Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Mining Equities Pty Ltd and Another - [2024] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 v Mining Equities Pty Ltd and Another [2024] NNTTA 34 (14 May 2024)

Application No:

WO2022/1422

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

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

Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 (WC2022/003)

(native title party)

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Mining Equities Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:	Member Nerida Cooley
Place:	Brisbane
Date:	14 May 2024

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with the carrying on of community and social activities – act is not likely to interfere with community and social activities – whether act is likely to interfere with areas or sites of particular significance – Wati Kutjara (Two men) Dreaming story – Papa (Dog) Dreaming story – evidence insufficient to allow path of Dreaming stories to be located in the licence area – act is not likely to interfere with areas or sites of particular significance – whether act is likely to involve major disturbance to lands and waters – act is not likely to involve major disturbance – act is an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 31, 32, 151, 237
Cases:	Andrews and Others v Northern Territory of Australia and Another [2002] NNTTA 170; (2002) 170 FLR 138 (‘Andrews v Northern Territory’) Cheinmora v Striker Resources NL and Others; Dann v State of Western Australia and Others [1996] FCA 1147; (1996) 142 ALR 21 (‘Dann 1996’) Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391 (‘Dann 1997’) Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338 (‘Yugunga-Nya Determination’) Kevin Allen & Ors on behalf of Nyamal #1 v Beatons Creek Gold Pty Ltd and Another [2021] NNTTA 40 (‘Nyamal v Beatons Creek’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (‘Little v Oriole Resources’) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (‘Ngarlawangga and FMG’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Asia Investment Corporation’) Wilma Freddie on behalf of the Wiluna Group/Western Australia/Giralia Resources NL [2002] NNTTA 29 (‘Giralia Resources’) Wilma Freddie & Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd, [2011] NNTTA 170 (‘Kingx’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representative of the native title party:	Ashley Truscott, TCA & Co Legal

Representative of the grantee party:

Peter Gianni, Mining Equities

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office; Paola O’Neill, Department of Energy, Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Mining Equities Pty Ltd has applied for an exploration licence (E 51/2108) under the Mining Act 1978 (WA) near Cue in Western Australia. The vast majority (99.61%) of the licence falls within the area of the Yugunga-Nya People #2 native title determination application (WAD110/2022). The remainder, being a road, is an area where native title has been determined not to exist.
The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure under the Native Title Act 1993 (Cth), which would mean it may be granted without first requiring negotiation in good faith in accordance with s 31 of that Act.
The registered native title claimant for Yugunga-Nya People #2 (Yugunga-Nya) objects to the application of the expedited procedure, mainly for reasons related to two important Dreaming stories, which it says pass through the licence area.
The Tribunal is therefore required to determine whether or not the expedited procedure applies: s 32(4) Native Title Act. I have been directed to constitute the Tribunal for that purpose and am satisfied the matter can be adequately determined without a hearing: s 151(2) Native Title Act.
For the reasons explained below, I have determined that the grant of the licence is an act attracting the expedited procedure.

When does the expedited procedure apply?

Under the Native Title Act, the expedited procedure will only apply if the grant of the licence is not likely to:
(a)interfere directly with the carrying on of the native title holders’ community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to the native title holders, in accordance with their traditions: s 237(b); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters located in the licence area: s 237(c).
In order to determine whether the expedited procedure applies, I must undertake a predictive assessment by considering the likely consequences arising from the grant of the licence (in the sense of a real, not remote, chance) (see overview of approach in Yindjibarndi v FMG at [15]).
Yugunga-Nya contends that the grant of the licence fails to satisfy any of the elements of s 237. Given its concerns stem primarily from the two Dreaming stories mentioned, it is convenient to first examine the likelihood of interference with areas or sites of particular significance as contemplated by s 237(b).

Is the grant of the licence likely to interfere with areas or sites of particular significance to the Yugunga-Nya People, in accordance with their traditions?

