Gooniyandi Aboriginal Corporation RNTBC v Base Minerals Pty Ltd - [2023] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Gooniyandi Aboriginal Corporation RNTBC v Base Minerals Pty Ltd and Another [2023] NNTTA 1 (25 January 2023)

Application No:

WO2021/1302

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

Gooniyandi Aboriginal Corporation RNTBC (WCD2013/003)

(native title party)

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Base Minerals Pty Ltd

(grantee party)

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State of Western Australia

(Government party)

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

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	25 January 2023

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with the carrying on of community and social activities – whether act likely to interfere with sites or areas of particular significance – Mimbi Cave System as an area or site of particular significance – whether act likely to involve major disturbance to lands and waters – act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) s 18 Native Title Act 1993 (Cth) ss 31, 151, 237
Cases:	Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (‘Bunuba v Oladipo’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC and Another [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG v Yindjibarndi’) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another [2018] NNTTA 11 (‘Cape York United #1 v Lithium’) 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’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’)
Representatives of the native title party:	Shaz Rind, Arra Energy; Tania Smith, Gooniyandi Aboriginal Corporation RNTBC

Representative of the grantee party:

Shelly Zhang, Aurora Tenement Consulting

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office; Andrea Wyles, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

Mimbi is the name given by Gooniyandi People to an area about 90 kilometres easterly of Fitzroy Crossing in the Kimberley region of Western Australia, between the Emanuel and South Lawford Ranges. Mimbi is also the name of a cave system formed in the Devonian reef complexes of the South Lawford Range. Caves in the Mimbi Cave System have been found to contain fish fossils, rock art (including Wandjina type figures), burial sites and, in one particular case, evidence of human occupation dating back more than 40,000 years. Gooniyandi People also operate tourism activities at Mimbi including camping and cave tours.
Gooniyandi Aboriginal Corporation RNTBC holds native title in trust on behalf of the Gooniyandi People in relation to Mimbi and Mimbi Caves. Base Minerals Pty Ltd has applied for the grant of an exploration licence which includes Mimbi and parts of the Emanuel and South Lawford Ranges.
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). If the expedited procedure applies, the licence may be granted without first requiring Base, Gooniyandi and the State to negotiate in good faith about the grant.
Gooniyandi strenuously objects to the application of the expedited procedure to the grant of the licence, particularly because it includes Mimbi Caves. Gooniyandi compares the significance of Mimbi Caves to Uluru and Juukan Gorge, the destruction of which recently attracted national attention and was the subject of a Joint Parliamentary Inquiry[1].
[1] Joint Standing Committee on Northern Australia, ‘A Way Forward – Final report into the destruction of Indigenous heritage sites at Juukan Gorge’ (October 2021).
There are three issues relevant to my determination. Two of these relate to the Gooniyandi People’s native title, namely whether the grant of the licence is likely to interfere with areas or sites of particular significance to Gooniyandi People in accordance with their traditions or likely to directly interfere with Gooniyandi People’s community and social activities. The third issue is whether the grant of the licence is likely to cause major disturbance within the meaning of the Native Title Act. If the answer to any of those questions is yes, the expedited procedure does not apply.
I am satisfied that this matter can be adequately determined without a hearing: s 151(2) Native Title Act. For the reasons given below, I have determined that the grant of the licence is not 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 Gooniyandi People’s community or social activities: s 237(a);
(b)interfere with areas or sites of particular significance to Gooniyandi People, in accordance with their traditions: 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).
In order to make that determination, 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).
As the significance of Mimbi Caves is central to Gooniyandi’s contentions and evidence I propose to address s 237(b) first before moving on to the other limbs of s 237.

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

Are there areas or sites of particular significance to Gooniyandi in the licence area?

For an area or site to be of particular significance for s 237(b), it must be of special, or more than ordinary, significance to the native title holders in accordance with their traditions. It must also be known and be able to be located.

