Ipima Ikaya Aboriginal Corporation RNTBC v Silica Australia Pty Ltd - [2023] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Ipima Ikaya Aboriginal Corporation RNTBC v Silica Australia Pty Ltd and Another [2023] NNTTA 38 (24 November 2023)

Application No:

QO2022/0055

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

Ipima Ikaya Aboriginal Corporation RNTBC (QCD2014/017; QCD2017/005)

(native title party)

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Silica Australia Pty Ltd

(grantee party)

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State of Queensland

(Government party)

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

Tribunal:	Ms Nerida Cooley
Place:	Brisbane
Date:	24 November 2023

Catchwords:	Native title – future act – proposed grant of exploration permit for minerals – expedited procedure objection application – presumption of regularity – 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 Ceremony Place as a site or area of particular significance – Rainbow Serpent resting place as a site or area of particular significance – Highway Supermarket story as a site or area of particular significance – burials 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 Land Act 1991 (Qld) Mineral Resources Act 1989 (Qld) s 402 Native Title Act 1993 (Cth) ss 31, 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’) 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 Determination’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC and Another [2014] FCA 1335; (2014) 227 FCR 182 (‘FMG v Yindjibarndi’) Ipima Ikaya Aboriginal Corporation RNTBC v Latsod Pty Ltd and Another [2023] NNTTA 24 (‘Latsod’) Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) FCR 576 (‘Little v Oriole Resources’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘MNR v FMG’) Murray v Western Australia and Another [2011] NNTTA 91; (2011) 257 FLR 450 (‘Murray v Money’) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (‘Ngarlawangga and FMG’) Rosas v Northern Territory of Australia and Another [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver and Others v Northern Territory of Australia and Others [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver’) 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’) Wintawari Guruma Aboriginal Corporation v Yandan Gold Mines Pty Ltd and Another [2020] NNTTA 52 (‘WGAC v Yandan’) 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:

Brian Martin, Hetherington Exploration & Mining Title Services (QLD) Pty Ltd; Trenton Clark, Silica Australia Pty Ltd

Representatives of the Government party:

Marc McKechnie of Counsel; Emma Brunello, Crown Law; Chris Rawlings, Department of Resources

REASONS FOR DETERMINATION

Silica Australia Pty Ltd has applied for the grant of an exploration permit for minerals (EPM28074) over about 64 square kilometres of land and waters along the western coastline of far northern Cape York, in the State of Queensland.
Ipima Ikaya Aboriginal Corporation RNTBC holds native title in relation to the majority of the permit area in trust for the common law holders of native title, whom they recognise as the Ankamuthi People (see Northern Cape York Group #1 and Northern Cape York #3).
A sizeable portion 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. The northern portion of the permit is covered by a reserve for recreation and camping and the permit also includes parts of Crystal Creek and extends into the Gulf of Carpentaria to the west.
Ipima Ikaya holds exclusive native title rights in relation to the area held by the Land Trust (save in relation to water where the rights are non-exclusive) and non-exclusive native title rights in relation to the reserve. Native title in relation to the remainder of the permit area which extends into the Gulf of Carpentaria is held in accordance with the Torres Strait Regional Seas Claim Determination but is also Ankamuthi country.
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. It considers the grant of the permit is an act attracting the expedited procedure under s 237 of the Native Title Act 1993 (Cth), a proposition to which Ipima Ikaya objects.
Whether the grant of the permit is an act attracting the expedited procedure turns on whether it is likely to interfere with areas or sites of particular significance to the Ankamuthi People in accordance with their traditions, directly interfere with the Ankamuthi People’s community and social activities or cause major disturbance within the meaning of the Native Title Act.
Both the State and Silica agree that there are areas and sites of particular significance to the Ankamuthi People in the permit area and that the Ankamuthi People undertake community and social activities within that area. However, they contend that the operation of the native title protection conditions and the State’s regulatory regime mean that interference, or major disturbance, within the meaning of s 237 of the Native Title Act, is unlikely. Ipima Ikaya argues that those conditions and regulatory controls are insufficient to prevent the likelihood of such interference or disturbance, and also disputes the extent to which future compliance by Silica can be presumed due to the past conduct of Mr Trenton Clark, a director of Silica.
For the reasons given below, I have concluded that the grant of the permit is not an act attracting the expedited procedure.

What are the issues in the 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, as well as the issues for determination identified by the parties. The issues listed broadly reflect s 237, although the parties did single out an issue regarding the extent to which the past conduct of Mr Clark bears on the so-called “presumption of regularity” with respect to regulatory compliance. I have addressed that issue from [17] below.