An area or site of particular significance for s 237(b) is one of special, or more than ordinary, significance to the native title holders in accordance with their traditions: Dann 1996 at page 35. Such an area or site must also be known and be able to be located, and the nature of its significance explained: Yindjibarndi v FMG at [17]. The identification of a Dreaming track will not necessarily result in a finding of particular significance; the particular significance of the area or site associated with the Dreaming track needs to be adequately explained: Andrews v Northern Territory at [124].
In this case, Yugunga-Nya contends that the whole of the licence area is of more than ordinary significance due to the special significance of the two Dreaming stories.
The Dreaming stories of concern are the Wati Kutjara (Two men) Dreaming story and the Papa (Dog) Dreaming story as outlined in the witness statement of Mr Raymond Wingo, a Yugunga-Nya traditional owner. I note that Yugunga-Nya variously refers to the Wati Kutjara and Papa as a Dreaming “story” or “stories”. For consistency, I will refer to them collectively as stories.
Mr Wingo says that these are Dreaming stories of Western Desert Tjukupurra (also spelt Tjurkupurra) and that the Dreaming stories connect all Western Desert tribes. Mr Wingo describes their path of travel as follows:
7. The Wati Kutjara (Two men) and Papa (Dog) come from Warburton, to Mount Russell and goes into Yugunga-Nya country, passing where the tenement area is, and then travelled to Emu Chicks then to Mt Yagahong, which is mama for our people, and then out to Montague Range, and then over to Brown Soak which is Warlapakin in our way, and then the Wati Kutjara (Two men) and Papa (Dog) when [sic – went] down to Liru (Yarraquin) and Tjungara, which is garden rock, near Cue, then the Papa went towards Albany way.
8. The Wati Kutjara (Two men) and Papa (Dog) then come in from Mount Russell to the east of our area and it passed through where the tenement is now near Tjungara and garden rock, near Cue, that’s where that company wants to go for exploration. We got to protect this area for the dreaming story goes that way.
There are a number of aspects of Mr Wingo’s description which make it difficult for me to be confident of the path of the Dreaming stories in relation to the licence area.
Mr Wingo says that the Dreaming stories “come from Warburton” (which I understand to be a community located much further east, close to the Northern Territory Border) to Mount Russell. Mount Russell is not shown on any of the mapping provided by the parties but, according to the Tribunal’s online mapping tool Native Title Vision, there is a Mount Russell just outside the Yugunga-Nya People #2 boundary. That location is consistent with Mr Wingo’s evidence which indicates that the Dreaming stories go from Mount Russell “into Yugunga-Nya country”. From there, Mr Wingo says the Dreaming stories “[pass] where the [licence] area is” and then travel to Emu Chicks and Mt Yagahong.
I understand that Mt Yagahong is a very significant place for Yugunga-Nya People and that the Emu Chicks mentioned are two small hills west of Mt Yagahong as described in the Yugunga-Nya Determination at [57]. Mining Equities says that Mt Yagahong is 30 kilometres easterly of the licence but, according to Native Title Vision, that distance appears to be just over 50 kilometres.
Mr Wingo refers to the Dreaming stories passing the licence area on the way from Mount Russell to Emu Chicks and Mt Yagahong. That description is difficult to reconcile with both of those locations being a distance of more than 50 kilometres easterly of the licence. Further, Montague Range and Brown Soak, which are the next locations in the journey mentioned by Mr Wingo, appear to be easterly of Mt Yagahong, suggesting that the Dreaming stories weave their way easterly again before heading towards Cue, which is about 50 kilometres south westerly of the licence.
Nothing in Mr Wingo’s description clearly places the path of the Dreaming stories in proximity to the licence which makes it exceedingly difficult for me to be satisfied that the path is located in the licence area to the extent required for s 237(b). Further, while Mr Wingo expresses concern that the grant of the licence will interfere with the Dreaming stories, the evidence does not clearly explain why, in accordance with Yugunga-Nya tradition, the whole of the licence area is of particular significance due to its association with the Dreaming stories. On the question of likely interference, Mr Wingo says that if Mining Equities “step foot on our country without getting … permission from us … it will hurt” the Dreaming stories. He also mentions that “Woodarchies (little men), are all along that song line where the dreaming story goes”.
