Ipima Ikaya Aboriginal Corporation RNTBC v Latsod Pty Ltd
[2023] NNTTA 24
•15 August 2023
NATIONAL NATIVE TITLE TRIBUNAL
Ipima Ikaya Aboriginal Corporation RNTBC v Latsod Pty Ltd and Another [2023] NNTTA 24 (15 August 2023)
Application No: | QO2021/0046 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Ipima Ikaya Aboriginal Corporation RNTBC (QCD2014/017; QCD2017/005)
(native title party)
- and -
Latsod Pty Ltd
(grantee party)
- and -
State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 15 August 2023 |
Catchwords: | Native title – future act – proposed grant of exploration permit – expedited procedure objection application – whether act is likely to interfere with the carrying on of community and social activities – whether act is likely to interfere with sites or areas of particular significance – Women’s Place as an area of particular significance – walking path associated with the Highway Supermarket story as a site or area of particular significance – Rainbow Serpent resting place as a site or area of particular significance – whether act is likely to involve major disturbance to lands and waters – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Cultural Heritage Act 2003 (Qld) s 23 Aboriginal Land Act 1991 (Qld) Environmental Protection Regulation 2019 (Qld) sch 6, pt 3, s 3(a) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Human Rights Act 2019 (Qld) Mineral Resources Act 1989 (Qld) ss 141, 141AA Native Title Act 1993 (Cth) ss 29, 31, 150, 237 |
Cases: | Anderson on behalf of the Northern Cape York #3 Native Title Claim Group v State of Queensland [2017] FCA 830 (‘Northern Cape York #3’) Cape York United Number 1 Claim v Big Bull Resources Pty Ltd and Another [2022] NNTTA 65 (‘Big Bull’) 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’) David on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430 (‘Torres Strait Regional Seas Claim’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC and Another [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG v Yindjibarndi’) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (‘Hale v Mings Mining’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) FCR 576 (‘Little v Oriole Resources’) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (‘Gamboola’) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another [2018] NNTTA 11 (‘Lithium Australia’) Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another [2022] NNTTA 11 (‘Oosen Lewis’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘MNR v FMG’) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (‘Ngarlawangga and FMG’) Pacgold Ltd v Ross and Ors as the Registered Native Title Claimant in Cape York United Number 1 Claim [2022] QLC 15 (‘Pacgold’) Robert Mumu & Ors on behalf of Karinga Lakes v Territory Potash Pty Ltd [2021] NNTTA 60 (‘Karinga Lakes’) Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 (‘Tjiwarl’) Woosup on behalf of the Northern Cape York Group #1 v State of Queensland (No 3) [2014] FCA 1148 (‘Northern Cape York Group #1’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | David Yarrow of Counsel; Kirstin Malyon & Daniel Barker, Cape York Land Council Aboriginal Corporation |
| Representatives of the grantee party: | Stacey Venter & Brian Martin, Hetherington Exploration & Mining Title Services (QLD) Pty Ltd |
| Representatives of the Government party: | Marc McKechnie of Counsel; Lyndal Hanrahan, Crown Law; Chris Rawlings & Leonie Crane, Department of Resources |
REASONS FOR DETERMINATION
Latsod Pty Ltd has applied for the grant of an exploration permit for minerals over about 107 square kilometres of remote and relatively untouched land and waters near the western coastline of far northern Cape York, in the State of Queensland.
Native title has been determined to exist in relation to the whole of the permit area. Apart from a small portion extending into the Gulf of Carpentaria, Ipima Ikaya Aboriginal Corporation RNTBC holds native title in relation to the permit area in trust for the common law holders of native title (see Northern Cape York Group #1 and Northern Cape York #3, collectively the Determinations). Ipima Ikaya recognises the Ankamuthi People as the common law holders for that part of the permit area.
The State of Queensland (acting through the Minister for Resources) proposes to grant the permit subject to native title protection conditions, designed to minimise the impact of the grant of the permit on native title. The State considers the grant of the permit subject to native title protection conditions is an act attracting the expedited procedure under the Native Title Act 1993 (Cth). If the expedited procedure applies, it means that the permit may be granted without the need for Latsod, Ipima Ikaya and the State to negotiate in good faith about the grant in accordance with s 31 of the Native Title Act. Ipima Ikaya objects to the application of the expedited procedure and it therefore falls to me to determine whether or not it applies.
There are three key issues relevant to my determination. Two of these relate to native title, namely whether the grant of the permit is likely to interfere with areas or sites of particular significance to the Ankamuthi People in accordance with their traditions or likely to directly interfere with the Ankamuthi People’s community and social activities. The third issue is whether the grant of the permit 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. As is often the case in relation to expedited procedure objection applications in Queensland, the application and operation of the proposed native title protection conditions is central to my consideration of those issues.
For the reasons given below, I have concluded that the grant of the permit is not an act attracting the expedited procedure.
The Tribunal’s inquiry
This matter has had a protracted history. It was subject to case management over a number of months, during which time the parties explored the possibility of resolving Ipima Ikaya’s objection application by agreement.
Latsod says that the parties negotiated an agreement under s 31 of the Native Title Act, a proposition which Ipima Ikaya disputes. Of course the negotiations did not occur under s 31 because of the State’s view that the expedited procedure applies to the grant of the permit. However, I understand that, where an objection application is resolved by agreement in Queensland, it is common practice for the parties to sign a s 31 deed and proceed as if the expedited procedure does not apply. That may be the basis for Latsod’s comment.
The Tribunal’s records reflect that, during case management, Ipima Ikaya became concerned about the number of tenement applications being notified within the area of the Determinations and ultimately informed the Tribunal that it did not wish to pursue an agreement, preferring to proceed to inquiry. Evidence from a director of Ipima Ikaya, Ms Rebecca Williams, outlines Ipima Ikaya’s concerns regarding the negotiation process. Ipima Ikaya contends that the time constraints and framework associated with the expedited procedure are not conducive to the progression of the matter. Ipima Ikaya would, instead, like to enter into negotiations under s 31.
Ms Williams says that, while she did not want to go through the inquiry process, she believes it is the only way for Ipima Ikaya to achieve an opportunity to negotiate fairly with Latsod. She says the Ankamuthi People have too many cultural sites and areas, and conduct too many activities, within the permit area that were not properly considered during negotiations with Latsod and that, if there is to be exploration on Ankamuthi country, it must not be to the compromise of the Ankamuthi People’s way of life.
Latsod appears to be genuinely mystified by this turn of events, as it does seem the parties were close to agreement and Latsod is clear in its desire to have a cooperative working relationship with Ipima Ikaya. Latsod believes the negotiations were “essentially completed” in accordance with the requirements for negotiation in good faith and says negotiations were nearly concluded when Ipima Ikaya terminated without reason, the good faith of which Latsod questions.
The Tribunal’s experience is that most native title and grantee parties seek to negotiate in order to resolve an objection application by agreement, rather than rely on a decision of the Tribunal. However, unlike negotiations under s 31 of the Native Title Act, there is no obligation on any of the parties to negotiate and it must be acknowledged that negotiations against the background of the expedited procedure occur in an entirely different context to those under s 31.
The inquiry itself has also been lengthy. In so far as expedited procedure matters go, the parties provided large amounts of material and contentions, some of which might be characterised as dense. Ipima Ikaya also raised new arguments and provided additional evidence throughout the inquiry. This, in turn, led to further submissions by the State and Latsod. No doubt the approach taken reflects the significance of this proceeding to the parties, but it has also over-complicated matters somewhat, and has not necessarily been of assistance to me in making a determination.
