Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd
[2018] NNTTA 76
•12 December 2018
NATIONAL NATIVE TITLE TRIBUNAL
Bunuba Dawangarri Aboriginal Corporation RNTBC v Elderberry Resources Pty Ltd and Another [2018] NNTTA 76 (12 December 2018)
Application No: | WO2017/0724 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Bunuba Dawangarri Aboriginal Corporation RNTBC (WCD2015/009)
(native title party)
- and -
Elderberry Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 12 December 2018 |
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 – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) s 237 |
Cases: | Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory(2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC v Investmet Limited and Others and Another[2018] NNTTA 47 (‘Wanjina-Wunggurr v Investmet Limited’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives(s) of the native title party: | Ania Maszkowski & Ash Mumford, Kimberley Land Council |
| Representative(s) of the grantee party: | Christopher Piggott, Elderberry Resources Pty Ltd |
| Representatives(s) of the Government party: | Bethany Conway and Michael McMahon, Department of Mines, Industry Regulation and Safety Emily O’Keeffe, State Solicitors Office |
REASONS FOR DETERMINATION
Introduction and background
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E04/2487 (the licence). On 28 September 2017, the State of Western Australia (‘the State’) gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant the licence to Elderberry Resources Pty Ltd (Elderberry). The notice indicated the State of Western Australia considers the grant of the licence is an act attracting the expedited procedure.
The licence covers approximately 75.13 square kilometres and is located 107 kilometres north-west of Fitzroy Crossing. The licence sits wholly within the combined Bunuba determination area (comprising the determined claims of Bunuba, Bunuba People #2 Part A, and Bunuba #3).
The native title rights and interests of the Bunuba native title holders are held on trust by Bunuba Dawangarri Aboriginal Corporation Registered Native Title Body Corporate (BDAC). Accordingly, BDAC is the native title party in this matter. BDAC has been determined by the Federal Court to hold exclusive and non-exclusive native title rights and interests in the area of the determination which overlaps the proposed licence. There is also a portion of the licence where it has been determined native title does not exist. BDAC exercised its right to lodge an objection with the National Native Title Tribunal (Tribunal) against the State’s assertion that the expedited procedure applies. BDAC asserts the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
BDAC has not provided contentions or evidence in relation to s 237(c). As stated in Ward v Western Australia (at [26]), ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Due to the limited evidence provided on this criteria, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned. Accordingly, I focus my inquiry on the questions listed at (a) and (b) above.
For the reasons outlined below, my decision is that the expedited procedure does not apply to the grant of the licence and the normal negotiation procedure under s 31 of the Act is required. That is, the State and Elderberry must negotiate in good faith in accordance with s 31, with BDAC, with a view to reaching agreement about the grant of the licence.
Preliminary matters
All parties provided contentions and evidence in this matter. Parties also lodged with the Tribunal a statement, signed by all parties, which outlined the various facts and issues that were agreed between parties and those that were in dispute (the agreed statement).
BDAC’s supporting evidence comprises the joint affidavit of Mr Danny Marr and Ms Elaine Marr. In their affidavit, Mr and Ms Marr outline they are both senior Bunuba Traditional Owners and have authority to speak for the area of the licence. I accept Mr and Ms Marr have authority to speak for the licence area.
In submitting the agreed statement, parties confirmed they were content for me to proceed on the papers. Based on the material before me, I am satisfied the matter can be determined on the papers without the need for a hearing.
(a) Is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?
In the context of s 237(a), I am required to consider only those community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). BDAC’s non-exclusive determined native title rights and interests, as recorded on the National Native Title Register, include rights to: access, move freely, live, camp and erect shelters and other structures; hunt, gather, fish, take and use flora and fauna; take use, share and exchange natural resources including water; engage in cultural activities including the transmission of cultural heritage knowledge; conduct and participate in ceremonies including burials; and visit, maintain and protect places and sites of importance from physical harm. BDAC’s exclusive determined rights and interests include the right to: possession, occupation, use and enjoyment to the exclusion of all others; the right to use and enjoy waters, including the right to hunt and fish.
