Bunuba Dawangarri Aboriginal Corporation RNTBC v Dreadnought (Kimberley) Pty Ltd - [2021] NNTTA 25

NATIONAL NATIVE TITLE TRIBUNAL

Bunuba Dawangarri Aboriginal Corporation RNTBC v Dreadnought (Kimberley) Pty Ltd and Another [2021] NNTTA 25 (8 June 2021)

Application No:

WO2019/0445

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2012/006 & WCD2015/009)

(native title party)

- and -

Dreadnought (Kimberley) Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Nerida Cooley, Member
Place:	Brisbane
Date:	8 June 2021

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237
Cases:	Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 Bunuba Dawangarri Aboriginal Corporation RNTBC v Buxton Resources Limited & Another [2019] NNTTA 72 (Bunuba v Buxton) Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL, [2009] NNTTA 109 (Bunuba v Black Mountain Gold) Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey [2010] NNTTA 89 (Bunuba v Duffield) Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/WesternAustralia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21 (Bunuba v Monte Ling 2007) Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa, [2008] NNTTA 127 (Bunuba v Monte Ling 2008) Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (Dann v Western Australia) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (Hale) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (Bunuba v Mings) Little v Oriole Resources Pty Ltd [2005] FCA 506 (Little v Oriole Resources) Wurrunmurra v State of Western Australia [2012] FCA 1399 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Shirley Purdie & Others on behalf of Yurriyangem Taam v Peter Romeo Gianni & Another [2020] NNTTA 43 (Yurriyangem Taam v Gianni)
Representative of the native title party:	Carolyn Ryland, Kimberley Land Council

Representative of the grantee party:

Claire McGowan, Mining Access Legal

Representatives of the Government party:

Shelley Moore, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Introduction

This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E04/2574 (licence) to Dreadnought (Kimberley) Pty Ltd (Dreadnought) (formerly Ironringer (Tarraji) Pty Ltd).
In accordance with s 29 of the NTA, the State of Western Australia (State), acting through the Department of Mines, Industry Regulation and Safety (DMIRS) gave notice that the licence may be granted, specifying the notification day of 8 February 2019. The notice included a statement that DMIRS considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under

s 31(1)(b) of the NTA.
Bunuba Dawangarri Aboriginal Corporation RNTBC (Bunuba) holds native title in trust on behalf of the Bunuba People over the whole of the licence area (see Wurrunmurra v State of Western Australia and Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia). On 7 June 2019, Bunuba lodged an objection against the inclusion of the expedited procedure statement (s 32(3) NTA).
As a result of Bunuba’s objection, the Tribunal is required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed to constitute the Tribunal for that purpose. For the reasons outlined below, I have concluded that the expedited procedure does not apply, such that the parties are required to negotiate in good faith in accordance with

s 31(1)(b) of the NTA.

Determination on the papers

In accordance with the Tribunal’s directions, the State provided contentions and evidence including mapping, a Tengraph Quick Appraisal, searches of the Aboriginal Heritage Inquiry System (AHIS search), a copy of the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Dreadnought provided contentions and an affidavit of its managing director, Mr Dean Tuck, affirmed 10 December 2020.
Bunuba has provided contentions and a reply, but no evidence. Instead, it contends (at 6) that I should adopt the findings in two previous determinations by the Tribunal, being Bunuba v Monte Ling 2008 (which it refers to as Bunuba v Monte) regarding E04/1600 and Bunuba v Black Mountain Gold regarding E04/1712 (collectively Previous Determinations).
According to the Quick Appraisal, each of those tenement applications overlapped the licence by 10% and each was withdrawn prior to grant. Both the State and Dreadnought have provided mapping which shows the areas subject to the Previous Determinations on the northern and eastern sides of the licence area.
Having considered the material provided, I am satisfied that the matter can be adequately determined without a hearing as permitted by s 151(2) of the NTA.