Both the State and Ipima Ikaya requested a hearing, but for different reasons. The State wanted the opportunity to address new material provided with Ipima Ikaya’s reply and what it called the “complex and novel nature” of certain issues in dispute. Ipima Ikaya also requested a hearing, being a hearing on country. Through participation in a conference under s 150 of the Native Title Act, the parties eventually agreed, and I accepted, that the native title party could provide additional video evidence taken on country, followed by a short oral hearing for legal argument.
Ipima Ikaya provided video evidence comprising a further eight statements from Ankamuthi People as well as videos showing Ankamuthi People at Vrilya Point and Crystal Creek. Neither the State nor Latsod sought to cross-examine any of Ipima Ikaya’s witnesses. For the most part, the video evidence supplements and supports the affidavits and statement provided, but has not been determinative of any issue.
While Ipima Ikaya relies on a sizeable amount of evidence including various reports, maps and supplementary documents, the key evidence is drawn from the following:
· Affidavit of Sandra Sebasio dated 14 April 2022 with annexures
Ms Sebasio is a member of and has authority to speak for the Ankamuthi People. She says her occupation is Ankamuthi language keeper and teacher and also the Director and Project Developer of the Healing Country Program.
· Affidavit of Rebecca Williams dated 27 May 2022 with annexures
Ms Williams is an Ankamuthi person with authority to speak for the Ankamuthi People and a director of Ipima Ikaya.
· Undated statement of Amanda Ewart and accompanying maps
Ms Ewart has been employed as the Coordinator/Contact Officer for Ipima Ikaya since 2017. She is also married to an Ankamuthi man and her children identify as Ankamuthi.
What are the issues in this inquiry?
Under s 237 of the Native Title Act, the permit will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the Ankamuthi People’s community or social activities in relation to the permit area (s 237(a));
(b)interfere with areas or sites of particular significance to the Ankamuthi 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 permit area (s 237(c)).
I am required 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 permit (see overview of approach in Yindjibarndi v FMG at [15]).
The parties provided an Agreed Statement of Agreed Facts and Issues which sets out information about the permit and the permit area. The Agreed Statement also outlined the issues identified by the parties for determination in this inquiry. For the most part, those issues reflect the matters which arise from s 237.
Given the nature of the evidence, I propose to first consider the areas or sites of particular significance to the Ankamuthi People before addressing the remaining aspects of s 237.
A side issue – Human Rights Act 2019 (Qld)
One of the issues agreed by the parties was whether and in what way I should be informed by the Human Rights Act 2019 (Qld) in deciding this matter. This was an issue initially raised by Ipima Ikaya in its contentions and which both the State and Ipima Ikaya were keen to ventilate at a hearing.
While it accepted the Tribunal is not an entity subject to the application of the Human Rights Act, Ipima Ikaya made a number of contentions about how the Human Rights Act might apply to any decision to grant the permit and the weight that should be afforded to it as part of the State’s regulatory regime. The issues, as articulated in the hearing, included the possibility that, in applying the Human Rights Act, a State decision maker may decide to grant the permit without native title protection conditions.
In its outline of argument for the hearing, the State argued that Ipima Ikaya’s reliance on the Human Rights Act is “irrelevant and apt to confuse matters”. It says the Tribunal is not a public entity under that Act and is not bound to consider matters of human rights under the Human Rights Act. During the hearing, Ipima Ikaya acknowledged that the application of the Human Rights Act as a feature of the State’s regulatory regime has little bearing on the issues in this inquiry, and so it has become a non-issue.
I agree that the application of the Human Rights Act is not a relevant issue for this inquiry. What a State decision maker may ultimately decide, taking into account the Human Rights Act, is not the question before me. What is before me is whether the expedited procedure applies to the particular future act as notified by the State. The State’s notice under s 29 of the Native Title Act stated that it proposes to grant the permit subject to native title protection conditions. In my view, those conditions, which the parties agree are designed to ensure the expedited procedure applies, and which are conditions to which the permit would be subject, inform my consideration of the effect of the grant of the permit. That is certainly the way the parties have argued this matter and, in that sense, native title protection conditions are more than just another aspect of the State’s regulatory regime; they form part of the permit under consideration.
The permit and the proposed native title protection conditions
Latsod has applied for a permit to explore all minerals other than coal. The permit would authorise Latsod to explore for minerals for a term not exceeding five years with the possibility of renewal for a further five years.
In addition to native title protection conditions, the permit and Latsod’s exploration activities would also be subject to a range of other regulatory requirements as set out in the Agreed Statement (at paragraph 15). These include the provisions of the Mineral Resources Act 1989 (Qld) and legislation relating to environmental and cultural heritage protection.
Section 141 of the Mineral Resources Act sets out conditions to which the grant of an exploration permit is subject. These may include conditions determined by the Minister as native title protection conditions: ss 141(1)(j) and 141AA Mineral Resources Act. By definition, in s 141AA(3), native title protection conditions are conditions “about ways of minimising the impact of the permit on native title in relation to the land affected by the permit, including ways of accessing the land and ways anything authorised under the permit may be done”.
Native title protection conditions tend to follow a standard form published by the State and updated from time to time (the NTPCs). At the time the State provided its initial material in this matter, it identified two sets of proposed conditions for the permit. These were version 2 of the Eligibility criteria and standard conditions for exploration and mineral development projects (relating to environmental matters) and version 8.2 of the NTPCs dated October 2021.
Ipima Ikaya later provided version 9 of the NTPCs dated July 2022, but noted during the hearing that the change in version does not alter its contentions. From a comparison of these versions, it appears the differences relate primarily to the fees payable, which I understand are increased annually and have been further updated in July 2023.[1] However, the substance of the NTPCs and the way they operate, which is what is in issue here, remains unchanged.
[1] The current version of the native title protection conditions is available at ‘Native title protection conditions’, Business Queensland (Web Page, 25 July 2022) <>
With its reply, Latsod also provided a copy of Environmental Authority EA0002689 with respect to the permit. The Environmental Authority takes effect on a date to be determined and is conditional on Latsod taking all reasonable steps to ensure the permit complies with the Eligibility criteria and standard conditions.
How do the NTPCs work?
As mentioned, it is agreed between the parties that the aim of the NTPCs is to ensure that the grant of an exploration permit satisfies the requirements of s 237 of the Native Title Act i.e. that a grant subject to the NTPCs will be an act attracting the expedited procedure.
To meet that objective, the NTPCs outline a series of processes including a requirement for the explorer to give a native title party notice of any proposed exploration activities (current for a period not exceeding one year), to meet with the native title party if required and, for certain activities, to undertake field inspections and monitoring. Activities defined as “Agreed Exploration Activities” are not subject to requirements for a field inspection or monitoring. These include activities such as aerial surveys, sampling by hand methods, drilling on land previously the subject of clearing and certain other activities that do not involve clearing. If a native title party fails to respond within the designated timeframes, the explorer may proceed with its proposed activities.
In addition, cl 2.1 of the NTPCs is a general condition which, in summary, prohibits an explorer from carrying out exploration activities if those activities are likely to cause interference or disturbance as outlined in s 237 of the Native Title Act and also prohibits exploration activities being done other than in accordance with the NTPCs. The State referred me to the Land Court of Queensland decision of Pacgold which considered the interpretation of cl 2.1 and I agree with the interpretation outlined in that case at [46]. The relevance of cl 2.1 in the context of my predictive assessment is discussed further below.