Mimbi Cave System

Gooniyandi has identified a number of areas or sites in the licence area which it says are of particular significance to Gooniyandi People. Principal amongst these is the Mimbi Cave System in the South Lawford Range. Gooniyandi describes Mimbi as the jewel in its crown.
The area known as Mimbi lies between the Emanuel and South Lawford Ranges in Bugle Gap. The licence area includes part of the Emanuel Range on the western side of the licence, Bugle Gap in the centre and part of the South Lawford Range on the eastern side. The mapping shows the communities of Mimbi and Old Mimbi in the licence area in Bugle Gap.
The caves of concern to Gooniyandi are located in the South Lawford Range, but are not located wholly within the licence area. As I have noted, part of the South Lawford Range is within the licence area but it also extends outside the licence to the north and east.
Gooniyandi provided documentary, photographic and video evidence, including reports, papers and media articles containing information about the Mimbi Cave System. However, while there is video evidence of Mimbi Caves and associated tourism activities, I am not able to readily determine from the videos that the caves shown are located within the licence area.
Gooniyandi initially provided three maps in support of its objection. Map 2 is a map showing the Mimbi Cave System overlapping the licence in the east and identifying a number of cave entrances in the licence area. Gooniyandi says these locations represent known cave entrances as identified by traditional owner Delwyn Sharpe and confirmed by Rosemary Nugget. It believes there are more entrances, as yet unfound. While the area depicted as the Mimbi Cave System is not to scale, I understand it to represent the South Lawford Range in and adjacent to the licence area. Map 2 identifies four cave entrances in or near the licence area in the vicinity of Mimbi community. In the video provided by Gooniyandi as Appendix G, Ms Nugget says that Mimbi is the Gooniyandi word for cave.
The Tribunal also prepared a number of maps of the licence and surrounding areas, which have assisted me in identifying locations mentioned in Gooniyandi’s evidence. The Tribunal’s mapping similarly identifies caves in the licence area in the general vicinity of Mimbi community. These are Cave Spring, which Gooniyandi says is the main cave and tour site, and Nardji Cave, which Gooniyandi describes as a massacre cave and tour site.
Further to the north along the western side of the South Lawford Range, the Tribunal’s mapping shows Jones Spring, which Gooniyandi says is a cave site with paintings, and Kevin’s Cave which is discussed further below. Kevin’s Cave, which Gooniyandi says is also known as Riwi Cave, is shown in the north-easterly corner of the licence.
Gooniyandi provided a report by Phillip Playford[2] on the geological features of the Devonian reef complexes of the Canning Basin which refers to the Mimbi Cave System in the South Lawford Range as the “largest, best known, and most spectacular cave and karst corridor networks”. While not directly relevant to the issues in the inquiry, nor the subject of any detailed contentions, the Playford report has provided useful background information and has been of some assistance in confirming other evidence provided by Gooniyandi.
[2] Phillip Playford, Palaeokarst, pseudokarst, and sequence stratigraphy in Devonian reef complexes of the Canning Basin, Western Australia (2002).
The author estimates that not more than 50% of the Mimbi Cave System has been mapped[3]. Figure 8 in the Playford report depicts Cave Spring on Mimbi Creek on the western edge of the range. This accords with the Tribunal’s mapping which shows Cave Spring on the western edge of the range near the licence boundary. Figure 15 in the Playford report is a diagrammatic map of the Mimbi Cave System. Unfortunately, apart from Mimbi Creek, none of the names, including cave names, shown on that map appear on any other mapping.
[3] Ibid 775.
While it no doubt extends into the licence area, what Playford describes as the Mimbi Cave System does not appear to include all of the caves in the South Lawford Range. Certain of the figures and descriptions in the Playford report suggest he confines Mimbi Caves to particular caves in and around Mimbi Creek. This would exclude, for example, Kevin’s (or Riwi) Cave further to the north. Playford mentions Kevin’s Cave but does not refer to it as part of the Mimbi Cave System. Further, based on the scale of the map at Figure 15, the Mimbi Cave System described by Playford spans less than one kilometre north to south, whereas, according to the Tribunal’s mapping, Kevin’s Cave is over four kilometres north of Cave Spring.
