the holder remains entitled to the tenement or

maintains the intention‟.   However it cannot be fairly said, in my opinion, that

evidence of intention can never be relevant to the predictive assessment. The fact that

the Grantee in this case expresses his present intention as to the exercise of the rights

gives rise to the likelihood that those rights will be exercised as a minimum to the

intended extent but dependant on the results of the progressive exploration steps.

Further there may well be cases where the overall evidence gives rise to the likelihood

that the expressed intentions will in fact be carried out. The degree of likelihood in

each case will vary with the circumstances as will the weight to be given to the

evidence of intention. It is probable that in many, if not most cases, the weight given

will be negligible, if any is given at all. That however does not mean that evidence of

intention should always be ignored. Logically it is relevant to „likelihood‟. For those

reasons I am of the view that evidence of the Grantee‟s intentions as to the exercise of



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the rights created by the grant is admissible but the weight (if any) to be given to that

evidence will vary with the circumstances as the Tribunal finds them to be.



In the present case the fact that the Grantee, a wholly owned subsidiary of a well

experienced mining company has applied for the tenement and the evidence of Mr

Mulholland leads to an inferential finding of the possibility and so the likelihood to

some degree of the discovery of the relevant economically viable mineralisation, the

degree of likelihood however being impossible to assess at this stage as it is to be

established, if at all, progressively in the manner and by the methods he describes.

Consequently his evidence is not particularly helpful in determining the degree of

relevant likely interference or disturbance.



In my opinion, in the absence of evidence to the contrary, it would be improper to

assume that, in exercising the rights created by the grant, the Grantee would act in

breach of the conditions imposed on the licence or in defiance of the various statutes

and regulations which apply in respect of and would restrict the exercise of such

rights. Nor should it be assumed that those empowered by any such statute or

regulation to exercise a discretion as to the manner or extent of the exercise of all or

any such rights would not act properly within the boundaries of the discretion. The

presumption of regularity must prevail in the absence of evidence to the contrary. It is

of course not possible to assess how or the likelihood of how any such discretion will

be exercised but that does not necessarily lead to a conclusion of likelihood of

relevant interference or disturbance. In some cases, depending on the nature of the

discretion, its exercise may prevent a finding of likely „direct interference‟ within the

meaning of s 237(a) in that the interference, at least arguably, flows from the



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discretionary decision and not directly from the „act‟. That a discretio n may exist and

its nature and subject matter are matters to be taken into account and given such

weight as the circumstances require, in determining „likelihood‟.



The methods of exploration of which Mr Mulholland gave evidence, to the extent that

the progressive steps make their respective use likely, are subject to the conditions,

statutes and regulations endorsed on the proposed licence and, of course, to the

restrictive and regulatory provisions of the Mining Act and its regulations. I do not

set them out. Written submissions in respect of them have been filed. Having

assessed, on the evidence (including a consideration of the nature of the grant and the

various statutes and regulations which may affect the exercise of the rights created),

the degree of likelihood of the interference and/or disturbance from the Grantee‟s

activities, the task of the Tribunal is then to determine whether that degree of

interference and/or disturbance is not likely to interfere as specified in s 237 (a) or (b)

or to involve major disturbance as specified in paragraph (c). This of course requires

a consideration of the evidence relevant to the activities, areas, sites and major

disturbances (if any) the subject of s 237.



The State and the Grantee contend that the appropriate standard of proof is that of the

balance of probabilities. The State asserts this to be the ordinary and natural sense of

the words „is not likely to‟. The Grantee relies on the observations of Tamberlin J

that the proper standard to be applied in determining whether a result „is likely‟ is the

ordinary civil standard of balance of probabilities. All parties seem to accept, as do I,

that the determination of what is „not likely‟ involves a consideration of what is




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„likely‟. In Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees

Union (1979) 27ALR367 Bowen CJ at 375 said:

       „The next question is whether the conduct was such that it would have or be

       likely to have the effect of causing substantial loss or damage.