As Ipima Ikaya contends, Latsod will be taken to have met its cultural heritage duty of care under the Aboriginal Cultural Heritage Act 2003 (Qld) if it conducts its exploration activities in accordance with the NTPCs: s 23(3)(a)(v) Aboriginal Cultural Heritage Act. The Aboriginal Cultural Heritage Act appears to have little other bearing on the operation of the NTPCs, except in certain circumstances where an explorer finds an Aboriginal Object during exploration activities (cl 9 of the NTPCs).
Ipima Ikaya disputes the notion that the NTPCs meet their stated objective. It raises a number of complaints in the context of this matter, including:
(a)the fact that Latsod may undertake notified activities at any time within a specified period, which may be up to a year;
(b)there being no obligation on Latsod to accept any recommendations arising from a meeting requested by Ipima Ikaya and the inability for Ipima Ikaya to mandate recommendations or obligations based on traditional lore and custom; and
(c)the time restrictions placed on Ipima Ikaya to respond, which it says it is not resourced for and are unreasonable.
Ipima Ikaya says that, where an explorer is conducting activities within the definition of Agreed Exploration Activities, there is no mechanism for a native title party to provide recommendations or obligations based on traditional lore and custom that the explorer must implement. In that context, it says that conducting exploration activities in culturally special areas is unacceptable interference.
Where relevant, I have considered the parties’ arguments on these issues further below.
The permit area
The majority of the land underlying the permit is Aboriginal freehold land under the Aboriginal Land Act 1991 (Qld) held by the Apudthama Land Trust. The Land Trust holds the land for the benefit of Aboriginal People particularly concerned with the land and their ancestors and descendants. There is a very small overlap with a reserve for recreation and camping in the north-westerly corner of the permit. The permit also includes parts of Crystal Creek and extends into the Gulf of Carpentaria in the south-westerly part of the permit.
As already noted, the small portion of the permit area that extends into the Gulf of Carpentaria is not held by Ipima Ikaya, and has, since the objection application was lodged, been determined as part of the Torres Strait Regional Seas Claim. Latsod contends that the permit will only be granted over land above the high water mark. Ipima Ikaya does not agree with that statement but does agree that exploration activities will only be conducted above the high water mark. Neither party has specified the source of these statements, although I note that under the Eligibility criteria and standard conditions, mining activity must not be carried out in an area on the seaward side of the highest astronomical tide.
In the Agreed Statement, the parties agreed that, save in relation to water, exclusive native title exists in the area of the Determinations. While I agree that is the case for the area held by the Land Trust, it is not entirely correct. According to Northern Cape York #3, the native title rights and interests determined in relation to the recreation and camping reserve are non-exclusive. However, nothing particularly turns on that point and the Tribunal’s overlap analysis identifies that Ipima Ikaya holds exclusive native title rights and interests in relation to nearly 86% of the permit area.
What activities does Latsod propose to undertake?
The parties agree that Latsod’s proposed work program, as submitted with the permit application, includes desktop studies, mapping, sample collection and drilling.
The activities outlined in the work program include the taking of 100 samples in year 1 (being a quantity of two kilograms) and contemplates a total of 200 holes being drilled (being a quantity of 2,000 metres); 100 in each of the second and third years. The impact of the 200 drill holes proposed by Latsod is a point of contention between the parties.
Latsod says this work program is the “best case” option and the actual exploration activities will be dependent on progressive results.
In response to concerns raised by Ipima Ikaya about the prospect of the 200 drill holes resulting in 10,000m2 of land being cleared, Latsod contends that exploration will be completed in two phases as follows:
a. Phase 1 – Approximately 6 shallow, (i.e. hand dug via shovel) samples will be extracted. Access to the sites will be via helicopter which will land on existing cleared areas. This form of access will remove the requirement to create any access tracks. The area of disturbance of each sample will be less than 2m2. Each sample site will be immediately rehabilitated on completion. Each sample site will take less than 1 hour to complete.
b. Phase 2 – Subject to satisfactory results from the Phase 1 program, Phase 2 drill testing will proceed. Drilling will be conducted by a tractor-type vacuum machine. Due to the nature of the equipment used, there will be no requirement to create any drill pads and the area of disturbance for each hole will be limited to under 4m2. Each drill hole will be rehabilitated immediately upon completion of the hole. While up to 200 holes may be required, they should all be completed within 1 to 2 weeks and should result in a total disturbance of only 800m2 (i.e. 0.08 hectare. Sampling will only be shallow and will be above the water table. Existing access tracks will be used where possible. Given the nature of the equipment to be used and that existing topography in the testing areas, there should be no requirement to create any additional access tracks.
(As per original)
Latsod’s reply suggests that it has adjusted the scale of the phase 1 sampling program in response to concerns raised during the negotiations with Ipima Ikaya, although there is no evidence to that effect.
Latsod also provided the following additional information about its plans with its reply:
Initially, sampling with EPM 27786 will be conducted via handheld augers. As such, the ground disturbances created by this activity will be negligible and there will be no requirement to create any additional access tracks. If the results of the initial sampling program are successful and the Grantee Party progresses to Stage 2 sampling, the Stage 2 samples will be extracted via a rubber tyre vacuum truck …Where possible, access to the Stage 2 sample locations will be conducted via existing tracks. Given the nature of the topography and the existing vegetation, the Grantee Party are confident that the majority of the Stage 2 sample location points can be selected such that they can be accessed by the vacuum truck without the need to construct any additional access tracks. The Grantee Party agrees that such equipment would be similar to that referred to in the Native Title Party’s submission as utilised by Metallica Minerals at their Cape Flattery Project. The equipment is all wheel drive and equivalent to a medium sized farm type tractor. Should it be necessary to construct any additional access tracks, the Grantee Party will consult with the Native Title Party to determine if the track can be constructed and if so, the specific location and nature of the track.
Ipima Ikaya takes issue with these statements and says there are no existing access tracks or cleared areas for a helicopter to land. Latsod says that if access by helicopter is not possible, then access would be by four wheel drive vehicle and by foot. It says there “should” be no requirement for access tracks to be constructed for Stage 1 activities.
Ipima Ikaya argues that the work program, as provided by the State, is what it must rely on. I tend to agree. While Latsod’s contentions provide some explanation of how it proposes to conduct the activities outlined in its work program, it is the work program which provides the scope of the activities proposed. Latsod says the work program reflects a “best case” scenario but it is nonetheless the only scenario in evidence and it is the basis on which I have considered the question of interference.
Is the grant of the permit likely to interfere with areas or sites of particular significance to the native title holders?
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 (see Dann 1996 at 34–35). Such an area or site must also be known and be able to be located, and the nature of its significance explained (see discussion in Yindjibarndi v FMG at [17]).
What areas or sites of particular significance to the Ankamuthi People have been identified?
The parties agree that the permit area contains areas or sites of particular significance to the Ankamuthi People, but do not necessarily agree on which of the areas or sites identified by Ipima Ikaya are of particular significance for the purposes of s 237(b). The State expresses views on individual sites. Latsod does not appear to dispute the particular significance of any site other than the assertions made with respect to the whole of the permit area, discussed further below.
In its initial contentions, Ipima Ikaya identified three specific areas or sites of particular significance based on the evidence of Ms Sebasio, namely the Women’s Place, the Highway Supermarket Story (Walking Path) and the resting place of the Rainbow Serpent. However, its material also addresses Crystal Creek, Vrilya Point, burial sites and assertions regarding the significance of the whole of the permit area.
Women’s Place
Ms Sebasio describes a sacred women’s area where men are not allowed to go in the southern part of the permit area. The location of the Women’s Place within the permit area is identified on maps SS-5 and SS-7 annexed to Ms Sebasio’s affidavit. She explains, in some detail, the significance of the site in relation to a coming of age ceremony for girls and its ongoing use for that purpose.