Gooniyandi has also provided a paper by Jane Balme[4] detailing findings from an excavation of two caves, “about 200 metres apart at the base of a west facing cliff of the Lawford Range”. The caves are known as Japi (meaning grandfather) and Riwi (meaning camping place). As noted, Gooniyandi says that Riwi Cave is another name for Kevin’s Cave. Balme says that Japi was chosen for excavation because it was identified as having been occupied by two Gooniyandi ancestors, Limestone Billy and Gogo Billy while hiding from police. Riwi was chosen because of its potential for a deep, well preserved deposit. Balme described Riwi as a deep, high cave with a large keyhole shaped entrance, which matches the photograph of Kevin’s Cave at Figure 11E in the Playford Report. Balme says both caves are richly decorated with paintings. The excavation at Riwi revealed evidence of human occupation, including bone tools, found to date back over 40,000 years.
[4] Jane Balme, Excavations revealing 40,000 years of occupation at Mimbi Caves, south central Kimberley, Western Australia (Australian Archaeology Number 51, 2000).
This information accords with the State’s search of the Aboriginal Heritage Inquiry System which identifies the following two registered sites in the north-easterly corner of the licence:
(a)Wiwiri (which I understand to be Riwi or Kevin’s Cave), a restricted site described as “Artefacts / Scatter, Painting, Rockshelter, Arch Deposit, BP Dating: >40,000, Camp”; and
(b)Japi, a restricted site described as “Artefacts / Scatter, Grinding Patches / Grooves, Historical, Painting, Rockshelter, Arch Deposit, BP Dating: 340 BP, Camp”.
In contrast to Playford’s seemingly narrow depiction of the Mimbi Cave System, the title of Balme’s paper describes the excavations of Riwi (Kevin’s Cave) and Japi as “revealing 40,000 years of occupation at Mimbi Caves”. She later refers to “excavations at Mimbi”, perhaps referring to the general locality of Mimbi.
In any event, nothing particularly turns on the apparent distinctions in these two academic works. What is relevant to the inquiry is the description and location of the area or site of particular significance as identified by Gooniyandi, and that description clearly includes the whole of the South Lawford Range in the licence area.
In conclusion, in terms of the location of the Mimbi Cave System, it is sufficiently clear from the material as a whole that:
(a)the Mimbi Cave System is located in the South Lawford Range and extends into the licence area;
(b)there are a number of caves and cave entrances in the licence area, on the western side of the range, including Cave Spring, Nardji Cave, Jones Spring, Japi and Riwi (Kevin’s Cave); and
(c)Riwi and Japi, located in the north-easterly corner of the licence, are also registered Aboriginal sites, with Riwi containing evidence of human occupation dating back over 40,000 years.
Being satisfied that the Mimbi Cave System is located, at least in part, in the licence area, it is then necessary for me to consider whether the Mimbi Cave System is an area or site of special or, more than ordinary, significance to Gooniyandi.
Gooniyandi says that the particular significance of the Mimbi Cave System arises because of its association with the Blue Tongue Lizard Dreaming.
Base has not addressed the question of significance. The State says that it is open to me to accept there is evidence of particular historical and archaeological features of Mimbi Caves. However, it says that Gooniyandi’s material is of little assistance to me in determining the issues arising from s 237. It also argues that the material is too general to be given any significant weight. In particular, the State contends that, while the material provided by Gooniyandi suggests the caves are important, it does not rise to the level of establishing particular significance for s 237(b).
I do not accept that contention. I agree that some of Gooniyandi’s material is of a general nature and addresses the historical and archaeological features of the caves. However, Gooniyandi has explained the particular significance of the caves as part of the Blue Tongue Lizard Dreaming story. This is told through video, including by Gooniyandi Chair, Claude Carter, and evidenced in the written materials provided by Gooniyandi, including a booklet entitled Mimbi Goorroomba. Balme also refers to the significance of Mimbi Caves due to their association with this story. Additionally, there is clear evidence of significance associated with the occupation of the caves by Gooniyandi ancestors as mentioned by Balme and reflected in the registered site records.
From this evidence, I am satisfied that the Mimbi Cave System in the South Lawford Range, including part of the licence area, is of particular significance to Gooniyandi People in accordance with their traditions.