To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What community or social activities do Bunuba undertake on the licence?
BDAC’s contentions state the community and social activities undertaken by Bunuba on the licence include conducting ceremonies, camping, hunting, protecting important places and intergenerational teaching. Contentions state the natural features of the licence area, such as the creek that runs through it, make it particularly suitable for carrying out these activities.
The State and Elderberry are in agreement with BDAC that the licence area was used by Bunuba people to conduct intergenerational teaching and to protect important places. The State’s contentions argued the evidence did not support a finding that ceremonial, camping and hunting activities are presently carried out in the area. The State contends, alternatively, it can be inferred these activities are not carried out at a frequency that would be affected by the grant of the licence.
Mr and Ms Marr provide some details of the historical use of the area, stating:
Our old people used to use the Tenement Areas all the time. They would stay there to practice ceremony, and to record important stories on the rock walls. ... Our old people used to travel and walk all through the Tenement Area. The old people would camp and go hunting. It is good for camping because there is a creek running through it – all that area near Windjana Gorge.
The affidavit also describes contemporary use of the area, stating:
These days, Bunuba native title holders still go to the Tenement Area frequently. Our Bunuba rangers go to the Tenement Area all the time, they go there to look after the land. …Danny’s daughters Danielle, Emmy-Lou and Samantha, and Danny and Elaine’s nephew Kieran are all rangers who are learning about the Tenement Area – they are learning about that place more and more all the time, so they can take care of it one day – to visit painting and checks on important sites inside the Tenement Area. Kieran and Samantha are sitting with us now while we tell our story to the lawyer.
The affidavit states when Bunuba people travel to the licence area they do so by car, accessing the licence from different tracks depending on where they want to go. Annexed to the affidavit is a map of the licence area (map annexure) on which the deponents have marked two different access tracks used by Bunuba people.
The affidavit states Bunuba people travel to the licence area to ‘take care of important cultural sites’ including Ngarranggani [dreaming] tracks, Ngarranggani stories, and ‘places, paintings and burial sites’. The affidavit states Bunuba people use the area to teach young people important skills and cultural knowledge:
When we go out there we take kids with us. We tell them stories, and we tell them where they can and cannot go. There are some areas inside the Tenement Area that have gender restrictions. Places where women cannot go. … This is a very important thing for our young people to understand, it the main thing about that area – understanding where they can and cannot go.
I am satisfied the area of the licence is used regularly by Bunuba people to conduct intergenerational teaching and to protect important places. The evidence does not support a finding the area is currently used for hunting.
Although it has not been deposed to in any great detail, I can infer the area is still used by Bunuba people for camping. The affidavit states Bunuba native title holders, and specifically Bunuba rangers, go to the licence area ‘all the time’. Although some statements in the affidavit are about historical camping in the area, it also states: ‘It is good camping [in the licence area] because there is a creek running through it’, implying it is still used today. As outlined in the BDAC reply, protection of places and teaching is conducted by the Bunuba community and not just the ranger program. I also note the community in which Mr and Ms Marr reside is approximately 100 kilometres away.
What activities does Elderberry intend to undertake on the licence?
Elderberry’s contentions state the licence area is considered prospective for Proterozoic nickel sulphides. The exploration strategy and proposed work program it provided to the Department of Mines, Industry Regulation and Safety (DMIRS) includes the below information:
Year 1
· Open file review and compilation of historic data;
· Drill-ready target generation and ranking; and
· Surface sampling, field mapping and field verification of historic targets/prospects.
Year 2
· Collecting of geochemical data through auger, soils and rock chip sampling.
Year 3
· Pre drilling work, including heritage surveys, appropriate notification to stakeholders, clearing of access tracks and drill pads; and
· RC [reverse circulation]/Aircore/RAB [rotary air blast] drilling over several targets hopefully returning economic intercepts of gold and/or base metals.