The State accepts that the Women’s Place is an area or site of particular significance to the Ankamuthi People and its significance is not disputed by Latsod.
I am satisfied on the basis of Ms Sebasio’s evidence that the Women’s Place is an area or site of particular significance to the Ankamuthi People in accordance with s 237(b).
Crystal Creek
A large part of Crystal Creek runs through the centre of the permit. Ms Sebasio says it is a pristine freshwater creek with its source from bubbling springs. The Ankamuthi People describe the Crystal Creek area as their supermarket as it is abundant in food, including yams, mangrove worms, barramundi, turtles, dugongs, dolphins, stingrays, wallabies, emus, wild pigs and “awunthi” grass (used to make baskets).
The Ankamuthi People’s totem, the freshwater turtle, lives in Crystal Creek. Ms Sebasio says the totem animal is responsible for keeping order in Ankamuthi country and that order will be lost if it is not protected. She says the river area to the west of the high country is sacred to the Ankamuthi People and surviving Dreamtime stories describe how the area was formed. Further, according to the Rainbow Serpent story, the water is healing.
Mr Charles Woosup also refers to an Ankamuthi Dreamtime story about the freshwater turtle associated with the permit area in his video evidence. He says the turtle came out of Crystal Creek inside the permit area and went into the sea and formed Booby Island. He refers to the place the turtle came from as a story place which must be protected and says that no hunting occurs in the story place as it is sacred.
Ms Rebecca Williams also identified Crystal Creek as the home of the freshwater turtle, the Ankamuthi People’s totem. She says that Crystal Creek is an area of special significance to the Ankamuthi People, who know that Crystal Creek has healing properties. She states that “[i]f you are unwell and bath in Crystal Creek, it will heal you”. Ms Ewart’s statement also relays stories regarding the story turtle in Crystal Creek and the connection to Booby Island.
In her video evidence regarding Crystal Creek, Ms Sebasio refers to a birthing area and a men’s ceremony area, but it is not clear whether these are within the permit area. Ms Sebasio also makes reference in her affidavit to the Women’s Place being used as a birthing area in the past but it is not evident that this is the same birthing area referenced in her video evidence. Mr Charles Woosup, in his video evidence, refers to men’s places, some of which he says border on, or extend into, the permit area. On a map of the permit area, Mr Woosup points to where he says a men’s place is located, indicating an area around the river mouth areas labelled “One” and “Two”, discussed below, however there is a lack of clarity around the location of the men’s places. Further, Ipima Ikaya did not make any contentions about the men’s places and they are not sufficiently identified for the purposes of s 237(b).
As I have noted, Ipima Ikaya did not initially contend that Crystal Creek is an area or site of particular significance to the Ankamuthi People, but did so in reply and during the hearing.
There is clearly significance attaching to Crystal Creek and the surrounding area, including as the home of the Ankamuthi People’s totem and as the “supermarket” as described by Ms Sebasio. However, while Ms Sebasio mentions that Crystal Creek is one of the seven creeks and rivers created by the Rainbow Serpent (as does Ms Ewart), there is no particular explanation given as to why the whole of Crystal Creek is of particular significance in accordance with Ankamuthi traditions. Rather, the evidence suggests that some parts of the creek are of particular significance, for example, as Ms Sebasio says, the “river area to the west of the high country” and what Mr Woosup refers to as the “story place”.
During oral submissions, the State argued that the evidence does not go so far as to establish the entirety of Crystal Creek as an area or site of particular significance. It accepts there are parts of Crystal Creek associated with the Rainbow Serpent and accepts the creek’s importance generally and for the Ankamuthi People’s totem, but it argues in effect that this illustrates the distinction between the importance of the creek as a whole and those areas or sites of particular significance on the creek. I do not disagree with those contentions on the evidence before me.
To reinforce this argument, the State also highlights the aspects of Ipima Ikaya’s evidence which indicate that access is permitted to Crystal Creek, for example, for scientists to conduct research and Ms Sebasio’s video evidence to the effect that Ankamuthi elders would need to inspect any areas proposed for drilling. The State contrasts this evidence with the evidence considered in Big Bull at [25] and [29] concerning particular places that could not be touched or disturbed.
In this respect, the State appears to conflate the question of particular significance and the question of likely interference in accordance with a native title party’s traditions. While no doubt relevant, a finding of particular significance is not dependent on evidence that an area or site cannot be entered at all. What constitutes interference with an area or site of particular significance will depend on the evidence regarding the nature of the sites and the native title party’s traditions. The existence of protocols of that type may strongly support a finding that a site is of particular significance, but they are not essential.
Nevertheless, I do not disagree with the State’s conclusion in this instance. The evidence here suggests the existence of areas or sites of particular significance on Crystal Creek (although the location of those areas is not clear). However, I cannot conclude the entirety of Crystal Creek is of particular significance in accordance with Ankamuthi tradition.
Highway Supermarket Story (Walking Path)
Ms Sebasio says the permit area can be accessed on foot through the high country. She says the “old people” used to always walk on foot and they would start at Vrilya Point and walk along the high country to either Crab Island or Injinoo.
There are two walking path routes shown on maps SS-3 and SS-7 annexed to Ms Sebasio’s affidavit. The first route shown on the maps runs from Vrilya Point, outside the permit to the south, through the middle of the permit, crossing Crystal Creek, before turning in a north-easterly direction beyond the permit to Injinoo. The second route also runs from Vrilya Point and follows the same path through the centre of the permit before heading in a westerly direction towards Crab Island, located off the western coast of Cape York. As explained by Ms Sebasio, and as appears consistent with the mapping, the high ground lies between the Jardine Swamps to the east and Crystal Creek which runs through the centre of the permit. Although, as noted, the path as drawn does cross Crystal Creek in about the centre of the permit. The mapping also suggests that there are swamps to the east of Crystal Creek in the southern portion of the permit.
Ms Sebasio says the walking path is sacred to the Ankamuthi People and forms part of their history and Dreaming. She refers to it as an important story place and says the route of the walking paths has been handed down from generation to generation. The story attached to the path teaches the Ankamuthi People all they need to know about their country and how it will provide everything they need.
The walking path follows the high country so that the Ankamuthi People can traverse the land, regardless of the season. Following these paths kept the Ankamuthi People safe and food could always be found. Sites along the paths are used as a guide and can show where to get food and where to rest.
Ms Sebasio also states that there are shell middens, burials, scar trees, story places and sacred sites along the path, but not all have been mapped. She and other Ankamuthi People have received funding for training to enable them to map the Highway Supermarket paths and record all of the cultural heritage on the paths.
Ms Sebasio says that these walking paths cannot be disrupted because the area is bound to the Ankamuthi People’s Dreamtime and history and must remain as they are for future generations.
Latsod did not make any particular contentions regarding the significance of the walking path. However, the State argues that, while there may be sites of particular significance located along the walking path, the evidence with respect to the walking path does not reach the standard required by s 237(b). Again, the State appears to draw a distinction between sites such as the Women’s Place or those considered in Big Bull and the evidence regarding the walking path.
There is no doubt a distinction in the evidence given in those examples, but that does not mean the walking path is not an area or site of particular significance. Ms Sebasio has clearly identified the walking path and explained its particular significance in the context of the Dreaming story. From this, I am satisfied that the walking path associated with the Highway Supermarket story is an area or site of particular significance to the Ankamuthi People. Whether the grant of the permit is likely to interfere with the walking path is a separate question which I have considered below.