       The word „likely‟ is one which has various shades of meaning. It may mean

       „probable‟ in the sense of „more probable than not‟ – „more than a 50 per cent

       chance‟. It may mean „material risk‟ as seen by a reasonable man „such as

       might happen‟. It may mean „some possibility‟ – more than a remote or bare

       chance. Or, it may mean that the conduct engaged in is inherently of such a

       character that it would ordinarily cause the effect specified.‟



Deane J in the same case at 380 to 381 said:

       „The word „likely‟ can, in some contexts, mean „probably‟ in the sense in

       which that word is commonly used by lawyers and laymen, that is to say, more

       likely than not or more than a 50 per cent chance („an odds-on chance‟: per

       Lord Hodson, Czarnikow Ltd v Koufos [1969] 1 AC 350 at 410 and see, as to

       the meaning of the word „probable‟, Eggleston, Evidence, Proof and

       Probability, 1978, p 10ff). It can also, in an appropriate context, refer to a real

       or not remote chance or possibility, regardless of whether it is less or more

       than 50 per cent. When used with the latter meaning in a phrase which is

       descriptive of conduct, the word is equivalent to „prone‟, „with a propensity‟

       or „liable‟.   When so used, it is sometimes equated with the concept of

       foreseeability in the law of negligence (see, for example, Overseas Tankship

       (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound No 2) [1967] ALR




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       97; [1967] 1 AC 617 at 634-5; Callaghan v Wm C Lynch Pty Ltd (1962) 79

       WN (NSW) 830 at 835)‟.



and further at 381 said:

       „In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd

       (1976) 14 SASR 303 at 308-13, Bray CJ, after an instructive consideration of

       relevant authorities, expressed the view that the ordinary and natural meaning

       of the word „likely‟ is synonymous with the ordinary and natural meaning of

       the word „probable‟ and both words mean that there is an odds-on chance of

       the thing happening. His Honour added that statutes containing the words

       have usually been construed that way, particularly so where the statute is a

       penal statute or is imposing an additional liability in tort.                     This view, if

       accepted, would lead to the conclusion that, prima facie, the word „likely‟ in s

       45D(1) (sic) means probably in the sense of more likely than not. While

       dictionary definitions and examples of judicial and lay usage can be adduced

       to offer strong support for that view, I am unable to accept that likely is

       synonymous with „more likely than not‟ or that if there is a 49.9 per cent

       chance of an event occurring it would ordinarily be denied that it was likely

       (or „quite likely‟) that the event would occur. Nor does it appear to me that

       there is a presumption that, in a legislative provision proscribing conduct that

       is likely to cause loss or damage to another, the legislative intent was that

       conduct which had a 49.9 per cent chance of causing such damage was to be

       outside the proscription‟.

In Transport Ministry v Simmonds (1973) 1 NZLR 359 McMullin J at 363 said:




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       „The Shorter Oxford English Dictionary gives one meaning of the word

       „likely‟ as being „probable‟, but it also gives as another „such as might well

       happen‟. That „likely‟ may mean something less than „probable‟ is suggested

       by the fact that very often it is accompanied by the use of „very‟, „most‟ or

       „more‟. In my view the meaning to be given to the word „likely‟ where it is

       used in a statute or regulation will depend upon the statute or regulation and

       the context in which the word is used. An event which is likely may be an

       event which is probable but it may also be an event which, while not probable,

       could well happen. But it must be more than a bare possibility‟.



In Jungarrayi and others v Olney and another (1992) 105 ALR 527 the Full Court of

the Federal Court (Northrop, Hill and O‟Loughlin JJ) considered the meaning of the

expression „it is likely‟ as used in s 50(2B) of the Aboriginal Land Rights (Northern

Territory) Act 1976 (Cth) where the Commissioner had to determine whether „it is

likely that‟ he „will find the applicants are traditional aboriginal owners‟ of land.

After quoting a portion of the passage quoted above from Deane J in Tillmann

Butcheries and referring to Sheen v Fields Pty Ltd (1984) 51 ALR 345 in which

Gibbs CJ at 348 endorsed the view of Deane J that in an appropriate context the word

likely can also refer to a real or not remote chance or possibility regardless of whether

it is less or more than 50%, their Honours said at 537:

         „The remarks by Deane J in Tillmanns’ case seem more appropriate when

       one stands back and considers the aims and objects of the Act; it is directed to

       remedying, where possible, the hardships suffered by Aboriginals through the

       loss of their lands. If, in the performance of his functions as contained in s 50

       of the Act, the Commissioner ascertains that there are traditional Aboriginal



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       owners of particular land, the aim of the legislation is to set aside that land, in

       appropriate circumstances, through the establishment of a Land Trust for the

       benefit of the relevant Aboriginals: see ss 11 and 12 of the Act. This then is a

       strong example of beneficial legislation which should be construed liberally in

       favour of the person or class of persons for whose benefit the legislation was

       enacted. It being clear from the authorities that the word „likely‟ is one that is

       capable of a number of different meanings, any consequential ambiguity

       should be resolved by a beneficial construction.