The quick appraisal document provided by DMIRS shows that 24.2 percent of the licence area covers Windjana Gorge National Park Reserve. I note the State’s proposed conditions on the grant of the licence includes two conditions requiring the prior written consent of the relevant Minister before entering and/or commencing exploration activity on approximately 30 per cent of the licence, including some road reserves, a proposed conservation park and Windjana Gorge National Park Reserve 31107.
In its contentions, Elderberry states exploration within Windjana Gorge National Park ‘is extremely unlikely’ and that ‘seeking permission to conduct exploration within national parks is a difficult, long and expensive process – this is not a path Elderberry Resources is intending to go down.’
Citing Wanjina-Wunggurr v Investmet Limited (at [10]), BDAC argues, regardless of Elderberry’s intentions, the Tribunal’s inquiry is in relation to the entire area specified in the s 29 notice. BDAC states, should the licence be granted, Elderberry is free to take any further necessary steps in order to undertake exploration in the national park, despite any assurances it gives.
BDAC is correct in its contention that my determination must have regard to the entire licence area. However, this is not to say evidence of Elderberry’s intentions are irrelevant. My task in this inquiry is to make a predictive assessment. Evidence of intention is relevant to the question of likelihood (Silver v Northern Territory at [25]-[32]). The weight to be given to any evidence of intention will depend on the facts of the case. In this matter, Elderberry has not simply stated it is unlikely it will conduct exploration within the national park, but has provided a credible reason why it is unlikely to exercise this option. In considering Elderberry’s stated intentions, and the relevant condition proposed by the State, I am satisfied exploration within the area covered by Windjana Gorge National Park Reserve is unlikely.
(iii) Is the grant of the licence likely to interfere directly with Bunuba’s community or social activities?
Based on the evidence contained in the affidavit, I accept the area of the licence is used by Bunuba people for intergenerational teaching, to protect important places, and for camping. Having established these activities take place on the licence, I must determine the likelihood of any interference with community and social activities being substantial rather than trivial (Silver v Northern Territory at [57]). As noted in Silver v Northern Territory, ‘the analysis is contextual, and not considered in isolation. In assessing the risk of interference the Tribunal is entitled to have regard to other factors’ (at [49]).
BDAC argues, should Elderberry be granted access to the licence area to conduct exploration activities without consulting the native title holders, its community and social activities are likely to be interfered with. In response, the State argues there is a lack of evidence to demonstrate how the grant of the licence would interfere with these activities.
In its contentions, Elderberry states it does not intend to limit access to the area for the purposes of camping, teaching or visiting sites and important places. Elderberry also notes that exploration in northern Western Australia is seasonal and typically occurs during the dry season between April and October. It states, for this reason, it is likely there will be no one from Elderberry accessing the area during the wet season.
While it is possible Bunuba’s community or social activities may be subject to some disturbance if they are utilising the same area of the licence at the same time as Elderberry, there is insufficient information for me be satisfied the disturbance would be substantial. Given the nature of the activities described, it appears reasonable to conclude they often occur within the area of the national park. For the reasons explained above, I am satisfied exploration within the national park area is unlikely. On instances where Bunuba is conducting activities in other areas of the licence, I am satisfied these activities can coexist with the activities of Elderberry. Based on the evidence in this matter, I cannot conclude the grant of the licence is likely to substantially interfere directly with the carrying on of Bunuba’s community and social activities.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to Bunuba?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at [34–35]). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
The licence overlaps 16 sites and two ‘other heritage places’ registered on the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) Register. The AHIS Register does not purport to record all Aboriginal sites in Western Australia. That is, a site of particular significance for the purposes of s 237(b) does not need to be recorded on the AHIS Register. Regardless of whether or not a site is administratively identified on the AHIS Register, the Tribunal must consider whether there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions.
What areas or sites has Bunuba identified in relation to the licence?