Issues for the inquiry

Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The accepted approach to s 237 is summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is to undertake a predictive assessment by considering what is likely (in the sense of a real, not remote, chance) to occur as a result of the grant of the licence. Dreadnought’s intentions may be relevant to that assessment.

The licence and Dreadnought’s proposed exploration activities

It is useful at the outset to outline information about the licence which is relevant to my consideration of each limb of s 237.
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The Tengraph Quick Appraisal provided by the State reveals that:
(a)the licence area is 13,078.90 hectares; and
(b)the underlying land tenure is primarily pastoral lease (81.57%) together with “A” Class Conservation Park reserve (12.13%), road reserve (0.3%) and unallocated crown land (6%).
The conservation park is referred to in the evidence as the King Leopold Ranges Conservation Park. However, I understand that the relevant portion of the conservation park is now known as Miluwundi Conservation Park (see >
Condition 6 of the State’s proposed conditions for the licences would require Dreadnought to obtain Ministerial consent before commencing any activities in either the conservation park reserve or the road reserve. Further details of the process for securing consent in accordance with the Mining Act are set out in the State’s contentions at 9-12. Annexure DT-8 to Mr Tuck’s affidavit is correspondence from DMIRS to Dreadnought dated 29 January 2019 regarding the proposed condition, although I note it refers only to the conservation park reserve.
According to the s 58 statement Dreadnought considers the licence area highly prospective for gold and base metals. It outlines a proposed exploration program involving “a thorough investigation of all historic exploration with follow up field checking and sampling” and states that “[d]rilling of anomalies would follow”. The estimated yearly expenditure is $40,000.
Mr Tuck’s affidavit provides additional details about Dreadnought’s proposed activities as follows:
39. The Grantee Party plans to complete a staged exploration program within the Tenement Area.
40. Exploration work will follow a strategic progression of activities to build an understanding of the nickel-copper-gold deposit and ultimately define a potential mineral resource.
41. Initial stages of exploration are likely to be campaign based with the Grantee Party's personnel active in the field for between 10-20 days.
42. The Grantee Party intends that the initial first stage exploration activities will have minimal ground disturbance, and will consist of:
(a)reconnaissance: field reconnaissance of access tracks by helicopter and/or fourwheel drive vehicles, to familiarise the Grantee Party's personnel with the landscape and more precisely plan further work. This allows for scouting of potential camp locations and considerations for supply logistics (water, diesel, food etc);
(b)stream sediment/ soil sampling: shallow soil sampling will occur throughout the Proposed Tenement using a geo pick to accurately characterise mineral concentrations and geological properties in the near surface; and
(c) non-invasive geophysical investigation: utilising an array of geophysical techniques to "look deeper" into the ground, with the intention of efficiently and effectively characterising the depth and extent of potential mineralisation. Geophysical investigative techniques such as passive seismic and gravity are all non-invasive exploration activities.
43. Pending the outcomes of the initial exploration activities further second stage exploration may include drilling: the preferred method of exploration would be to drill, likely RC or diamond core within targeted areas of the Proposed Tenement.
44. The number of people involved in these stages of the exploration program would be approximately five, depending on the details of the program. This would typically include one to two geologists and up to three support crew.
45. The Grantee Party is aware of, and intends to fully comply with, its obligations under the AHA.
46. Aboriginal heritage clearance surveys will be undertaken in consultation with appropriate Traditional knowledge holders and sites requiring protection will be identified on the ground with the locations included on site plans.
47. The Grantee Party's staff and contractors will undergo cultural awareness training as required and the Grantee Party's site induction will address the management of heritage sites and related matters in the field.
48. The Grantee Party's objective is to ensure exploration activities on the Proposed Tenement do not adversely impact Aboriginal cultural heritage sites.

Predictive assessment for s 237(a): is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?