Rainbow Serpent Story
Ms Sebasio says that Ankamuthi country is also called Seven Rivers Country, being a name that “comes from the rivers that the Rainbow Serpent made as it travelled north from the Skardon River up to the tip of Australia”.
She says that during the Rainbow Serpent’s voyage from Skardon River, the Rainbow Serpent thought it would finish its journey around the river mouth area at “One” and “Two”, being the mouths of Crystal Creek and another watercourse as shown on the mapping annexed to her affidavit at SS-2, SS-4 and SS-7. Ms Sebasio goes on to say that, as the Rainbow Serpent slithered up the coast, it created the seven creeks and rivers being, from north to south: Cowal Creek, Jardine River, Crystal Creek, Doughboy River, MacDonald River, Jackson River and Skardon River. The whole of the permit does not extend to the coast so “One” and “Two” are not within the permit area but are adjacent to it on the western side.
Crystal Creek is identified as a place where the Rainbow Serpent had planned to stop its journey and the high country within the permit area (being the walking path mentioned above) is said to have been made when the Rainbow Serpent rested and pushed up the country.
Ms Sebasio says that the Rainbow Serpent rested at the land behind “One” and “Two”, although it could not get comfortable in this area, and then got up and shook off. She says that “[w]hen the Rainbow Serpent shook, all the animals and creatures we have today were released onto Ankamuthi country. The Rainbow Serpent provided all of these gifts to Ankamuthi [P]eople. One of the Rainbow Serpent’s gifts was our totem, the freshwater turtle”. Ms Sebasio explains that this story is the reason that Crystal Creek is freshwater even though it is close to the ocean. She says “[t]his area is so special to us, and it is so fragile”.
The trail of the Rainbow Serpent along the coast around “One” and “Two” and the resting place which covers “One” and “Two” and extends into the permit area are shown on the mapping annexed to Ms Sebasio’s affidavit at SS-2, SS-4 and SS-7.
During the hearing, the State accepted that the Rainbow Serpent resting place is a site of particular significance. Latsod does not raise any issue with respect to the resting place.
Ms Sebasio has clearly identified the Rainbow Serpent resting place by reference to mapping and she has explained why this place is of particular significance in the context of the Rainbow Serpent story. On the evidence provided by Ms Sebasio, I am satisfied that the Rainbow Serpent resting place is an area or site of particular significance to the Ankamuthi People, that is partly located in the permit area.
The significance of the permit area as a whole
While not initially singled out by Ipima Ikaya as an area of particular significance for s 237(b), Ipima Ikaya did make a number of contentions to suggest the whole of the permit area is an area of particular significance. This was an issue taken up by the State and Latsod and which the parties agreed is an issue for this determination.
In its outline of argument for the hearing, Ipima Ikaya submitted that the direct evidence of the Ankamuthi People demonstrates there are sites in the permit area that “together constitute an area of significance throughout the whole, or substantially the whole, of the [permit] [a]rea”.
While I understand the point being made here, and what might be the temptation to extrapolate one or more areas or sites of particular significance to the whole of the permit area, it can distract from the task at hand. The Tribunal has similarly been wary of arguments about a tenement area being “site rich” (see, for example, discussion in Hale v Mings Mining at [81]).
Both the State and Latsod accept there are areas or sites of particular significance to the Ankamuthi People within the permit area, but they argue that the evidence does not support such a conclusion for the whole area, and they caution against broad generalisations of significance across large areas. I agree with those contentions.
In order to determine that the whole of the permit area is an area or site of particular significance for s 237(b), I would need to be satisfied of the particular significance of the whole area in accordance with Ankamuthi tradition. The evidence here does not go that far. Ms Sebasio’s evidence includes a number of general statements about the significance of the permit area, but her evidence is primarily directed at the specific areas and sites outlined above. There is no doubt that the permit area and surrounding areas are special to the Ankamuthi People, but the evidence is not sufficient for me to conclude that the entirety of the permit area is an area or site of particular significance for s 237(b).
Vrilya Point (spelt in a variety of ways in the material)
Ms Sebasio says that the Ankamuthi People’s core country is located at Vrilya Point, to the south of the permit. She says that when an Ankamuthi person dies, their spirit returns to Vrilya Point to rest and this spirit will then travel the country the person used to walk whilst they were alive. Ms Rebecca Williams also refers to Vrilya Point as the most sacred place to the Ankamuthi People. The extent to which this evidence relates only to Vrilya Point itself or extends to the area surrounding Vrilya Point is not clear from the evidence.
I note that much of the video evidence provided by Ipima Ikaya was recorded at Vrilya Point and some of those statements similarly speak to the importance of that location and even reference grave sites in the area. However, as Ms Sebasio acknowledges, Vrilya Point is outside the permit area and is located within a mining lease held by another company. During the hearing, the State acknowledged that Vrilya Point is an area or site of particular significance to the Ankamuthi People, while noting it is outside the permit area.
Ipima Ikaya does not make any assertions in relation to the likely interference with Vrilya Point arising from the grant of the permit. Accordingly, while I acknowledge the significance attaching to Vrilya Point, I do not propose to make any finding in relation to it or address it further in these reasons.
Burial sites
In addition to the evidence regarding the significance of Vrilya Point as a resting place for the Ankamuthi People, the evidence provided by Ipima Ikaya also suggests there are burial sites in the permit area. In particular, Ms Ewart mentions a burial cave possibly located at the bottom of the hill ridgeline alongside Crystal Creek. Although Ms Ewart does not reference the maps attached to her statement, one of them marks a “suspected cave burial site” within the permit area. In her video statement, Ms Jennifer Salee also mentions a burial ground north of Vrilya Point in the permit area. It is not clear if this is the same as the suspected burial cave. Overall, the location of any burial sites in the permit area is not clear.
Ipima Ikaya did not specifically address the particular significance of burial sites in its initial contentions. It does refer to the burial sites in its reply, along with other sites of significance, although this appears to be in the context of the risk of interference with those sites as Aboriginal cultural heritage under the Aboriginal Cultural Heritage Act, rather than their particular significance for s 237(b).
In any event, based on the extent of the information provided and the uncertainty regarding the location of any burial sites, I am unable to make any finding regarding burial sites in the permit area for the purposes of s 237(b).
Is the grant of the permit likely to interfere with the areas or sites I have found to be of particular significance?
I have found that the Women’s Place, the walking path associated with the Highway Supermarket story and the Rainbow Serpent resting place are areas or sites of particular significance to the Ankamuthi People in accordance with their traditions.
The question which then arises is whether the grant of the permit is likely to interfere with these sites. This goes to McKerracher J’s observation 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)”.
In its outline of argument, the State says that when, what it calls, the limited nature of the activities authorised under the permit is combined with the effect of the NTPCs and the balance of its regulatory regime, the disturbance or interference to any sites of particular significance would be minimal.
However, s 237(b) is directed to the likelihood of interference, not its scale. As the Federal Court has observed, “… interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) [Native Title Act], may be substantial having regard to the native title party’s traditions” (see FMG vYindjibarndi at [75]). The Federal Court identified this as a clear point of distinction with the nature of interference under s 237(a).
Therefore, even the likelihood of minimal interference, if it is indeed interference in accordance with the native title party’s traditions, would mean the expedited procedure does not apply. In that respect, as Member Kelly observed in Oosen Lewis at [68], the evidence with respect to the relevant lore and customs of the native title party is as relevant as the State regime.
Turning firstly to the Women’s Place, Ms Sebasio’s evidence with respect to what amounts to interference is that “[m]en are not allowed in this area”. Ipima Ikaya contends that Latsod entering this area is a direct interference with the lore and customs that apply there.