BDAC’s contentions assert the following sites referred to in the affidavit of Mr and Ms Marr are sites of particular significance to Bunuba:
(a)Rock art sites throughout the licence, including at Windjana Gorge and Carpenter Gap;
(b)A gender restricted law ground and ceremony site;
(c)Ngarranggani (dreaming) tracks throughout the Napier Range in the licence;
(d)Site of dingo dreaming story, Baralama Hill;
(e)Site of emu dreaming story;
(f)Burial sites;
(g)Artefact scatters; and
(h)A living water site.
Ngarranggani (dreaming) tracks and stories; and rock art sites
The evidence relating to Ngarranggani tracks and stories is often interconnected with the evidence relating to rock art sites. For ease, I will considered the evidence relating to these sites and areas together.
The affidavit states there are Ngarranggani tracks ‘all through that range’ inside the licence and that some of them are recorded in paintings along the caves and rock walls. Although it is not explicitly stated in the affidavit, BDAC’s contentions suggest this is a reference to the Napier Range which runs through the licence. The affidavit states ‘Our old people used to use the Tenement Area all the time …to record important stories on the rock walls’. The paintings are described as being ‘in those caves; all through the Tenement Area there are paintings in the background.’
The deponents describe a dreaming story about two dingoes who travelled up from the south through the licence area. The affidavit states when the two dingoes arrived at Baralama Hill ‘they heard a different language that they didn’t understand so they stopped there.’ The affidavit states there are two rocks at the place where the dingoes stopped (marked ‘A’ on the map annexure). The affidavit further states ‘That place is a boundary. It tells us how far our country goes. There are dingoes painted on those rocks, and our grandfather’s handprint too, where he blew paint through his fingers onto the cave wall.’
The deponents also describe a dreaming story for the emu. The deponents say it is a similar story to the dingoes, involving the emu ‘travelling up and passing through that place and same way he heard a different language and he stopped.’ The deponents have marked ‘B’ on the map annexure to show the site of an emu painting on a rock.
The affidavit briefly refers to a Tasmanian tiger painting located within the licence area, as well as a big male Wanjina and small female Wanjina painting located at Carpenter Gap (marked ‘D’ on the map annexure).
A large number of painting sites, marked with circles by the deponents on the map annexure, are located within the Windjana Gorge National Park Reserve. The two dingoes painting, the emu painting, and the male and female Wanjina painting are all located outside the reserve area. I note that 14 of the sites recorded on the AHIS Register include ‘painting’ in their description, however, based on the evidence before me it is not possible to determine if they are the same sites described by the deponents.
The affidavit states:
These paintings are very special and important to us, they are sacred and they tell our stories. They are part of our culture and they preserve our stories and teach us about our Ngarranggani and our country. They have been there for generations and they carry us on, they pass on those special stories through the generations.
The deponents argue if someone destroys the paintings they could get sick or something could happen to them. They state they have a responsibility to protect the paintings ‘and to make sure they are preserved for the next generation to learn from them’.
Gender restricted law ground and ceremony site
The affidavit describes an area within the licence that is a mens’ law ground and Junba, or ceremony site. It states this is a place where women cannot go. The affidavit states:
This is a very important thing for our young people to understand, it the [sic] main thing about that area – understanding where they can and cannot go. If women wander onto men’s area, or men wander onto a women’s area, they might get hurt or very sick. It is important to understand this. They are sacred sites, and it can be very harmful if our cultural laws and protocols like these are broken.
The deponents have marked out the area of the mens’ law ground on the map annexure. The law ground is partially covered by the Windjana Gorge National Park Reserve.
Burial sites
The affidavit states there could be more burial sites throughout the licence than just those registered. I note that four of the AHIS registered sites and one of the ‘other heritage places’ that overlap the licence area include ‘skeletal material/burial’ in their description. They all partially or entirely sit within the Windjana Gorge National Park Reserve. The affidavit provides some information on Bunuba’s burial traditions, stating the bodies would be wrapped in paperbark and placed up in the caves rather than being buried in the ground. The affidavit states there could be burial sites all through the licence and that there would have been ‘lots of Bunuba people who died around there during the fighting time’. The deponents state it is important not to disturb those sites as ‘there could be trouble, they could come back and haunt you.’