Bunuba asserts that the grant of the licence will directly interfere with the carrying on of community and social activities by Bunuba. As already noted, it relies solely on the Previous Determinations and submits that I should adopt the findings in those matters.
However, as Dreadnought and the State point out, the Tribunal was not satisfied in either of the Previous Determinations that the grant of the relevant tenements was likely to interfere directly with Bunuba’s community and social activities.
Bunuba has not specifically addressed that point in its reply but it does respond to the State’s contentions at 25-29 regarding the insufficiency of evidence with respect to Bunuba’s community or social activities. In that respect, Bunuba says that the Previous Determinations provide “sufficient information about the specific social and community activities carried out by Bunuba in the licence area” (reply at 6). No other specific contentions regarding the application of s 237(a) are put by Bunuba.
In Bunuba v Monte Ling 2008, Bunuba relied on affidavit evidence from Mr Kevin Dann and Mr Paddy Neowarra dating from 2008. The evidence, as set out at paragraph [29] of that decision, outlined community and social activities carried on in the tenement area, including hunting, fishing, collecting bush medicine and making spears. In Bunuba v Black Mountain Gold at [29] there was evidence from Mr George Brooking Manjanjirr of Bunuba’s continued access to the tenement area to hunt, fish, and collect bush tucker and bush medicines.
Dreadnought (at 17) disputes the relevance of the Previous Determinations to this inquiry but notes in any event their age, the relatively small overlap (10%) in each case and that they concerned unrelated projects and proponents.
None of those issues are addressed by Bunuba. The evidence provided in the Previous Determinations as described above was uncontested. However, there is no evidence regarding the extent to which the activities described in the Previous Determinations continue to be carried out in the licence area.
Bunuba relies on the fact that it holds both exclusive and non-exclusive native title in the licence area but that does not address the extent of activities carried out on the licence area, which is necessary to consider the likelihood of direct interference.
Further, even if I were to assume that all of the activities outlined in the Previous Determinations continue to be undertaken today, Bunuba has not explained why it says interference is likely here, when it wasn’t in the Previous Determinations upon which it relies.
Accordingly, I am not satisfied that the grant of the licence is likely to cause direct interference within the meaning of s 237(a).

Predictive assessment for s 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?

As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
According to the AHIS search there are no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (AHA) in the licence area. However, an area or site need not be registered to be of particular significance for s 237(b) of the NTA.

What areas or sites of significance area identified by Bunuba?

In the Previous Determinations, the Tribunal found that there were areas or sites of particular significance to Bunuba in the area of the relevant tenements and determined that the grant of those tenements was likely to interfere with those areas or sites.
Bunuba argues that the Tribunal should adopt those findings of particular significance here and also relies on comments in Bunuba v Black Mountain at [40] regarding the area being “site rich”. In Yurriyangem Taam v Gianni at [14]-[15] I commented on the potential utility in parties and the Tribunal relying on evidence and findings from earlier decisions where the same sites or areas are being considered. Those comments are equally applicable in this matter. At [38], I also highlighted the difficulties which can arise in relying on earlier evidence or findings without further explanation of its relevance.
Dreadnought (at 33) acknowledges the findings in the Previous Determinations but notes the relatively small overlap between the licence and the tenements considered in those cases. It also argues that it is not possible to deduce whether any of the areas or sites concerned are located in the licence area. However, as I will outline, that is not the case in relation to all of the areas or sites listed. The State makes similar observations at 37–40 of its contentions.
Bunuba addresses these points in its reply and refers in more detail to each of the areas or sites discussed below.
Before I turn to consider the individual areas or sites raised by Bunuba, it is worth noting that there are a number of other Tribunal determinations in the vicinity of the licence which also mention some of the areas or sites discussed below. These are Bunuba v Monte Ling 2007, Bunuba v Duffield, Bunuba v Mings and Bunuba v Buxton. While the tenement applications considered in these decisions do not overlap the licence area, they are in close proximity and, in the case of Bunuba v Monte Ling 2007, Bunuba v Mings and Bunuba v Buxton, overlap the area of E04/1712 in issue in Bunuba v Black Mountain Gold.
In considering whether any of the particular areas or sites relied on by Bunuba are located in the licence area, the analysis in these decisions assists. Member Shurven’s overview of the areas or sites in Bunuba v Mings at [49]–[62] is particularly useful as it takes account of the evidence in Bunuba v Monte Ling 2007, Bunuba v Black Mountain Gold and Bunuba v Duffield.