         Speaking of s 50(1)(a) of the Act Gibbs CJ, with whose judgement Brennan,

       Deane and Dawson JJ agreed, said in R v Kearney; Ex parte Jurlama (1984)

       158 CLR 426 at 433; 52 ALR 24 at 28: „If the section is ambiguous it should,

       in my opinion, be given a broad construction, so as to effectuate the beneficial

       purpose which it is intended to serve‟.‟



and at 538:

         „If a meaning is given to the word „likely‟ so that it refers „to a real or not

       remote change or possibility, regardless of whether it is less or more than

       50%‟ (Tillmans’ case at 380), that construction will be an appropriate

       beneficial construction; it will also be a construction that would better promote

       the purpose or object underlying the Act: s 15AA of the Acts Interpretation

       Act 1901 (Cth)‟



Section (3) of the Native Title Act (1993) (Cwth) identifies two of its main purposes

as (a) to provide for the recognition and protection of Native Title and (b) to establish

ways in which future dealings affecting Native Title may proceed and set standards



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for those dealings. The purpose and effect of s 237 is that future acts which fall

within it become eligible for „fast track processing‟ without any requirement to

negotiate (ss 31 and 33) (Wilcox J in Dann: Full Court). If the Tribunal determines

that the act attracts the expedited procedure, the native title party‟s right to negotiate

with a view to obtaining a s 31 agreement is lost. The „balance of probabilities‟

standard of proof would deprive the Native Title Holders of their right to negotiate

even though on the evidence there be, say, a 49%, or other substantial possibility or

probability or likelihood less than 51%, that the act will interfere or involve major

disturbance in a relevant way. In my opinion that result would be in conflict with the

objects of the Act in that whilst recognising that there may be a substantial likelihood

of such interference or major disturbance it would remove the right to negotiate. It

would set a standard for future act dealings said to attract the expedited procedure

which would not protect any likelihood of interference which, no matter how

otherwise substantial, falls below the standard of balance of probabilities.

Consequently it would not properly protect native title. The different meanings that

can be given to the word „likely‟ give rise to an ambiguity and consequently s 237

should be construed „so as to effectuate the beneficial purpose which it is intended to

serve‟. In my opinion the standard of proof which properly applies and which

promotes the objects of the Act is that found appropriate in Tillmann (supra) and

Jungarrayi (supra), the word „likely‟ to be interpreted so that „it refers to a real or not

remote chance or possibility, regardless of whether it is less or more than 50%‟. I

apply that standard in coming to my determination in this matter in respect of each of

paragraphs (a), (b) and (c) of s 237.




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FINDINGS OF FACT:

I make the following findings on the evidence.



Section 237(a):

The only community or social activities of the objectors carried out by them in the

vicinity of the tenement are those of hunting and camping as described by Mr

Northover. No specific evidence was given as to where on the tenement he and those

with whom he hunts have their camp or camps. The hunting and camping are

generally carried out in conjunction with one another as a joint activity and over the

whole of the Collie area and so well beyond the vicinity of the tenement. The

evidence reveals the hunting and camping to be a regular activity only to the extent of

approximately once a month and generally for a day or a weekend. The tenement is

but a small part of the whole area over which those activities are carried out and, on

the evidence, not a preferred area. A substantial part of the tenement is covered by a

pine plantation which „is not much good‟ except for resting in the summer in the

course of hunting. A further substantial part of it is freehold land and which is to the

north of the tenement. The main hunting area is in the vicinity of the banks of the

Wellington Dam. As Mr Northover explained, the hunters follow the river around

and set up camp north of the tenement and then go hunting through different areas

using the roads and tracks. They do not always hunt in the same area and find on

occasions that there are no kangaroos in a particular area, including the tenement. It

would appear that the kangaroos come and go to and from individual areas for

whatever reason, probably including the other activities on and in the vicinity of the

tenement. The hunting is carried out in an area extending beyond the boundaries of

the map „IRM 6‟ to the north, west and east of the tenement and south of the tenement