Similarities with the Latsod decision

Part of the eastern boundary of the permit abuts the tenement I considered in the recent decision in Latsod, which also involved Ipima Ikaya as the native title party. There are a number of similarities between these matters including the native title rights held by Ipima Ikaya, areas or sites of particular significance to the Ankamuthi People which extend into both tenements, common underlying tenure, similar community or social activities undertaken by the Ankamuthi People, and the natural environment. In addition, both the State and Ipima Ikaya raise similar arguments in relation to the likelihood of interference or disturbance for the purposes of s 237.
Where relevant, I have referred to or relied upon parts of my analysis in Latsod.

The permit and the regulatory environment

Silica has applied under the Mineral Resources Act 1989 (Qld) for a permit to explore for all minerals other than coal. The permit would authorise Silica to explore for minerals for a term not exceeding five years with the possibility of renewal for a further five years. Silica’s interest is in silica sand.
In addition to native title protection conditions, the permit and Silica’s exploration activities will also be subject to the Eligibility criteria and standard conditions for exploration and mineral development projects, as well as a range of other regulatory requirements as set out in the Agreed Statement (at paragraph 22). These include the Mineral Resources Act and legislation relating to environmental and cultural heritage protection.
The parties agree that the native title protection conditions under the Mineral Resources Act “are conditions about ways of minimising the impact of the permit on [n]ative [t]itle 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”. In Latsod at [30]–[33] I outlined the operation of the State’s standard form native title protection conditions (NTPCs), including the relevance of activities defined as “Agreed Exploration Activities”, which may be done without the need for a cultural heritage inspection. The State provided version 9 of the NTPCs but, as was the case in Latsod, I understand the current version is version 10 dated July 2023.[1] The differences between these versions are not material for present purposes and the operation of the NTPCs as outlined in Latsod applies equally here.
[1] The current version of the native title protection conditions is available at ‘Native title protection conditions’, Business Queensland (Web Page, 25 July 2022) <

The presumption of regularity

As mentioned, the relevance of Mr Clark’s prior conduct to the presumption of regularity was one of the issues identified by the parties in the Agreed Statement. Each of the parties made fulsome submissions on this issue.

What is the presumption of regularity?

Mineral exploration is a highly regulated industry. The permit is a creature of statute, governed by its terms and conditions, as well as relevant regulatory controls. The point of this inquiry is to consider whether the grant of the permit is an act attracting the expedited procedure. It follows that the terms and conditions and statutory requirements or restrictions attaching to the permit are relevant to that analysis as they go to its very nature and scope.
All things being equal, the Tribunal will conduct its predictive assessment on the basis that a grantee party will comply with the terms and conditions of the permit and other regulatory requirements as it is bound by law so to do. In Tribunal proceedings this approach has become known as the “presumption of regularity”, although it is more correctly an approach to the facts rather than a legal presumption.
As explained in Murray v Money:
[53]In my view the Government party’s contentions relating to whether it is appropriate for the Tribunal to rely on a presumption of regularity should be accepted. In particular I accept the Government party’s contentions … that there is a presumption of regularity established by the Tribunal in expedited procedure objection matters determined by it under the right to negotiate provisions of the NTA, which is not the presumption of regularity referred to in Kingham v Sutton … It is not a legal presumption but an approach to the facts which is appropriate on the evidence. It does not fetter the Tribunal’s powers or discretion.
[54]The words ‘presumption of regularity’ have a special meaning in the Tribunal’s determinations under the right to negotiate provision of the NTA. What is meant by the words in this context has been well established since the determination in Smith/DP Franklyn and often repeated by the Tribunal since. Despite the substantive issue of the Tribunal’s reliance on the Government and grantee parties acting lawfully in assessing the effectiveness of the Government party’s regulatory regime being before the Federal Court, no adverse comment has been made by the Court on the Tribunal’s approach. I can see no impediment to continuing use by the Tribunal of this well established term.
[55]I observe that in Ward/Carr J, in the passages quoted above, there is reference to ‘drawing an inference’ about the grantee party acting lawfully. However, whether a finding that the Government and grantee parties will act lawfully is considered generally by reference to a specially defined presumption of regularity or is an inference made from the facts, the practical result is the same.
[56]In my view, the issue raised by the native title party comes down to one of semantics. Whatever legal approach is used (presumption of regularity or inference from the facts), expedited procedure objections are to be determined on the basis, that in the absence of evidence to the contrary, the Tribunal will presume that both the Government and grantee parties will act lawfully. On that basis the State’s regulatory regime relied on is a relevant factor to be considered in deciding whether the expedited procedure is or is not attracted.
[57]It needs to be emphasised, as is clear from the Tribunal’s determinations quoted above, that even if the presumption of regularity is applied this does not mean that the inevitable result will be a determination that the expedited procedure is attracted. The lawful adherence to the State’s regulatory regime is a relevant but not a decisive factor …
For convenience, I will use the term presumption of regularity because it is understood in this jurisdiction. I do have some issues with the appropriateness of the expression given what is outlined above, but it is probably fair to say that horse has bolted.