Other areas or sites identified by Gooniyandi

In addition to the Mimbi Cave System, Gooniyandi has identified a number of other important sites in the licence area. In response to a request for additional information, Gooniyandi advised that these sites had been identified and located by Ms Nugget and provided a copy of a map with handwritten descriptions and markings by Ms Nugget.
Not all of the locations listed by Ms Nugget appear to be marked on the map. However, there are six locations clearly marked in the licence area, namely:
(a)a men’s sacred site, which appears to be located on or near the western boundary of the licence;
(b)a women’s sacred site in the westerly part of the licence;
(c)another site marked as a men’s sacred site south-easterly of the women’s site, although this location is described on Ms Nugget’s map as “many sacred sites”;
(d)fossil sites which appear to be within the South Lawford Range;
(e)a campground towards the centre of the licence which appears to be in the vicinity of Old Mimbi community; and
(f)Mimbi community.
Later, in providing comments on the Tribunal’s mapping, Gooniyandi identified the location of a number of sacred sites, including men’s and women’s sites. Not all of that information is consistent with the initial list of areas or sites identified by Ms Nugget, but that may simply be because it is sourced from a number of different Gooniyandi People.
While these various sites are marked on the mapping, there is no explanation or discussion of why each is of special or more than ordinary significance in accordance with Gooniyandi traditions, which is what s 237(b) requires. This is in contrast to the information on the Mimbi Cave System. Gooniyandi makes a number of general comments regarding the spiritual significance of Mimbi, the surrounding area and Dreaming tracks that run across the licence area. I do not doubt the existence of these sites and their importance to Gooniyandi. However, there is insufficient evidence to support findings with respect to any specific areas or sites, other than the Mimbi Cave System.

Is the grant likely to interfere with the Mimbi Cave System?

Gooniyandi states that the entire Mimbi area is a no-go zone. It submits that any access or activity will “upset our spirits and impact on the wellbeing of our people”. This sentiment is also reflected in the email from Chantelle Murray and expressed by Mr Carter in his explanation of the significance of Mimbi Caves and their association with the Blue Tongue Lizard story. Many of Gooniyandi’s concerns for the Mimbi Cave System are expressed in the context of the whole Mimbi area i.e. not just in the context of the Dreaming story, but also for the caves and what they hold, for their historical and archaeological significance and for continued community and social activities in the Mimbi area.
These types of submissions can sometimes present a difficulty when considering the requirements of s 237(b) because they may appear to speak to the significance of country generally, rather than to the area or site of particular significance. In this case though, I understand Gooniyandi’s submissions simply to reflect the stated paramountcy of the Mimbi Cave System in its significance to Gooniyandi and connection to the surrounding area.
This goes to what McKerracher J observed in FMG v Yindjibarndi at [69] that “it is the interaction of the proposed activity taken at large with the particular site having regard to the nature of the site which will determine whether there is interference in the sense used in subsection (b).”
There is scant evidence about Base’s intentions for the licence. Its s 58 statement identifies its target minerals as copper, zinc and lead. Costs associated with the first year work programme are estimated at $22,826 but there is little that can be drawn from that evidence for the purposes of my predictive assessment.
Base’s contentions are also brief. It says there is insufficient evidence provided by Gooniyandi and, with respect to the risk of interference, simply states that it will put measures in place and strictly comply with the statutory law, regulations and conditions imposed on the licence. Base does not say, nor is there any evidence of, what those measures would be.

The State argues that Base’s activities will be low impact and non-intrusive but there is no evidence to support that contention other than the s 58 statement, which applies only to the first year. The State also says the nature of the activities is such that they are likely to be conducted away from Mimbi Caves. This contention appears to be entirely speculative as there is no evidence to that effect, nor does Base make any such statement.
The State further argues that its regulatory regime, including the Aboriginal Heritage Act1972 (WA) and the proposed endorsements and conditions will mitigate any impacts from the licence. Again, this is not explained in any detail and there are also a number of difficulties with the State’s arguments regarding the operation of the Aboriginal Heritage Act, as the Tribunal has observed previously (see Bunuba v Oladipo at [52]–[54]).
Having regard to the nature of the Mimbi Cave System, including its significance and sensitivity, the large portion of the licence it covers and the lack of evidence beyond the first year about Base’s proposed activities or how it plans to undertake those activities, I consider that interference is likely here.
In my view, this is clearly a matter properly requiring good faith negotiation between the parties.