During the hearing, the State accepted that if Latsod entered the Women’s Place with men to carry out hand sampling, or indeed any entry at all, that would amount to interference. However, it argues that interference must still be likely and the starting place is the NTPCs, which are “protective” and “preventative” such that interference is not likely, relying also on the operation of cl 2.1. The State seeks to distinguish this matter from Big Bull, but the basis for any distinction is not apparent, other than the gender based nature of the restriction.
Latsod also appears to readily accept that entry into the Women’s Place contrary to the Ankamuthi People’s lore and custom would be interference for s 237(b) and acknowledges, quite correctly, that the procedures set out in the NTPCs are therefore insufficient to mitigate interference with the Women’s Place.
However, Latsod argues that, while it is not required to accept recommendations from Ipima Ikaya for Agreed Exploration Activities and could proceed with its proposed exploration activities in full compliance of the NTPCs, the risk of that occurring is low because it wishes to develop and maintain its relationship with Ipima Ikaya, particularly as it might wish to apply for a mining lease in due course. It says also that it has clearly demonstrated its commitment to developing a strong working relationship with Ipima Ikaya, noting it was Ipima Ikaya which backed out of the earlier negotiations.
Latsod argues that, “it is likely that the parties would in that situation initiate additional protocols over and above the NTPC requirements to ensure that [Ipima Ikaya’s] concerns are minimized”. Later, Latsod says that the consultation triggered by a notification under the NTPCs would result in the amendment of the nature and extent of the proposed activities, particularly in certain areas. It acknowledges that this is beyond the scope of the NTPCs but says that it is in its best interests to comply with reasonable requests from Ipima Ikaya. Latsod says it had already agreed to these types of requirements, and more, during the negotiations between the parties and has demonstrated its good will.
Ipima Ikaya says that it is not enough to just rely on the good will of Latsod and that, under the NTPCs, there is no mechanism for the further negotiation and communication envisaged by Latsod. The appropriate forum for such negotiations, says Ipima Ikaya, is negotiation under s 31 of the Native Title Act.
There are a number of difficulties with Latsod’s contentions. Firstly, I have no evidence of what terms had been agreed between Latsod and Ipima Ikaya but, more relevantly, no agreement was executed. I have already observed that there is no obligation on any of the parties to negotiate in the context of the expedited procedure and no adverse inference is drawn from Ipima Ikaya’s preference to proceed with the inquiry.
More relevantly, the only evidence of Latsod’s intentions for the permit is its work program. The general contentions and assertions made by Latsod about what it will probably do in its desire for a good relationship with Ipima Ikaya does not amount to evidence. In that respect, I also note that a number of Latsod’s contentions about how it would approach its engagement with Ipima Ikaya are, perhaps unsurprisingly, qualified. For example, it refers to being “likely to consent to any reasonable request” of Ipima Ikaya. This view was also drawn out during the hearing when Mr Paul Dostal, a director of Latsod, reinforced a desire to work with Ipima Ikaya but noted, by way of example, that if three quarters of the permit area was excluded from activity that would not be feasible.
Latsod is no doubt well intentioned in its desire to reach an agreement with Ipima Ikaya but that is not the issue here. The issue is whether the grant of the permit subject to the NTPCs is sufficient to mitigate the likelihood of interference with the Women’s Place. Clearly by Latsod’s own submission, it is not. Something more is needed.
There is no certainty that the parties will agree on all matters arising under the operation of the NTPCs. However, as put by the State, the NTPCs provide for recourse to the Land Court of Queensland in certain events. The case of Pacgold, mentioned by the State, which concerned recommendations from the native title party that were not agreed by the explorer, illustrates that point.
The key difference here is that the majority of those procedures do not apply to Agreed Exploration Activities. Managing interference with the Women’s Place based on the arguments put by Latsod and supported by the State depends on the non-binding, qualified statements of intention by Latsod. Good intentions alone are not sufficient to mitigate the risk of interference. The Tribunal has addressed this point on many occasions and, in that respect, I endorse the Tribunal’s comments in Tjiwarl at [67].
It is worth remembering that the object of the expedited procedure is to allow acts, such as the proposed permit, to proceed without the need for good faith negotiations where those acts satisfy the requirements of s 237. Conversely, this means that s 31 negotiations should occur for those acts which do not satisfy s 237. I understand that outcome may be frustrating for Latsod given it had been willingly engaged in negotiations from the outset. However, as discussed, those negotiations were not conducted under s 31 of the Native Title Act.
In addition to relying on the efforts of Latsod to engage with Ipima Ikaya, the State also relies on the prohibition on such activities imposed by cl 2.1 of the NTPCs. It says that, in this case, I can take Latsod’s statements into account, as well as the process under the NTPCs that would require Latsod to give notice of its proposed activities.
Both the State and Ipima Ikaya made submissions in relation to the effect of cl 2.1 during the hearing. The State appeared to accept that cl 2.1 is not of itself determinative of whether or not the expedited procedure applies in any given case. However, it says cl 2.1 is the starting point because any activities which cause interference or disturbance within the meaning of s 237 will render the explorer in breach of the NTPCs. With respect to a question regarding how Latsod would know whether it was in breach, the State said that Latsod now has the benefit of the evidence in this case.
There seems to be something slightly perverse about the State’s suggestion that now that Latsod is aware of the Women’s Place, it can avoid it. The purpose of this process is not to identify a way for a grantee party to avoid the need for s 31 negotiations, but to identify those cases where such negotiations should occur. The Tribunal’s comments in Tjiwarl at [106] are apposite here.
Clause 2.1 clearly reflects the objective behind the NTPCs, but, as the State appears to accept, it is not determinative and for the purposes of a predictive assessment it is difficult to see what work it does in addition to the procedures outlined in the NTPCs.
The very notion underpinning the NTPCs is that if an explorer acts in accordance with the procedures outlined, it will meet the requirements of the expedited procedure. Latsod makes a similar point in its reply about how compliance with the NTPCs has been determined to satisfy the cultural heritage duty of care under the Aboriginal Cultural Heritage Act.
By definition, native title protection conditions are conditions “about ways of minimising the impact of the permit on native title in relation to the land affected by the permit, including ways of accessing the land and ways anything authorised under the permit may be done”. It might be reasonable to question whether cls 2.1(a)-(c) are conditions of that type given they do no more than place an obligation on an explorer by restating the terms of s 237 of the Native Title Act.
While an explorer may find itself in breach of cl 2.1, I am not convinced that cl 2.1 makes interference any less likely. If the procedures outlined in the NTPCs are insufficient to mitigate the likelihood of interference, it is difficult to see how cl 2.1 alone will bridge that gap. As reflected in Latsod’s contentions, this case requires additional negotiation between the parties to prevent interference. That should occur in the context of s 31 of the Native Title Act.
On the evidence, I am satisfied that the grant of the permit is likely to interfere with the Women’s Place.
The position is not as clear for the Rainbow Serpent resting place and the walking path. Ms Sebasio says that the walking path cannot be disrupted, but she does not elaborate on what would amount to disruption. Similarly, aside from referring to the Rainbow Serpent resting place as “special to us” and “so fragile”, there is no discussion of what would amount to interference. In the absence of more specific evidence, I am not satisfied, taking into account the regulatory regime and the procedures outlined in the NTPCs, that interference with those areas or sites is likely.
Is the grant of the permit likely to interfere directly with the Ankamuthi 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 Federal 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].