Gunbi

In Bunuba v Black Mountain Gold, Mr Brooking described Gunbi as an area around Mt Broome including the tenement area (being the application for E04/1712). At [33] the Tribunal adopted an earlier finding (from Bunuba v Monte Ling 2007) that Gunbi was a site of particular significance to Bunuba. In that earlier case, Gunbi was described as an important ngarranggarni (dreaming) place in the vicinity of Mt Broome which extended into the relevant tenement areas (being E04/1503 and E04/1504).
The Tribunal in Bunuba v Black Mountain Gold was satisfied that “there is an area described as Gunbi which extends to the south and west of Mt Broome and takes in substantial parts of [E04/1712]”. This conclusion was based on the evidence provided in each of those cases, with the Tribunal observing that the northern part of E04/1712 was located slightly to the west of E04/1503 and E04/1504.
It is accepted by Bunuba that Mt Broome is located outside the licence area (reply at 22), although it is to the east of the licence not the west as stated by Bunuba. The map at Annexure 6 to the State’s contentions and Annexure DT-12 to Mr Tuck’s affidavit show the location of Mt Broome to the east of the licence as well as the extent of overlap between the northern part of E04/1712 (misdescribed on the State’s map as E04/1600) and the licence.
The mapping shows that two separate sections of the northern part of E04/1712 overlap the licence. However, it also appears that directly west of Mt Broome there is no overlap between the two. As noted, the Tribunal in Bunuba v Black Mountain Gold was satisfied that Gunbi took in “substantial parts” of E04/1712, but not the whole.
Given the extent of the finding in Bunuba v Black Mountain Gold, the location of the overlap between the licence and E04/1712 and the distance from the licence area to Mt Broome, it is by no means clear that Gunbi extends into the licence area. In Bunuba v Black Mountain Gold, the Tribunal had the benefit of evidence which located Gunbi within the relevant tenement area. The Tribunal also took account of the consistency between Mr Brooking’s evidence and the evidence in Bunuba v Monte Ling 2007.

In Bunuba v Mings at [53] the Tribunal found that Gunbi comprises an area extending from Richenda Gorge, west in the vicinity of Richenda River; and north towards (and including Mt Broome). Member Shurven accepted that part of Gunbi extended into the relevant tenement (being E04/2327) “especially in light of Mr Brooking’s evidence that the area ‘goes up to Turtle Hole’”, which Member Shurven accepted was located within E04/2327. The State’s mapping shows Richenda Gorge to the south of Mt Broome and Richenda River to the west of the gorge. Each of those areas and E04/2327 is outside the licence area.
In this case I do not have the benefit of specific evidence locating Gunbi in relation to the licence area. While I can adopt the finding that Gunbi is an area or site of particular significance to Bunuba, I am not satisfied, having regard to the various descriptions and previous findings by the Tribunal that it extends into the licence area.

Mount Broome

Bunuba argues that the Tribunal found Mt Broome to be a site of particular significance in the Previous Determinations. While it says Mt Broome is “about 10 kilometres” from the licence, it argues interference is likely, for example, if Dreadnought accesses the licence by driving through the area (reply at 29).
There is a range of evidence regarding Mt Broome in the various determinations mentioned above. Mr Brooking’s evidence in Bunuba v Black Mountain Gold described Mt Broome as “a very important place” and stated “there are old people buried in the rock in around Mount Broome”. Apart from the specific evidence regarding Mt Broome, it clearly has significance as part of Gunbi. In Bunuba v Mings, Member Shurven inferred at [63] “that the ‘Mt Broome’ area is coextensive with Gunbi”.
There may be circumstances where the grant of a tenement gives rise to interference with an area or site of particular significance located outside the tenement area (see discussion in Yindjibarndi v FMG at [17]). However, there is no evidence to suggest that is likely here. The mapping shows a road reserve through the licence area and there is nothing in the material to suggest that Dreadnought proposes to conduct any activities, by way of access or otherwise, in the vicinity of Mt Broome.
On the material before me, there is no basis to conclude that the grant of the licence is likely to interfere with Mt Broome.