What did Mr Clark do, and does his conduct affect the presumption of regularity?

The primary conduct in question is Mr Clark’s removal of a small (“coke bottle” sized) amount of sand for testing from an area on the beach at Slade Point opposite Crab Island, off the western coast of Cape York on 20 July 2021. This activity occurred following consultation with Ipima Ikaya during June and July 2021 and was monitored by an Ankamuthi person. Mr Clark had the sample tested but the results were unconvincing and, after further discussion with Ipima Ikaya, Mr Clark asked Ipima Ikaya to facilitate the taking of additional samples. Mr Clark provided Ipima Ikaya with material for sample collection to enable samples of about five kilograms to be returned for testing. Mr Clark’s instructions to Ipima Ikaya were quite specific and included a suggestion from the geologist to “try to dig down around one meter so it gets the sand below the organic level”.
It is worth noting that at the time of Mr Clark’s initial engagement with Ipima Ikaya in June 2021, he identified himself as a director of a company called Valesco Capital Pty Ltd. In his evidence, Mr Clark says he planned and arranged a Teams meeting and slideshow presentation to allow Silica to introduce itself to Ipima Ikaya, although nothing in the material indicates Silica was identified at that time and Silica’s permit application was not lodged until 8 October 2021. Nonetheless, as evidenced by the slideshow presentation, Mr Clark’s actions were undertaken in the context of the future permit application and identified the need for a special purpose vehicle. According to the Resource authority public report for the permit provided by the State, Mr Clark is also the authorised holder representative for the permit, so his conduct is not without relevance.
There is no question that Mr Clark’s conduct in taking and testing the sample and asking Ipima Ikaya to facilitate the taking of additional samples, was highly irregular. Under s 402 of the Mineral Resources Act it is an offence for a person to carry on prospecting or exploration without the appropriate authority (such as the permit), or to employ or suffer any other person so to do.
It seems that once Ipima Ikaya obtained legal advice, the significance of Mr Clark’s actions was identified and reported to the State’s Department of Resources on 19 May 2022. The reason for the delay in reporting the incident to the Department is not clear.
On 1 August 2022, following an investigation, the Department issued Mr Clark with a warning notice which also foreshadowed further enforcement action if Mr Clark should be found in contravention of resources legislation in the future. Mr Clark says that the Department informed him that his breach was technical and minor.
On 3 August 2022, the Department sent Ipima Ikaya a Notice of Outcome of Investigation document which stated that the Department found that Mr Clark had contravened s 402 and issued a warning notice. From the Department’s perspective, that appears to have been the end of the matter.
The area from which Mr Clark obtained the sample was outside the permit area and, as it turns out, within Restricted Area 429, being an area restricted for mining tenements, although that is beside the point. Wherever it may have occurred, the conduct offended s 402 of the Mineral Resources Act.
Ipima Ikaya contends that Mr Clark’s conduct suggests that he does not feel the need for strict compliance with the legal processes and procedures concerning exploration activities and, therefore, I should not presume future compliance on the part of Silica. Similarly, Ipima Ikaya says that it does not have confidence in the Department to adequately enforce the NTPCs or its regulatory regime, or to control Silica’s activities.
Ipima Ikaya argues that Mr Clark was clearly aware of the need to apply for the permit because it was foreshadowed in the slideshow presentation given to Ipima Ikaya (mentioned above). It also contends that Silica only made the permit application once Ipima Ikaya refused to take the samples and notes that the State notified the permit subject to the expedited procedure during the course of the investigation because the warning notice was issued two months into the notification period which commenced on 8 June 2022.
As discussed during the hearing, Ipima Ikaya asks me to draw an inference from Mr Clark’s past conduct in making my predictive assessment. It says that it is not making any allegations of dishonesty or fraud against Mr Clark and does not say he is dishonourable, but it is relying on the fact that the conduct occurred, saying it is cogent that an officer of Silica has previously not complied with the regulatory regime.
Mr Clark refers to his breach as minor and technical, which seems to echo the feedback he says he had from the Department. In his evidence Mr Clark explains that he has almost 20 years’ experience in owning and operating sand mines and quarries and has never before been in breach or committed an infringement. However, he explains that his experience is primarily with operational mines and quarries, and he was therefore unfamiliar with the processes for obtaining a tenement. He says his actions in engaging with Ipima Ikaya were part of working through the process and his priority was to make sure everything was done with the support and approval of Ipima Ikaya.