Ipima Ikaya has provided a large volume of evidence and information with respect to a range of activities conducted in the permit area during the dry season including:
(a)ceremonial and coming of age practices undertaken at the Women’s Place, discussed above;
(b)camping, hunting and gathering;
(c)conducting the Healing Country Program;
(d)participation in the Land Trust’s Ranger Program;
(e)traditional burning; and
(f)the conduct of and participation in scientific, environmental and academic studies (discussed further below in the context of s 237(c)).
Ms Sebasio’s affidavit outlines in some detail the practices undertaken at the Women’s Place and says girls will stay in the area for two weeks and live off the land. They would camp on the high ground where it is safe and gather food from the low areas. Ms Sebasio says her aunties have been through this ceremony and that she will make sure her granddaughters experience the ceremony. However, the currency and frequency of these practices is not clear from the evidence.
Ms Rebecca Williams says that, during the dry season, she and her family spend their free time on the west coast in and around the permit area. She speaks of accessing the permit area by boat via the inlets at areas 1 and 2 identified on the map at RW-2 and discussed above. Ms Williams says that they travel to the permit area to do most of their hunting and fishing and that there is a lot of food in the permit area. She says that hunting does not occur in Crystal Creek as that is where the Ankamuthi People’s totem, the freshwater turtle, lives. The evidence of Ms Sebasio and Ms Ewart also outlines hunting, fishing and gathering activities conducted in the permit area, as do a number of the video statements.
Ipima Ikaya describes the Healing Country Program as “a community and social program that engages the Ankamuthi [P]eople on their traditional lands and allows them to share their traditional healing practices with vulnerable Australians. In this program, the Ankamuthi community engages with service personnel and their subset community of personnel suffering psychological hardship or trauma”. Ipima Ikaya notes this program is based on the Ankamuthi People’s “knowledge of the land and traditional healing practices”. Latsod recognises these activities and says that, while the conduct of exploration activities may at first appear contradictory, compliance with the NTPCs and the Environmental Authority should result in minimal or negligible impact.
Activities associated with the Ranger Program include campground management, removal and recording of ghost nets, weed and fire management, and pest management. According to Ms Sebasio, aerial feral pig culling is conducted twice a year which benefits the turtle population as the pigs eat the turtle eggs and the freshwater turtles in Crystal Creek. Ms Angelina Williams gives similar evidence in her video statement. Ms Ewart states that traditional owners accompany rangers and Australian Quarantine and Inspection Service biosecurity staff both in the helicopter and on the ground during these culls.
It is generally accepted by Latsod and the State that the Ankamuthi People undertake community and social activities in the permit area. While not specifically mentioned in the Agreed Statement, this position was reflected in those parties’ contentions and was confirmed during the listing hearing.
However, while the State and Latsod do not generally dispute the conduct of these activities, they do dispute the likelihood of direct and substantial interference by Latsod’s exploration activities.
On the question of likely interference, Ipima Ikaya contends, and Latsod agrees, that the permit area is significantly affected by seasonal weather patterns and is largely inaccessible during the wet season between November and May each year. The consequence of this, on which Ipima Ikaya and Latsod also appear to agree, is that most of the Ankamuthi People’s activities are conducted in the dry season, which is also when Latsod would be looking to undertake exploration activities.
Other issues raised by Ipima Ikaya are:
(a)safety concerns in the event Latsod conducts exploration activities while aerial pig shooting and traditional burning occur; and
(b)that, as the State accepts, activities at the Women’s Place cannot be determined in advance.
In its initial contentions, the State said very little in the way of argument about how the NTPCs would mitigate interference. It simply argued that the limited scope of the proposed exploration activities combined with the NTPCs, particularly the notice requirements and the Aboriginal Cultural Heritage Act, mean that direct interference is unlikely to be substantial. The State does not explain in any detail how the Aboriginal Cultural Heritage Act would apply to mitigate interference with community and social activities.
One of Ipima Ikaya’s complaints about the NTPCs is the limited scope of matters on which the explorer is required to engage with the native title party and the lack of a framework for broader communication and consultation between an explorer and native title party. This seems to be a fair observation because, although it is accepted by the parties that the aim of the NTPCs is to ensure the grant of a tenement satisfies the requirements of s 237, there is very little in the procedures outlined in the NTPCs aimed at minimising interference with a native title party’s community or social activities. Apart from the initial meeting, most of the procedures are directed at cultural heritage protection. I note the Tribunal has made similar observations in Gamboola at [46] and Lithium Australia at [45].
Latsod says that compliance with the NTPCs and subsequent negotiation and communication between the parties via the NTPCs should be adequate to address any issues arising.
The evidence is clear that Ankamuthi people undertake a range of community and social activities in the permit area, particularly during the dry season, but much of the evidence is fairly broad and general in nature or lacks detail regarding frequency. While I accept that the conduct of exploration activities by Latsod may interfere with those activities from time to time, I cannot conclude on the evidence that direct interference is likely to be substantial, given the procedures outlined in the NTPCs. Many of those procedures do not apply to Agreed Exploration Activities, however, exploration activities of that nature do not seem likely to result in the type of interference with which s 237(a) is concerned.
Is the grant of the permit likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
Major disturbance for s 237(c) is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people (see Little v Oriole Resources at [52]–[54]). I can also have regard to the context of the relevant grant, including previous land use and the characteristics of the land and waters. The word “major” has been described as an adjective of degree in respect of which the Tribunal must make a value judgment: Wilcox J in Dann 1997 at 395. Wilcox J goes on to say that the Tribunal must:
consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a “major disturbance” even if it would be unimportant to non-Aboriginals.
In terms of my predictive assessment, I am also mindful of French J’s comments in Smith v Western Australia at [23] that “[t]he [Native Title Act] is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the [Native Title Act]. That protection is not to be narrowly construed”.
As noted, Ipima Ikaya holds exclusive native title in relation to the majority of the permit area. A central theme in the evidence provided by Ipima Ikaya is the pristine and untouched nature of the permit area and the significance of that environment to the Ankamuthi People’s lore and custom, including, for example, the freshwater turtle totem found in Crystal Creek and the spiritual attributes of sand. The video evidence taken at Crystal Creek and the satellite imagery provided illustrates its unspoiled nature. Further, the evidence highlights some of the lengths Ipima Ikaya has taken to keep it that way, including its efforts to prevent unauthorised entry by tourists, which both Ms Ewart and Ms Rebecca Williams say led to degradation of the area. A number of the video statements by Ankamuthi People refer to the pristine nature of the permit area and the desire for it to be left untouched. None of that evidence appears to be disputed by the State or Latsod, and the State’s material indicates there have been no tenements previously granted in the permit area.
Ms Rebecca Williams also outlines her role as part of a CSIRO project monitoring Ankamuthi land care with a view to establishing a national standard of how to care for country. She says that the conduct of exploration activities “completely contradicts all our work that we are doing for this project” and expresses concern that the opportunity for this work may be lost if exploration activities are not conducted correctly.
In its initial contentions, Ipima Ikaya made a number of contentions about the impact of the permit on land and waters and why those impacts amount to major disturbance.
Ipima Ikaya provided mapping which indicates that much of the permit area falls within a Queensland wetland of importance, although it does not give any further explanation of that categorisation. It also provided an Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) Protected Matters Report which it says relates to the permit area. The area of the report is not disclosed on the face of the document which simply refers to “the area you have selected”, but that does not appear to be in issue. Amongst other matters, the Protected Matters Report identifies that the area includes a nationally important wetland, being the Jardine River Wetlands Aggregation. Again, there is no detail of this categorisation but I gather that it may be the same wetland referenced on the Queensland mapping. The Protected Matters Report identifies a number of matters of national environmental significance, including 35 threatened species and 46 migratory species.