Artefact scatters
The affidavit provides some information on artefact scatters within the licence area, stating there are many important artefacts in the area. Nine of the sites registered on the AHIS Register include ‘artefacts/scatter’ in the description. The affidavit states ‘They found an axe out there from the old people. Our old people would want those artefacts to be left where they are. That is how we do things in our culture. We don’t move these things and take them away, we leave them where they are.’
A living water site
The affidavit evidence makes reference to a living water site located within the licence. It states there are lots of cultural protocols for the licence area that need to be followed, such as ‘putting a stone under our arms and throwing it into the water so we don’t drown, and taking care of the living water’ which is marked with a ‘C’ on the map annexure. The affidavit states if explorers disturb the living water then something bad could happen to them. I note the area on the map annexure marked as the location of the living water site near to an AHIS ‘other heritage place’ described as a water source and named Lillimilura Grotto.
Are any of the identified sites or areas of particular significance in accordance with Bunuba’s traditions?
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular significance to the native title party in accordance with their traditions. For an area or site to be of ‘particular significance’ it needs to be of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at 34–35). It needs to be known, able to be located and the nature of its significance explained (see Silver v Northern Territory at [91]). If there is evidence that areas or sites of particular significance exist on a licence, I must proceed to consider whether interference is likely.
The agreed statement lists the following as sites and areas that parties agree are of particular significance to Bunuba:
(a)Two Dingos dreaming site;
(b)Emu dreaming site;
(c)Gender restricted law ground and ceremony site;
(d)Big male and small female Wanjina paintings; and
(e)Tasmanian tiger painting.
I accept, based on the evidence, the sites and areas listed above are of particular significance in accordance with Bunuba’s traditions.
I am not satisfied that the evidence regarding Ngarranggani (dreaming) tracks throughout the Napier Range is sufficient to establish these as sites of particular significance. The evidence relating to these tracks is brief and general in nature. This can be contrasted with the two dreaming stories which have both been located on a map and their significance described and explained in some detail. Similarly, aside from the rock art associated with the sites listed at (a), (b), (d) and (e) at [46] above, the evidence regarding rock art throughout the licence is too general in nature for me to make any findings.
The State has argued the information regarding the location of the burial sites and artefact scatters lacks specificity. The State accepts that burial sites in particular may be significant from a cultural and religious perspective but argue the burial and artefact sites have not been identified with the degree of specificity required by s 237(b).
I accept the burial sites listed on the AHIS Register are sites of particular significance in accordance with Bunuba’s traditions. While the affidavit does not go into great detail in explaining the particular significance of the burial sites, it does acknowledge the registered burial sites. The affidavit’s suggestion that there could be many more burial sites throughout the licence is speculative and I cannot afford it any weight.
In relation to artefact scatters within the licence, I agree with the State that the evidence lacks specificity. I acknowledge there are several registered artefact scatters within the licence, however, listing on the register alone is not sufficient to find a site is of particular significance. The affidavit’s reference to an axe being found ‘out there’ is not sufficient for me to be satisfied this site is known and able to be located. It is apparent from the evidence that artefact scatters are important to Bunuba people, and there are cultural protocols around how these sites should be treated. However, a site of particular significance must have a quality which causes it to clearly stand out in some way from the general background of other sites (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130]).
The evidence regarding the living water site is brief. Although its location has been marked on the map annexure, the affidavit does not explain in any detail the particular significance of this site. For this reason I cannot find the living water site is a site of particular significance for the purposes of s 237(b).
Is the grant of the licence likely to interfere with any areas or sites of particular significance to Bunuba?