During the hearing Mr Clark said he was devastated by the investigation. He takes Ipima Ikaya’s submissions personally and finds them aggressive and unfair, particularly to the extent it says that he only pursued lawful options when unlawful options had been exhausted. Ipima Ikaya acknowledged that its written submissions were put in “robust” terms and submitted that its oral submissions should be preferred over the written submissions.
In relation to how it will conduct itself going forward, Mr Clark’s evidence includes a number of undertakings to the effect that Silica will ensure it avoids interference with areas or sites of particular significance and community or social activities. These undertakings are discussed further below.
The State sees this as a serious issue. It contends that Silica has provided clear undertakings, and that evidence is relevant unless it is shown it could not be trusted. This, it says, is a commitment to comply with cl 2.1 of the NTPCs. The State contends that the Tribunal should be slow to draw an inference or otherwise conclude that Mr Clark should not be believed, or his evidence is somehow outweighed by prior conduct. As to the past conduct, the State says the conduct was minor and a warning notice issued.
I understand that Mr Clark’s actions have led to an erosion of trust between Silica and Ipima Ikaya. That is unfortunate, but not irretrievable. I do find Mr Clark’s conduct concerning and I understand why it does not fill Ipima Ikaya with confidence, particularly when Mr Clark is, by his own admission, unfamiliar with the exploration process. I expect the whole episode has been a salutary lesson for Mr Clark.
Mr Clark made what I consider to be a serious error. It may have been of a relatively minor scale, but I would not describe it as merely technical in nature. Nonetheless, the breach was investigated by the Department and a decision made about the level of sanction required. Mr Clark has explained the reasons for his actions. On one view, after being investigated and put on notice by the Department, Mr Clark may now have a heightened awareness of the risk of non-compliance. He has made commitments by affidavit regarding Silica’s compliance with the NTPCs and the State’s regulatory regime. Further, as Silica points out, Mr Clark actively engaged with Ipima Ikaya, so however misguided aspects of his conduct, it does not portend non-compliance with the NTPCs.
In my view, there is an insufficient basis here to wholly disregard the efficacy of the conditions attaching to the permit and the State’s regulatory regime, and I will take those factors into account in my predictive assessment.

Is the grant of the permit likely to interfere with areas or sites of particular significance to the native title holders?

Given the nature of the evidence in this case, I propose to first consider the areas or sites of particular significance to the Ankamuthi People before addressing the remaining aspects of s 237.
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]). Even minimal interference, such as entry onto an area or site, may amount to interference for s 237(b), depending on the evidence (see FMG v Yindjibarndi at [76]).
In its contentions, Ipima Ikaya identifies a number of areas or sites of particular significance to the Ankamuthi People in the permit area, relying on affidavit evidence from Ms Sandra Sebasio, Mr George Ropeyarn and Mr Tapee Salee. In its reply, Ipima Ikaya says this is a non-exhaustive list, but that is of no import as I cannot make findings in relation to unidentified sites.
As mentioned, both the State and Silica accept that there are areas or sites of particular significance to the Ankamuthi People in the permit area. While the agreed areas and sites are not listed in the Agreed Statement, the parties appeared to broadly agree in the hearing that the areas or sites in question are those outlined in Silica’s outline of argument. I have considered each of those areas or sites below.

What are the areas or sites of particular significance in the permit area and what would constitute interference with those areas or sites?

Women’s Ceremony Place

The Women’s Ceremony Place is shown on the mapping adjacent to Crystal Creek in the southern half of the permit area. While Mr Ropeyarn identifies the site and its location, he does not elaborate on its particular significance due to the nature of the site. Ms Sebasio does explain the particular significance of this place. This aspect of her evidence is subject to non-disclosure directions and, given the particular significance of the Women’s Ceremony Place is agreed, it is not necessary for me to include any additional detail in these reasons.
In relation to interference with the Women’s Ceremony Place, Ms Sebasio says that “ceremony places are not for miners” and expresses concern that non-Ankamuthi People accessing the area will be bad for the Ankamuthi People.
I am satisfied on the evidence that the Women’s Ceremony Place shown on the mapping annexed to the affidavits of Ms Sebasio and Mr Ropeyarn is an area or site of particular significance for s 237(b) of the Native Title Act.

Oopudhi (Rainbow Serpent) resting place

Both Mr Ropeyarn and Ms Sebasio speak to the sacred nature of the Rainbow Serpent resting place, which is located in and around Crystal Creek in the south-easterly corner of the permit area. It is clear from the mapping that this is the northern part of the resting place that I considered in Latsod at [73]–[79].
In relation to interference with the resting place, Ms Sebasio says “[y]ou cannot just take from this area” and “the Explorer cannot go in there and do whatever he wants”, just as Ms Sebasio cannot. Ms Sebasio says further that “Ankamuthi lore is that we don’t disturb our Country” and expresses concern about the consequences of drilling, including people becoming unwell.
Mr Ropeyarn says that only Ankamuthi People or people who have been invited can go in this area, saying that the “Rainbow [S]erpent resting place is an area we protect”.
I am satisfied, as I was in Latsod, that the Oopudhi (Rainbow Serpent) resting place is an area or site of particular significance to the Ankamuthi People.