Wungamil

In Bunuba v Monte Ling 2008, the Tribunal was satisfied based on the evidence that the whole of the area of E04/1600 is an area of particular significance to the native title party (being the former registered native title claimant for the Bunuba native title claim group) in accordance with its traditions, and contained restricted sites, also of particular significance.
In particular, the Tribunal found at [43] that the evidence established that:
·     The area of the proposed licence is called Wungamil land “a special area that only traditional owners can go to. You need permission to get there” (Affidavit of Mr Dann para 13 and Mr Neowarra para 13)
·     Within Wungamil land there are “places that people cannot go to because they are too important.... If someone went there without talking to the right people it could stir up big trouble.” (Affidavit of Mr Dann para 13 and Mr Neowarra para 13)
·     The area of the proposed licence contains spearheads made by old people, some in particular located “all along the river there” containing “the memory of old people in some of those spears. We need to leave the old spearheads where they are” and “they need to stay there” (Affidavit of Mr Dann para 10 and Mr Neowarra paras 12 and 15).
The evidence in Bunuba v Monte Ling 2008 related to the whole of E04/1600 although the Tribunal said it was only required to consider what it described as ‘the subject area’, being the 5.6% of E04/1600 which, at the time was subject to the Bunuba native title determination application (WAD6133/1998). At [44] the Tribunal stated it was satisfied that the area of particular significance to Bunuba included the ‘subject area’.
It is relevant to note that the determination in Bunuba v Monte Ling 2008 was made prior to the Federal Court’s decision in Hale which confirmed at [119] that the Tribunal’s inquiry concerns the whole of the area of the relevant tenement application. See also discussion in Bunuba v Mings at [30]-[32].
In any event, the ‘subject area’ described by the Tribunal appears to include the area of overlap with the licence presently under consideration.
The State (contentions at 40) acknowledges the Tribunal’s previous finding in relation to the area of E04/1600, which includes the area of overlap with the licence shown on the mapping.
While Dreadnought’s contention discussed at [32] above may be broadly correct with respect to a number of the sites or areas identified, it is not true for Wungamil which the Tribunal was satisfied included the whole of E04/1600 and, consequently, the area of overlap with the licence.
On the material before me there is no reason to depart from the Tribunal’s earlier findings with respect to Wungamil which I adopt in relation to the area of overlap between E04/1600 and the licence.

Broome Creek

Bunuba notes that in Bunuba v Monte Ling 2008 at [44], the Tribunal concluded that Broome Creek is an area or site of particular significance to Bunuba.
The Tribunal’s consideration of Broome Creek in that case was part of its analysis regarding Wungamil, discussed above. The Tribunal inferred that references to spearheads made by old people “all along the river” (see above at [48]) included the ‘subject area’ because of the location of Broome Creek which it said was a well identified tributary of the Lennard River.
The mapping clearly shows Broome Creek in the licence area, including partly within the area of overlap with E04/1600.
I have already adopted the Tribunal’s findings in relation to Wungamil, which included consideration of part of Broome Creek. As for the balance of Broome Creek that runs through the licence, none of the Previous Determinations relate to this portion of the creek and, given the significance of the sites along Broome Creek appears tied to Wungamil, I am not satisfied the previous findings can be applied to the entire length of the creek.