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beyond the Boyup Brook Road. It is carried out by shooting. The evidence identifies

features and other activities in and about the vicinity of the tenement which could well

explain why wildlife might leave the tenement and its near vicinity. I refer to the

existence of numerous roads and tracks throughout it and beyond its boundaries; to

the use of those roads and tracks by four wheel drive, tourist vehicles and logging

trucks; to tourists and others who visit the area to feed the livestock and enjoy the

views throughout the area; to the necessity for the hunters to check with CALM to

ensure there are no workers in the area; to the probable activity of logging in the area,

an inference drawn from the presence and movement of logging trucks; to the fact that

the SES conduct training exercises throughout the area. Common sense suggests that

kangaroos in the close vicinity of drilling operations might move away from the

drilling and associated activity but, on the evidence, this would be only one (though

an additional one) of a number of activities which individually or jointly at any time

would be likely to cause them to leave the vicinity. There are not always kangaroos on

the tenement or its vicinity when the hunts are conducted. There are numerous third

party activities on it and elsewhere in the general region which could cause the

kangaroos to move from place to place apart from any natural tendency to do so. The

evidence accepts that it is an incident of hunting that kangaroos may not be in any

particular area the subject of a hunt, in which case the hunters move on to continue

their hunt. They camp where they hunt. It is the community or social activity of

hunting and/or camping with which para (a) in this case is concerned.                                    As Mr

Northover said „we don‟t always go to the one bush all the time we go around because

if we go through here and there is no kangaroos like if somebody has already been

through there, we go somewhere else. We go east of Collie then‟. The evidence also

gives rise to a strong inference that the choice of where to hunt is affected to some



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degree because of the disease risk area which lays over the approximate lower half of

the tenement to the extent that it is not freehold land and which extends to the west

and south of the tenement boundaries. As Mr Northover testified it is stipulated by

CALM that they must stick mainly to the roads and cannot go too far off into the

bush, that if they did so they must walk and that is why they walk in disease risk

areas, leaving the cars somewhere safe.          Mr Northover also spoke of finding

marijuana crops when hunting in such areas his evidence however being somewhat

ambiguous as to whether that applied to the tenement.



It is interference „directly‟ with the objectors‟ activities of hunting and/or camping,

with which paragraph (a) is concerned. I have had regard to the evidence relating to

those activities, to the limited area of the tenement in the light of the overall area in

which they are carried out, to the periodic nature and generally short term of those

occasions, to the activities of others conducted on and in the vicinity of the tenement

which, it must be inferred, would interfere with the carrying on of the hunting and

camping on the tenement in that they would disturb the wildlife and in the interests of

safety, inhibit the use of firearms and, to the existence of the disease risk area and

CALM restrictions. I also take into account the evidence of Mr Mulholland as to the

purpose and nature of the proposed exploration work and the regulatory regime which

would apply to that work as identified in the Mining Act and the conditions and

statutes endorsed on the proposed licence. I find that the grant of the tenement and

the exercise of the rights it creates is not likely to interfere directly with t he

community or social activities of the persons who are the native title holders in

relation to the land or waters concerned.




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Section 273(b):

There is no evidence to justify a finding that there is any area or site of particular

significance in accordance with their traditions to the holders of native title on the

tenement or in such close proximity as to be the subject of relevant interference. That

the hairy faced snake of which Mr Northover gave evidence may have passed through

the tenement, as it is said to have done in respect of large areas of the Collie area,

gives the whole area including the tenement significance but, so far as the evidence

discloses, no „particular significance‟ in the sense of special or out of the ordinary

significance in respect of any specific part or the whole of the area of the tenement.

Mr Northover expressed evidence of concern as to waterholes, resting places,

corroboree grounds and the „Wirnot‟ area but did not identify any such as being on

the tenement. One would expect an area of „particular significance‟ to be known to

the persons to whom it has that particular significance and the more so if those

persons traditionally use the land for hunting and camping. On the evidence adduced

I find that the grant of the tenement is not likely to interfere with areas or sites of

particular significance in accordance with their traditions to the holders of native title

in relation to the lands or waters concerned



Section 237(c)

For the reasons I have advanced in respect of my findings as to paragraphs (a) and (b)

of s 237, and in particular because of the activities to which the tenement is already

subjected, the nature of the conditions and regulatory regime which would apply to

the exercise of the proposed licence if granted, the extensive area of the objectors‟

hunting and camping activities compared with the relatively small tenement area and

the nature of those activities and applying to the words „major disturbance‟ the



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meaning found in Dann: Full Court (supra) I find that the grant of the licence 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 such lands or waters.



DETERMINATION:

The Tribunal determines that the grant of Exploration Licence 70/2106 is an act

which attracts the expedited procedure.




Hon E.M. Franklyn Q.C.
Deputy President
23 June 2000




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