Highway Supermarket Story (Walking Path)

The walking path was also considered in Latsod from [65] and found to be an area or site of particular significance. According to the mapping annexed to the affidavit of Ms Sebasio, the westerly walking path, which heads towards Crab Island, passes through the permit area.
In relation to what would constitute interference with the walking path under Ankamuthi traditions, Ms Sebasio says that “[t]his story place is part of our identity and cannot be disturbed”, which is similar to the evidence considered in Latsod at [70].
The particular significance of the walking path is agreed and, consistent with my findings in Latsod, I am satisfied that the walking path is an area or site of particular significance to the Ankamuthi People.

Burial sites

Mr Ropeyarn deposes to two burial sites in the north of the permit area shown on the mapping annexed to his affidavit as two hatched areas, each which also extend beyond the permit. Ipima Ikaya contends that the hatched areas encompass both the graves and surrounding areas which are part of the same cultural space.
One of these grave sites is located near what Mr Ropeyarn calls the “shooting swamps” in the north of the permit area. I take this to be the northernmost of the burial sites, as it appears to be near swamps indicated on the mapping.
Mr Ropeyarn says the other grave had to be relocated above the high-water mark into the permit area, a process which was accompanied by the conduct of a gravesite ceremony. Mr Ropeyarn says that, while this grave had been fenced, the fence is “long gone” and Silica would not be able to identify the site.
Mr Ropeyarn says you cannot disturb anywhere near a burial site as this will “disrupt the spirits and anger the small people”. He also says generally that there should not be anybody going into any of the areas or sites outlined above without Elders.
On the evidence, I am satisfied that there are two graves located in the permit area. As I have noted, the parties accept, and I find, that the burial sites are areas or sites of particular significance to the Ankamuthi People.

Crystal Creek

The position in relation to Crystal Creek is slightly different to the areas or sites considered above.
Crystal Creek was not included in Ipima Ikaya’s initial list of areas or sites in the permit area said to be of particular significance for s 237(b) (Contentions at paragraph 124), but it was certainly raised in the context of the particular significance of the Women’s Ceremony Place and the Oopudhi (Rainbow Serpent) resting place. In its contentions, the State does not dispute there are areas or sites of particular significance to the Ankamuthi People in the permit area and it does not raise any specific objection to any of the areas or sites listed. Silica accepted those areas or sites were of particular significance and, in listing them, it referred to “Crystal Creek, and nearby ceremonial areas”.
To the extent that parts of Crystal Creek fall within the marked areas showing the Women’s Ceremony Place and Oopudhi (Rainbow Serpent) resting place, I have found those areas to be of particular significance for s 237(b).
I considered the particular significance of Crystal Creek in some detail in Latsod at [54]–[64]. The evidence in that case supported the existence of areas or sites of particular significance along Crystal Creek, but I was not satisfied the entirety of Crystal Creek was of particular significance within the meaning of s 237(b).
The evidence in this matter again speaks to the importance of Crystal Creek to the Ankamuthi People, including as the home of the Ankamuthi People’s totem and for its healing properties. As in Latsod, the evidence explains how the seven rivers and creeks, including Crystal Creek, were created by Oopudhi or the Rainbow Serpent.
Mr Salee speaks of the significance of Crystal Creek, its association with the Rainbow Serpent Dreamtime story and its healing qualities. He refers to Crystal Creek as a sacred area and says it “isn’t just any creek”. However, he says that the evidence of the association with the Dreamtime story “is best to come from an elder” rather than himself.
In many respects, the evidence considered in Latsod as described at [54]–[64] was more detailed than the evidence in this case, but there is consistency in the nature of the evidence regarding the particular significance of specific areas or sites associated with Crystal Creek. For example, Mr Ropeyarn states “[t]hese areas around Crystal Creek are sacred. Our burial places and ceremony places are sacred”.
As I observed in Latsod, it is clear that Crystal Creek holds importance to the Ankamuthi People for a range of reasons, but the evidence does not support a finding that the entirety of the creek is an area or site of particular significance 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 Ceremony Place, the Oopudhi (Rainbow Serpent) resting place, the walking path associated with the Highway Supermarket story and the burial sites 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. The nature of each area or site, and the evidence of what would constitute interference, as outlined above, is key to that analysis, as are the activities proposed by Silica.
In Latsod at [97]–[106] and [109]–[114] I considered the extent to which the NTPCs would operate to mitigate the likelihood of interference from the grant of the tenement in that case and my general analysis of the operation of the NTPCs applies equally here. Based on the evidence of what would constitute interference with the Women’s Place in that matter, I was satisfied that interference was likely, including from Agreed Exploration Activities. However, in that case, there was insufficient evidence of what would constitute interference with the resting place or walking path and I was not satisfied on the evidence that interference with those sites was likely.