Living Water, Turtle Hole, Culloden, Old Law Grounds, Ngarranggarni

Each of these sites is mentioned in Bunuba v Black Mountain Gold at [33] and Bunuba argues they are either within or in close proximity to the licence area.
Bunuba accepts that the Old Law Grounds and the Living Water are not located within the licence area but says it is not necessary for a site to be located within the licence for a finding under s 237(b) to be made (reply at 46).
In relation to Turtle Hole and the Ngarranggarni areas, Bunuba contends that I should conclude they are in close proximity to the licence area (reply at 47) and therefore that interference is likely. As noted above, Member Shurven found in Bunuba v Mings that Turtle Hole was located within the area of E04/2327, which would place it outside the licence area.
However, similar to the conclusion reached for Mt Broome, there is no basis to conclude that the grant of the licence is likely to interfere with any of these areas or sites outside the licence area.
In relation to culloden, Deputy President Sumner in Bunuba v Black Mountain Gold found at [33]:
The presence of culloden, dead people, bones and heads along the Leopold Range and Fitzroy River to Mount Broome which are considered very important sites. The remains are of ‘all those who were massacred over many years of fighting’ (GB affidavit para 15). In this case Mr Brooking is describing an area that extends for over 100 kilometres and his evidence is not very specific as to the location of these human remains on the proposed area. Nevertheless, the proposed licence area is encompassed within the general area described by Mr Brooking and the northern part of it covers part of Leopold Range. It is probable, at least, that some of these human remains sites exist within the proposed licence area. I have no doubt that they are sites of particular significance to the native title party.
In Bunuba v Mings at [61] where the northernmost part of E04/2327 overlapped E04/1712 considered in Bunuba v Black Mountain Gold, Member Shurven adopted that finding and was satisfied that burial sites of particular significance to Bunuba People were likely to be situated on E04/2327.
Similarly, in this matter, the licence overlaps the northern part of E04/1712 considered in Bunuba v Black Mountain Gold (and also extends further north again into the conservation park). Accordingly, I also adopt the finding in Bunuba v Black Mountain Gold here.

Is the grant of the licence likely to interfere with the areas or sites of particular significance?