The uncertainty around the location of the Dreaming stories and the limited nature of the evidence are also issues raised by both Mining Equities and the State. Mining Equities argues that most of Yugunga-Nya’s contentions are “very general” and says that, while reference is made to the licence being near Garden Rock near Cue, Cue is 40 kilometres from the licence (or 50 kilometres according to the Tribunal’s overlap analysis). The State contends that Yugunga-Nya has not provided any “specific evidence” of the particular significance of the Dreaming stories as they relate to the licence area and says that general statements that places are “significant”, “important” or “special” are not sufficient for s 237(b).
In reply, Yugunga-Nya appears to accept that the licence is not in close proximity to Tjungara and Garden Rock near Cue. However, it contends that the Dreaming stories are “so diverse and wide reaching” that they “[touch] the [licence] above Cue”. Yugunga-Nya also refers to special significance placed on the Dreaming stories that ‘intersect’ this area of the licence and says this means that the whole of the licence area is an area or site of particular significance for s 237(b). It says further that, while there are areas in Yugunga-Nya country that are not traversed by the Dreaming stories, the licence area is an area that the Dreaming stories ‘touch’.
Again, these arguments are difficult to reconcile with the mapping provided and there is no evidence to support the assertion that the whole of the licence area is of particular significance if touched by the Dreaming stories. Importantly, Mr Wingo does not say that the Dreaming stories are so vast that they touch on the licence area, he says that they pass through the licence area on their way from Mount Russell to Mt Yagahong. The evidence does not support Yugunga-Nya’s contentions on this aspect and its arguments appear to have shifted in an effort to address the uncertainty arising from the description of the path of the Dreaming stories.
Yugunga-Nya also relies on Kingx, Giralia Resources and Asia Investment Corporation where the Tribunal found that the expedited procedure did not apply due to sites associated with these or other Dreaming stories. However, in each of those cases, there were specific areas or sites identified in the relevant tenement areas and an explanation of their particular significance in the context of the relevant Dreaming stories.
In Kingx, the Tribunal had the benefit of mapping which showed where the Wati Kutjara and Papa Dreaming stories, amongst others, traversed the tenements in question. There were also specific areas or sites identified in each of the relevant tenements and their particular significance in the context of the Dreaming stories was explained. It was those specific areas or sites, including landscape features, which underpinned the Tribunal’s findings, rather than the path of the Dreaming stories generally.
Similarly, in Giralia Resources at [10], the Tribunal found the area of Lake Nabberu was of particular significance to the relevant native title party, due to its association with Dreaming stories, including Wati Kutjara (referred to as Marti Kutjara in that paragraph of the decision). In Asia Investment Corporation at [18], the identified area was a section of the hills called Mundin associated with another Dreaming story.
Overall, the evidence in this case is insufficient for me to find that the Dreaming stories pass through the licence area as their path is not clear and I could not be confident of where they transect the licence. Further, the evidence does not support a finding that the entire licence area is of particular significance, nor are there any specific areas or sites associated with the Dreaming stories identified in the licence area on which to make a finding of particular significance as required for s 237(b).
Accordingly, I am not satisfied that the grant of the licence is likely to cause interference within the meaning of s 237(b).