What activities does Silica propose to undertake?

A grantee party’s intentions for the permit may be relevant for the purpose of the predictive assessment (see Smith v Western Australia at [23] and Silver at [30]). Where there is clear evidence about what the grantee party intends to do, that should be taken into account in the predictive assessment. Tribunal decisions have dealt with the question of a grantee party’s intentions in varying ways, often depending on the strength of the evidence presented.
According to its approved work program, Silica’s proposed outcome is to “[l]ocate and test sand dunes in the permit area for high grade silica sand between the top of the dune and sea level”. The work program states that the dunes generally run north/south and all drilling work will be carried out a reasonable distance from the beaches. Mining on the beaches is not expected. Any estimated expenditure has been redacted but, as to the data to be provided, the work program states:
Broad sand sampling will be used to determine the best targets for more comprehensive drilling on tighter grids. Depths will be from the top of the dune, subject to access issues, to free draining or sea level. Drill program and assays will confirm the potential of the resource. Exploration data and assay results will be generated to help identify potential of the area for mine development.
Silica has also provided an affidavit of Mr Rodney Huntley who is a Director and Principal Resource Consultant at Groundwork Plus. According to the company search provided by Ipima Ikaya, Mr Huntley was, as at 17 December 2022, a director of Silica.
As explained by Mr Huntley, the initial stage of exploration involves what he describes as “first pass reconnaissance” involving walking the area and completion of hand held auger holes to a depth of no more than four metres. He says the size of the auger holes will be approximately 50 millimetres, backfilled upon completion, and that it is “very unlikely that the drill hole sites will be distinguishable as no clearing is needed”. One to two kilograms of sample will be taken from each drill hole and no chemicals will be used in the process. A Proposed Hand Auger Location Plan identifying twenty locations is attached to Mr Huntley’s affidavit, but he says these locations are flexible in that sensitive areas can be avoided. Mr Huntley says the initial reconnaissance work will take a maximum of two days. I note that the definition of Agreed Exploration Activities under the NTPCs includes “sampling by hand methods” which would appear to encompass these preliminary reconnaissance activities given Mr Huntley says no clearing is required.
Assuming the project advances, Silica proposes to complete 40-50 test pits across the permit area using a trailer mounted mini excavator. Mr Huntley says that no tracks or sampling pads will be cleared and a 400 millimetre wide test pit will be extracted to a depth of approximately three metres then backfilled. 20 to 30 kilograms of sample will be taken from each hole for testing. The work will take about 30 minutes to an hour at each site and be completed in three to five days. Mr Huntley has also provided a map showing the proposed test pit locations, in a similar area to the proposed hand auger holes. No chemical or drilling fluids will be used and Mr Huntley compares the proposed activities to digging holes for residential plumbing work, rather than conventional mining.
Ipima Ikaya has identified that the redacted expenditure information in the work program appears to be limited to the first three years of the term, arguing that the full extent of the proposed activities is therefore undisclosed. However, in his affidavit dated 16 January 2023, Mr Clark confirms much of Mr Huntley’s description of Silica’s proposed activities and says he expects the exploration process to be confined to three years, which is consistent with the work program. Nonetheless, I acknowledge the proposed term of the permit is five years so there is scope for further exploration activities to be undertaken beyond the three years currently outlined.
Mr Clark says that “exploration activities can be designed and planned to avoid any specific areas of cultural or environmental significance through consultation” in accordance with the NTPCs.
Additionally, Mr Clark says that Silica undertakes to consult with Ipima Ikaya in accordance with the NTPCs, but also to agree to monitoring whenever requested by Ipima Ikaya as if it were a recommendation made in an inspection report given under the NTPCs.
Specifically in relation to the indicative exploration mapping provided by Mr Huntley, Mr Clark says that it appears one auger hole and four test pit holes might intersect with the areas or sites of particular significance and goes on to say that Silica undertakes to avoid each of the areas I have found to be of particular significance, as well as Crystal Creek, and amend its work program accordingly.
From my review of the exploration plans, the auger hole and three of the test pit holes identified by Mr Clark have the potential to intersect with the walking path. The remaining test pit hole appears to be adjacent to a part of Crystal Creek that does not form part of the Women’s Ceremony Place or the Oopudhi (Rainbow Serpent) resting place. I have not found Crystal Creek as a whole to be an area or site of particular significance within the meaning of s 237(b) so that intersection is not relevant for present purposes.
I note also that there appears to be an unresolved issue with respect to Silica’s means of access to the permit area. It seems that when Mr Clark attended to take the offending sample, the helicopter was required to land on the beach due to difficulties in landing in the permit area. With respect to access for activities under the permit, Mr Clark says access may be via boat landing on the beach or via Jardine River, but that if those approaches are not acceptable to Ipima Ikaya, Silica remains flexible.
In addition, while the majority of the proposed auger holes and test pit holes appear to avoid the areas or sites of particular significance, there is no information about the travel routes Silica will take to those areas.