In each of the Previous Determinations and the other nearby decisions mentioned above, the Tribunal was satisfied that interference within the meaning of s 237(b) was likely.
In this case the sites or areas I have found to be of particular significance are Wungamil (which includes part of Broome Creek) and burial sites.
Dreadnought contends that if, as I have found, there are areas or sites of particular significance in the licence area, then interference is not likely for a range of reasons namely:
(a)the limited nature of its proposed activities;
(b)the regulatory regime;
(c)its demonstrated history of successful engagement with native title parties for the protection of Aboriginal cultural heritage;
(d)its intention to conduct surveys; and
(e)its offer to enter into an appropriate heritage protection agreement.
Dreadnought also argues that it is highly likely that any areas of particular significance have been subject to previous disturbance through historical tenements. Mr Tuck’s affidavit includes evidence regarding these historical tenements and reported exploration expenditure (Tuck affidavit at 28-38). However, there is no evidence of the nature of the activities undertaken under these grants. Even assuming there was some form of on-ground exploration work carried out, there is nothing in the material that suggests these prior activities occurred exactly in the areas of concern here, or that, if they did, that makes interference now any less likely. That is particularly so for an area such as Wungamil.
In relation to Wungamil, the State points out that the Tribunal’s finding of likely interference in Bunuba v Monte Ling 2008 relied particularly on the grantee party’s intention not to conduct a heritage survey, which is not the case here. Certainly the grantee party’s intentions were a key factor in that case, although I note that the grantee party did propose to undertake a heritage survey for what was termed ‘Stage 3 exploration’ involving ground disturbing activities using drilling rigs and costeans.
In reply Bunuba says that, to the contrary, there is heightened risk because Dreadnought sought to expedite the inquiry rather than negotiate. However, that is not an accurate assessment of this matter. This objection was lodged prior to the Tribunal’s current practice of issuing directions as a matter of course and the Tribunal’s records indicate that the parties were in negotiation for close to a year (including a period when the Tribunal was not issuing directions due to the impact of COVID-19) before directions were made in October 2020. Despite that considerable period it appeared, at the time directions were made, that the parties were still some way apart from an agreement. There is nothing in the material to suggest the parties have continued negotiating in parallel to the inquiry process, although it would have been open to them to do so. Mr Tuck deposes at 53 that Dreadnought is ready willing and able to negotiate the finalisation of an appropriate heritage agreement.
Mr Tuck (at 25-27) also describes Dreadnought’s engagement with another Aboriginal Corporation in the West Kimberley by way of evidence that it has a history of positive engagement with native title parties in the area. Mr Tuck says that Dreadnought worked closely with the relevant Aboriginal Corporation “in exploring on their country whilst ensuring no disturbance to any area or importance and, in all areas, keeping disturbances to a minimum”. He cites examples of the work undertaken including multiple heritage surveys, avoiding airborne surveys over significant areas and removing and relocating a significant site. None of this evidence is disputed but clearly reflects solutions reached by consultation and agreement with that party.
While I do not agree with Bunuba’s characterisation of the negotiations in this matter and I can accept Dreadnought may wish to reach agreement and have a history of doing so, the inability of the parties to resolve an agreement in this matter over the course of nearly a year illustrates that good intentions alone are not always sufficient.
Similarly, there is very little information provided about Dreadnought’s proposed heritage surveys and when they would be conducted or how they would be conducted in the absence of agreement with Bunuba. For example, it is not apparent whether a survey would be undertaken prior to any entry on the licence area, given entry into restricted areas may amount to interference. For this reason also, characterisation of exploration activities as ‘limited’ or ‘minimal’ does not assist.
In terms of the regulatory regime and the State’s proposed conditions and endorsements, condition 6 which would require Dreadnought to obtain Ministerial consent prior to conducting any exploration activities in the reserves areas may mitigate the likelihood of interference in those areas. This may be relevant for any burial sites in the conservation park, although there is no requirement for consultation with Bunuba before Ministerial consent is given. However, I am not satisfied the sites are wholly within the area of the conservation park and I do not consider that the regulatory regime overall is adequate to mitigate the risk of interference given the size and restricted nature of Wungamil, the area likely to contain burial sites and the sensitive nature of those sites. In such circumstances, the risk of interference is heightened.
As already noted, Bunuba also relies on previous descriptions of the area in and around the licence as ‘site rich’, a description which is not always helpful. I agree with Member Shurven’s comments regarding that term in Bunuba v Mings at [81]. Having said that, it is apparent from the decisions outlined above including the Previous Determinations that there is a large number of sites and areas in close proximity which are of particular significance to Bunuba People. In that context, the Tribunal’s comments in Bunuba v Black Mountain Gold at [40] resonate here.
In all of the circumstances, I conclude there is a real risk of interference with areas or sites of particular significance to Bunuba, namely Wungamil and burial sites.

Predictive assessment for s 237(c): is the grant of the licence likely to cause major disturbance?

Considering whether the grant of the licence is likely to involve major disturbance as contemplated by s 237(c) requires an evaluative judgment as to whether there is a real risk of major disturbance from the grant of the licence. In this context ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is also nothing to preclude Bunuba repeating here matters already considered in relation to s 237(a) and (b) (see Little v Oriole Resources at [53]-[54]; Dann v Western Australia at 401 and 413)
In its contentions at 4, Bunuba asserts that “any exploration and/or earthworks” within the licence area are seen by Bunuba as creating a real risk of major disturbance in accordance with s 237(c). No elaboration is given and no further contentions are made in reply, once Bunuba had the benefit of Mr Tuck’s evidence.
I also note that no findings regarding s 237(c) were made in the Previous Determinations on which Bunuba relies, nor does it appear that Bunuba asserted such disturbance in any of the earlier decisions mentioned above.
On the material provided I do not find major disturbance under 237(c) to be likely.

Determination

I determine that the grant of exploration licence E04/2574 is not an act attracting the expedited procedure.

Nerida Cooley
Member
8 June 2021