Is the grant of the licence likely to directly interfere with the Yugunga-Nya People’s community or social activities?

Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section. I have also had regard to the discussion of the authorities regarding s 237(a) in Ngarlawangga and FMG at [72]–[77].
Yugunga-Nya argue that community and social activities occur within the area of the licence, namely the observation of the Wati Kutjara Dreaming story and the Papa Dreaming story. Mr Wingo’s evidence is that Yugunga-Nya traditional owners “continue to protect and maintain areas of cultural significance in the area”, including the Dreaming stories. He says “we check on this area, check to see that no one has been messing it up, and make sure that the dreaming story is safe”.
Mr Wingo has not identified any specific areas of cultural significance that are protected and maintained in the licence area and, even putting the questions around the path of the Dreaming stories to one side, there is no evidence of the nature, timing or frequency of those activities. Those can be important factors for establishing the direct, non-trivial interference that s 237(a) requires.
As contended by the State, the evidence is insufficient for me to make any findings regarding community and social activities carried out in the licence area. The significant uncertainty around the path of the Dreaming stories does not assist.
Accordingly, I am not satisfied that the grant of the licence is likely to directly interfere with community or social activities in the context of s 237(a).

Is the grant of the licence likely to cause major disturbance?

In the context of s 237(c), major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Littlev Oriole Resources at [52]–[54]). I can also have regard to the context of the relevant grant, including the history of mining and the characteristics of the land and waters to determine whether major disturbance is likely.
In Dann 1997 at page 395 the word “major” is described as an adjective of degree in respect of which the Tribunal must make a value judgement.
The licence would be granted under s 61 of the Mining Act for an initial term of five years. Section 66 sets out the rights of the licence holder. The licence will also be subject to a number of conditions and endorsements provided by the State, as well as regulatory controls, including under the Mining Act and Aboriginal Heritage Act 1972 (WA) (AHA). The amended AHA commenced on 15 November 2023, during the course of this inquiry. All parties were invited to provide submissions on the application of the amended AHA but only the State did so.
In its statement under s 58 of the Mining Act, which accompanied the licence application, Mining Equities says its primary target is base metals mineralisation potential. An outline of works for the first two years of the term of the licence is also set out and the estimated expenditure is about $27,000 in year 1, mainly for review and assessment work. Year 2 will involve site based assessment, including a scout drilling program. Assuming positive results, years 3 and 4 will involve further infill and extensional drilling. Naturally enough, the information available at this stage is limited, so it is reasonable to work on the basis that Mining Equities may avail itself of the full suite of rights available under the licence.
In terms of the features of the licence area, the tenure underlying the majority of the licence is a pastoral lease, which appears to be held by an Aboriginal corporation. There is no evidence of any Aboriginal community in or in the vicinity of the licence. There is evidence of mining tenements having been granted over parts of the area but no evidence of the extent of any activity undertaken under those tenements. There are no registered Aboriginal sites under the AHA or lodged sites in the licence area.
Yugunga-Nya contends that the grant of the licence is likely to cause major disturbance. It says that any disturbance, such as Mining Equities being present on the licence to conduct exploration activities, is too much disturbance. Mr Wingo’s evidence is in similar terms. He speaks to the importance of water, including for the animals and the Woodarchies, and says anything done to land and waters is too much and will need to be managed in accordance with Yugunga-Nya culture.
The State contends that major disturbance is not likely in light of its regulatory regime applicable to the licence, including the proposed conditions and endorsements on the licence. It argues further that Yugunga-Nya has not identified any particular characteristics that would be likely to result in major disturbance in this context.

Yugunga-Nya has raised the importance of water, albeit in a very general way, and without explaining how the grant of the licence will impact water. The State’s proposed endorsements for the licence include a number of restrictions in relation to water and, given the general nature of the concerns raised, there is no basis to conclude that the State’s regulatory regime will be inadequate to manage any impacts on water.
Yugunga-Nya does not address any of the State’s contentions in its reply and for the most part repeats its initial contention that any disturbance is too much disturbance. This argument has been rejected by the Tribunal on a number of occasions and found to be inadequate (see Nyamal v Beatons Creek at [31]). It does not assist my predictive assessment for s 237(c).
Having regard to the facts and circumstances in this matter, and taking account of the State’s conditions, endorsements and regulatory regime, I am not satisfied that the grant of the licence is likely to cause major disturbance within the meaning of s 237(c).

Determination

I determine that the grant of exploration licence E 51/2108 is an act attracting the expedited procedure.

Ms Nerida Cooley
Member
14 May 2024