What is the likelihood of interference?

Ipima Ikaya argues that the cultural restrictions that apply to the conduct of exploration activities in the permit area mean that interference with the areas or sites of particular significance is likely. It says that is the case even for Agreed Exploration Activities and that conducting any exploration activities in culturally special or sensitive areas is unacceptable interference.
Ms Sebasio’s evidence with respect to interference with the Women’s Ceremony Place is general in nature. However, given the highly sensitive nature of the site, I accept that the conduct of any exploration activities in this area would constitute interference. In that respect, there are also parallels between this site and the Women’s Place considered in Latsod, although the evidence regarding interference here is not as specific.
Similarly, given their nature, I accept that any exploration activities on the burial sites would constitute interference.
In relation to the Oopudhi (Rainbow Serpent) resting place, Ipima Ikaya contend that the evidence identifies cultural practices that apply to maintaining the integrity of this place, involving speaking to the spirits and not conducting any activities which disrupt the area. It states that, in accordance with Ankamuthi law, there must not be any removal of resources without the approval of an Elder or destruction of the environment in this area. In Latsod I was not satisfied, based on the evidence, that interference with the resting place was likely due to the operation of the NTPCs. That is to say the evidence did not support a conclusion that interference was likely from any entry onto that site and I was otherwise satisfied that interference could be managed through the NTPCs.

In this case Mr Ropeyarn does state that only Ankamuthi People or people who have been invited can go in this area, while Ms Sebasio says Ankamuthi lore is not to “disturb” the country, noting “[y]ou cannot just take from this area”. Overall, the evidence is not sufficiently detailed for me to conclude that any entry onto this site would amount to interference in accordance with Ankamuthi tradition. However, on the evidence, both stages of exploration proposed by Silica would constitute interference with the resting place.
Ipima Ikaya also asserts that any activity, whether low or high impact, will be a direct and substantial interference with the walking path. That is not the relevant test here, but it is, in any event, not made out on the evidence. Similar to Latsod where Ms Sebasio said that the walking path could not be “disrupted”, the evidence here is that the walking path cannot be “disturbed”. Again, the evidence lacks sufficient detail to support a conclusion that mere entry onto the walking path would constitute interference in accordance with Ankamuthi tradition. However, in this case the preliminary reconnaissance activities will involve taking hand samples which I consider would constitute interference, as would the stage two test pit holes.
The State notes that Silica does not dispute some of its proposed exploration locations intersect with the areas or sites of particular significance but has undertaken to amend its work program to avoid those sites. It argues also that the precise mapping and descriptions given by Ipima Ikaya in conjunction with the legislative regime mean that interference is unlikely. The State says that to conclude otherwise requires me to assume the worst, which is not the correct approach to the predictive assessment and infringes on the presumption of regularity. I do not entirely agree with that submission, particularly as it relates to matters beyond the regulatory regime as I explain below. Further, as discussed in Latsod at [110], I reject the State’s suggestion that the mapping provided by Ipima Ikaya in this inquiry to meet the requirements of s 237(b) should be viewed as some kind of blueprint which can be used by Silica to avoid good faith negotiations.
In this case there is evidence regarding the minerals targeted by Silica and the method of exploration proposed. That is the type of evidence of intention that informs my predictive assessment, although I acknowledge the auger hole and drilling plans provided are proposals and may, therefore, be subject to change. I have also accepted the evidence of Silica’s intention to comply with the regulatory requirements and applied the presumption of regularity.
In contrast however, the Tribunal has been critical of arguments to the effect that broad and unsubstantiated statements of good will by a grantee party amount to evidence of a grantee party’s “intentions” (see, for example, Tjiwarl at [67], WGAC v Yandan at [37] and Latsod at [106]).
In that respect, there is clearly a distinction between taking account of evidence of how a grantee party intends to undertake exploration activities and making assumptions about matters which would require further consultation and agreement by the parties in order to mitigate the risk of interference. In line with the comments of then President Dowsett in Tjiwarl at [106], if agreement between the parties is required in order to render interference or disturbance unlikely, that seems to be a clear sign that the matter is one where negotiations under s 31 of the Native Title Act are appropriate. Avoiding statutorily mandated negotiations simply by indicating a willingness to negotiate would be a peculiar outcome.
I have taken account of the evidence regarding how Silica intends to conduct its exploration activities and I have also had regard to Mr Clark’s evidence about compliance with the NTPCs and the regulatory regime in considering the presumption of regularity. However, in my view, Mr Clark’s commitments with respect to matters outside the NTPCs fall into the category of unenforceable statements of good will and do not carry weight in my predictive assessment because they depend on Silica reaching agreement with Ipima Ikaya.
Silica’s proposed activities are not in close proximity to the burial sites or the Women’s Ceremony Place but there is still the unresolved issue of access to and throughout the permit area which may involve entry into those areas and would cause interference. The question of access to and across the permit area appears to be entirely open and, based on Silica’s own evidence, will require further consultation and negotiation with Ipima Ikaya.
In addition, both stages of exploration, as outlined in Silica’s evidence, would constitute interference for s 237(b). However, I expect that any interference likely to arise from the stage two test pit holes can be adequately mitigated through the operation of the NTPCs.
On Silica’s own reckoning there is at least one proposed auger hole located near the walking path which will require consultation and negotiation with Ipima Ikaya to avoid interference.
Having regard to the need for further consultation and negotiation with Ipima Ikaya with respect to both the stage one activities and questions of access throughout the permit area, I conclude that the grant of the permit is likely to cause interference within the meaning of s 237(b).
I understand the arguments of the State and Silica about Mr Clark’s intentions and I have explained the distinction between the various types of intention. In the present context, once it is clear that consultation and negotiation beyond the scope of the permit and the regulatory regime is required to render interference unlikely, the parties should be required to negotiate in accordance with s 31 of the Native Title Act.