Ipima Ikaya also cites Queensland government documents relating to the vulnerability of the Ducie Catchment (as a groundwater dependent ecosystem), which appears to cover part of the permit area.
In relation to water, Ipima Ikaya argues that Latsod’s drilling program would permanently impact the Ankamuthi People’s cultural sites and practices rooted in Crystal Creek and adversely affect the habitat of the Ankamuthi People’s totem animal, the freshwater turtle. However, a number of these arguments appear to be speculative or based on fears or concerns, rather than evidence.
In addition, Ipima Ikaya is concerned that Latsod’s exploration activities may deprive the Ankamuthi People of the ability to conduct ongoing scientific and environmental studies in a pristine environment. Ipima Ikaya provided evidence in relation to a proposed study of freshwater turtles by Biomatix for the Australian Government, in which it says the Ankamuthi People are keen to participate. Ipima Ikaya contends this study is to be conducted in the Crystal Creek area within the permit area, although that is not specified in the letter from Biomatix or in Ms Ewart’s statement which refers to the study.
There is evidence of two scientific studies in which the Ankamuthi People participated and which it says were conducted in the Crystal Creek area. These studies are outlined in the Jardine River Turtle (Emydura Subglobosa Subglobosa); Summary of Five Years of Survey and Monitoring on Cape York Peninsula, Queensland report and the Freshwater fish survey of the Jardine River catchment, Cape York report. While not entirely clear, the study area for the Jardine River Turtle survey appears to have included a small number of locations in the permit area. However, the sites surveyed in the Freshwater fish survey do not appear to have been inside the permit area.
I accept from the evidence provided that there is scientific interest in the area in and around the permit and that Ankamuthi People participate in these studies, although the area of interest does not appear to be confined to the permit area and there is no clear evidence that the conduct of Latsod’s exploration activities would be of such an impact so as to prevent future studies.
In relation to land, Ipima Ikaya argues that Latsod’s work program, particularly drilling 200 holes, clearing drill pads and clearing access tracks to the 200 drill sites will create major disturbance.
Ipima Ikaya contends that the drilling of 200 holes will result in 10,000m2 of land being cleared. This is disputed by Latsod as outlined in its contentions extracted at [43] above. However, there is no evidence to support either position. Ipima Ikaya also raises concerns regarding the effect of decommissioning the 200 holes proposed by Latsod by cementing them. It relies on what I understand to be sch 6, pt 3, s 3(a) of the Environmental Protection Regulation 2019 (Cth), although that provision appears to apply only to small scale mining activities. In any event, the Eligibility criteria and standard conditions contains conditions for decommissioning. Neither the State nor Latsod has responded to these contentions regarding the requirements for decommissioning the holes.
Ipima Ikaya calculates that, to conduct its drilling program, Latsod would need to clear over 21 kilometres for tracks. This is disputed by Latsod which says because it is using a vacuum truck for drilling, no specific drill pad will be required and most drill holes will not require the construction of an access track. It says that minor vegetation clearing (removal of sticks, logs and branches) may be needed to transport the truck to the drill location, but that in most cases this will not involve the removal of trees. Even taking Latsod’s contentions at face value, it follows that some drill holes are likely to require the construction of an access track.
One of the other issues of concern to Ipima Ikaya is the impact of Latsod’s exploration activities on sandy areas. Ms Rebecca Williams says that Latsod expressed interest in sand during the negotiations and Ipima Ikaya predicts sand will be the focus of Latsod’s drilling program. Latsod has not disputed this evidence. Both Ms Rebecca Williams and Ms Jennifer Salee, in particular, express grave concerns regarding the impact of the taking of sand. Ms Rebecca Williams highlights the importance of sand to the Ankamuthi way of life, including advice from her late grandfather about how the sand works like a sponge, retaining water during the wet season and releasing it during the dry season. She says that if holes are drilled in the sand it will become brittle. Ms Salee speaks to cultural and spiritual consequences of taking sand as part of the Ankamuthi People’s culture and lore. She says that Ankamuthi People are “made from sand” and “go back to sand” and that taking sand is like taking a spiritual being.
The State argues that Latsod’s activities would not cause major disturbance by the standards of the Australian community. Ipima Ikaya disagrees. It says people travel from across Australia to visit the pristine areas remaining in Cape York and cites a Department of Environment and Science webpage regarding the potential listing of Cape York Peninsula as a world heritage area.
Latsod contends that its proposed activities “should result in only a minimal disturbance to the environment”. It says it is not yet sure it will need to conduct any exploration activities in close or immediate proximity to Crystal Creek, although it does not rule it out. Latsod says any such activities will be included in the notice and consultation processes under the NTPCs, which it says should result in appropriate amendments to the work program and remove any concerns. Latsod stresses that exploration is not expected to occur below the water table.
Latsod says that the impact to Crystal Creek will be negligible and considers the overall impact of each drill hole will be minimal. It says the potential impact will be further minimised by progressive and immediate rehabilitation and its ongoing communication with Ipima Ikaya. Latsod also relies on the processes under the NTPCs supplemented by its willingness to consult with Ipima Ikaya. It again acknowledges that “some of these protocols are over and above the NTPC requirements and therefore may not be enforceable by law”, but restates its commitment to undertake additional consultation. I have already addressed the reasons why those statements of good intention are not sufficient to mitigate the risks for s 237 and the limitations inherent in the NTPCs, which are primarily focused on cultural heritage protection.
While I consider some of Ipima Ikaya’s arguments are speculative, the drilling and other activities proposed by Latsod will no doubt result in physical disturbance to the area. There will be vehicles traversing the permit area and the need to clear at least some tracks. There will be holes drilled (up to 200) and they will need to be decommissioned and rehabilitated.
In terms of the matters I can take into account for s 237(c), there are a number of factors I can draw from the evidence, including that:
(a)the permit area is one of natural beauty and environmental values;
(b)there is no evidence of prior mineral or other development of the permit area and it appears to remain largely undisturbed;
(c)Ipima Ikaya holds exclusive native title in relation to the majority of the permit area;
(d)the permit area is of considerable importance to the Ankamuthi People and holds particular cultural and spiritual significance, including in relation to sand;
(e)Ankamuthi People undertake, or participate in, a range of activities in the permit area, particularly during the dry season, which is when exploration will occur (cf Karinga Lakes at [234]);
(f)Ankamuthi People are actively engaged in protecting and preserving the cultural and environmental values of the area (which echoes comments in MNRv FMG at [163]); and
(g)there is evidence of an important wetland in the permit area.
In that context, having regard to the test for s 237(c), my conclusion is that the grant of the permit, even with the NTPCs and other regulatory controls in place, is likely to involve major disturbance. Similar to MNR v FMG at [166], and as acknowledged by Latsod, consultation over and above the processes under the NTPCs will be required. I have already addressed the limited utility of cl 2.1 of the NTPCs in this context.
Conclusion
I have concluded that the grant of the permit is likely to interfere with the Women’s Place, being an area or site of particular significance to the Ankamuthi People and is likely to involve major disturbance. It follows that the grant of the permit is not an act attracting the expedited procedure. Ipima Ikaya, Latsod and the State are required to negotiate in good faith with a view to obtaining Ipima Ikaya’s agreement to the grant of the permit in accordance with s 31 of the Native Title Act.
I am not satisfied on the evidence that the grant of the permit is likely to cause direct, substantial interference with the Ankamuthi People’s community and social activities, taking into account the operation of the NTPCs and other regulatory controls.
Determination
I determine that the grant of the exploration permit for minerals EPM27786 is not an act attracting the expedited procedure.
Nerida Cooley
Member
15 August 2023
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