Is the grant of the licence likely to interfere directly with Gooniyandi 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 helpful discussion of the authorities regarding s 237(a) in Ngarlawangga and FMG at [72]–[77]).
In this case, there is limited evidence about the scope and extent of community and social activities undertaken by Gooniyandi People in the licence area.
The mapping identifies two communities within the licence area, being Mimbi and Old Mimbi. There is no specific evidence of the extent to which these communities are occupied or the extent of activities undertaken, although in an email submitted as Appendix E, Ms Murray of Gooniyandi refers to communities and small blocks where Gooniyandi traditional owners live, including Mimbi community, Girloorloo Ngarrdi community and Old Mimbi community. Ms Murray also refers to the high value of medicine and food from plants in the Mimbi area.
In commenting on the Tribunal’s mapping, Gooniyandi also identified at least two areas with housing blocks, but nothing is added about the occupation of or activities in those areas.
While there are various references in Gooniyandi’s material to activities such as camping, hunting, fishing and gathering, much of Gooniyandi’s evidence about community and social activities relates to the operation of tours and campsites associated with Mimbi Caves. Gooniyandi People operate tours to the caves under the name Girloorloo Tours. There are a number of campsites associated with the cave tours in Bugle Gap. This is evident from the State’s proposed Endorsement 3 which draws the licensee’s attention to six licences for camping in the area.
The State argues that the conduct of tours by a small number of Gooniyandi People does not amount to community and social activities for the purposes of s 237(a). The extent to which business activities constitute community and social activities has been considered by the Tribunal on a number of occasions: see discussion in Cape York United #1 v Lithium at [26]. In that case the Tribunal was satisfied that the activities concerned constituted community or social activities, in part because of the relationship between the native title party and the relevant business entity and the purposes of that entity. In this case, it is evident that Gooniyandi People are involved in conducting and running tours but I do not have any information about the ownership structure and purposes of the tour operation and its association with Gooniyandi.
In any event, it is not necessary for me to decide that issue here. While I can readily accept from the material that some Gooniyandi People live in the area in Bugle Gap known as Mimbi, undertake community and social activities in that area, and that tours operate to Mimbi Caves, insufficient detail is provided. I am unable to glean from the material the scale of that occupation or those activities. For s 237(a), interference must be direct and non-trivial and, overall, there is not enough information provided for me to conclude that is likely to be the case.

Is the grant of the licence likely to involve major disturbance to any part of the licence area?

Gooniyandi has not addressed the question of major disturbance within the meaning of s 237(c) and, as indicated in its response to the Tribunal’s mapping, Gooniyandi’s contentions are directed to ss 237(a) and (b).
Base says little on this point other than that there is no requirement for major disturbance to be assessed according to the native title party’s traditions. That is the case.
As the State points out, major disturbance is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. 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 terms of the characteristics of the land and waters, I expect the existence of the Mimbi Cave System in the licence area would be a key factor in determining whether major disturbance is likely.
However, none of those matters have been canvassed by the parties in any detail. As discussed in Ward v Western Australia at [26], the Tribunal takes a common sense approach to the evidence and, in the absence of any material or substantive contentions addressing this issue, I am not in a position to conclude major disturbance is likely.

Conclusion

The grant of the licence is likely to interfere with the Mimbi Cave System, being a site of particular significance to Gooniyandi People in accordance with their traditions. On the material provided, I am unable to conclude that the grant of the licence is likely to directly interfere with Gooniyandi’s community and social activities or cause major disturbance within the meaning of s 237(c).
In light of my conclusions regarding interference with Mimbi Caves, the grant of the licence is not an act attracting the expedited procedure. Gooniyandi, Base and the State are therefore required to negotiate in good faith with a view to obtaining Gooniyandi’s agreement to the grant of the licence in accordance with s 31 of the Native Title Act.

Determination

I determine that the grant of exploration licence E80/5570 is not an act attracting the expedited procedure.

Nerida Cooley
Member
25 January 2023