Having been satisfied there are a number of sites and areas of particular significance within the licence area, the question I must now answer is whether it is likely Elderberry’s activities will interfere with any of these sites.
While the State accepts there are sites of particular significance in the licence area, it argues interference with these sites is unlikely due to a number of mitigating factors, including:
·The State’s proposed Regional Standard Heritage Agreement (RSHA) condition;
·Elderberry’s willingness to enter into a heritage agreement or consult with BDAC;
·That Elderberry’s initial work will not be ground disturbing;
·Many of the sites are located within Windjana Gorge National Park Reserve, where ministerial consent is required before commencing any exploration activity; and
·The Aboriginal Heritage Act 1972 (WA) (AHA) and its protective regime will normally be sufficient to ensure interference is unlikely.
The Tribunal is entitled to have regard, and give considerable weight, to the State’s site protection regime, including the AHA. However, this does not mean that in all cases the protective regime will be adequate to make interference under s 237 unlikely (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [18]).
Elderberry’s contentions state it is aware that disturbing an Aboriginal site or object is an offence against s 17 of the AHA. It further states the heritage agreement it provided to BDAC ‘outlined a path for identifying and mapping sites when ground disturbing activities were to take place’. In reply, BDAC has challenged any suggestion that identification of sites will necessarily result in those sites being avoided by Elderberry. BDAC refers to Elderberry’s contentions which state ‘Reasonable heritage agreements would allow for the process of seeking ministerial consent under section 18 of the [AHA] unencumbered.’
The State refers to three previously granted exploration licences that significantly overlapped the licence area (by 60.4 per cent, 60.9 per cent and 87 per cent respectively). The State argues, while it cannot be assumed the holders of these historical tenements exercised the full suite of rights available to them over the entire area of the licence, the Tribunal may consider it appropriate to infer some activity has occurred.
While I accept some activity is likely to have occurred as a result of the grant of these historical licences, there is no evidence before me to show the level or extent of any activities, or whether the grantee party in those matters had entered into an agreement with Bunuba prior to commencing any exploration. As such, I have afforded little weight to this contention.
In relation to the State and Elderberry’s reliance on an RSHA offer, no details have been provided explaining how an RSHA would operate in such a way as to avoid interference with the sites and areas of particular significance. The Tribunal has previously observed the RSHA only requires the conduct of surveys where ground disturbing activities are taking place (see at Wanjina-Wunggurr v Investmet Limited at [34]).
Although it appears a large portion of the men’s only law ground and ceremony site sits within the Windjana Gorge National Park Reserve, there is still a portion that is not within the reserve area. Given the sensitive nature of this site, I find that even non-ground disturbing activities in this areas would constitute interference for the purposes of s 237(b). Although the State has suggested it is likely Elderberry, or its female employees, could simply avoid the site, this is not an undertaking Elderberry has made in its contentions and I have not afforded it much weight.
As stated earlier in this decision, I am satisfied that exploration within the Windjana Gorge National Park Reserve is unlikely. As such, I find interference with the burial sites located within the reserve area unlikely. However, in relation to the other sites of significance located across the licence, being the Two Dingoes dreaming site, the Emu Dreaming site, the Tasmanian Tiger painting and the female and male Wanjina paintings, I am not satisfied the risk of interference posed by Elderberry’s activities has been mitigated. Elderberry has not addressed in any detail how it would avoid interference with these sites in the course of its activities. Although Elderberry’s proposed work program is initially non-ground disturbing, the second and third years of the program contemplate a range of ground disturbing activities including drilling. It is clear from the evidence presented in this matter that the area of the licence is culturally important to the Bunuba people and contains a number of significant sites. As such, I find the grant of the licence poses a risk of interference with these sites for the purposes of s 237(b).
Determination
For the reasons stated above, I find the grant of exploration licence E04/2487 to Elderberry Resources Pty Ltd is not an act attracting the expedited procedure.
Ms Helen Shurven
Member
12 December 2018
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