The question in this case was whether the expedited procedure set out in s 237 of the Native Title Act 1993 (Cth) (NTA) applied to the proposed grant of a prospecting license. The proposed licence area was approximately 1.2km2 in size and north of Edjudina in the Menzies Shire, WA. It fell within an area where the Nyalpa Pirniku Claim Group claimed native title rights and interests. The area included a site registered under the Aboriginal Heritage Inquiry System as a mythological site, male restricted, and boundary restricted (Lake Raeside). The proposed license was to be granted to Vaso Kos by the Western Australian government. The State considered the grant to be an act attracting the expedited procedure. Section 237 of the NTA allows for an expedited process where an act is not likely to interfere significantly with claim group activities or sites of significance.
Submissions
The State submitted that it was an act attracting the expedited procedure because it would not interfere directly with community of social activities carries on by members of the native title claim groups, interfere with sites of particular significance according to traditions of the native title claimants, nor would it involve major disturbance to land and water.
The Claim Group submitted that if the proposed licence were granted it was reasonably likely that the Grantee PArty would conduct exploration activities that would physically disturb the land at and around Lake Raeside, such as drilling holes, constructing surface pads and extracting up to 500 tonnes of materal.
Decision
The Tribunal found that there was insufficient evidence in relation to community and social activities specifically related to the licence to conclude that the proposed prospecting activities were likely to interfere with such community and social activities. However, going to the second limb of the test (sites of significance), the Tribunal accepted that Lake Raeside was ‘so sensitive that even such activity as prospecting with a detector and driving over the area would be sufficient to cause interference for the purposes of s 237(b)’. On this basis, the Tribunal held that the act did not attract the expedited procedure under s 237 of the NTA.