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 discussion of the authorities regarding s 237(a) in Ngarlawangga and FMG at [72]–[77].
The parties agree that Ankamuthi People undertake community and social activities in the permit area.
Ipima Ikaya submits the following activities are undertaken in accordance with or connected to the traditional laws and customs of the Ankamuthi People:
(a)ongoing caring for Elders;
(b)camping;
(c)hunting;
(d)fishing;
(e)participating in sorry business;
(f)conducting and attending ceremonies; and
(g)participating in the Healing Country program.
Similar to Latsod, Ipima Ikaya relies on evidence relating to the Ankamuthi People’s participation in research programs such as that outlined in the Freshwater Fish Survey of the Jardine River catchment, Cape York report and the proposed freshwater turtle research by Biomatix outlined in the statement of Ms Amanda Ewart as evidence of caring for country. I do not find that to be a particularly compelling argument given it depends on external interest rather than the exercise of native title rights. In my view, that evidence holds more relevance for s 237(c). In any event, so far as s 237(a) is concerned, the evidence lacks specificity with respect to the extent of ongoing activities in the permit area.
It is evident that community and social activities of the kinds outlined at [99] above are conducted in the permit area. The issue for s 237(a) is whether the grant of the permit is likely to interfere with the conduct of those activities in a direct and substantial way.
Mr Ropeyarn speaks of going fishing and hunting in the permit area “at least once a month” and says that there are groups of hunters that go into the permit area “all the time”. He also mentions staying on country for a week or more for spear making, but it is not clear how often that occurs.
Mr Salee says that there are Ankamuthi People in the permit area “all the time hunting”, but he notes hunters move around a lot, so they do not keep returning to the same location.
Ms Sebasio says that Ankamuthi People camp at Vrilya Point and go to walk on country as much as they can. She says there is only one permanent camp in the north of the permit area for rangers and their turtle monitoring program. Ms Sebasio also mentions taking yams in April.
Overall, there is relatively little evidence of the scale, timing and extent of the activities conducted in the permit area.
Many of the activities outlined also occur in the area of the tenement considered in Latsod. That is not to say they do not occur in the permit area as it is accepted they do. However, what is unclear, is the frequency and scale of the activities in the permit area. Without further evidence of those matters, I cannot conclude that the permit is likely to cause the direct and substantial or non-trivial interference required for s 237(a).
Ipima Ikaya also argues that compliance with its obligations under the NTPCs and the State’s legislative regime will cause interference within the meaning of s 237(a). I accept that the need to comply with those measures, including to ensure the protection of its rights, is a regulatory burden on Ipima Ikaya but the evidence does not support that contention.
While there is no question that Ankamuthi People undertake community and social activities in the permit area and so much is agreed by the State and Silica, the evidence is too general for me to conclude that direct and non-trivial interference with Ipima Ikaya’s activities is likely.

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.
Importantly, 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.
The Tribunal also observed, I think correctly, in Rosas v Northern Territory at [87] that cultural concerns should be assessed after taking into account the mitigating effects of the relevant regulatory regime.
I considered the question of major disturbance at some length in Latsod at [131]–[151] and much of that analysis is equally applicable here given the similarities outlined at [12] above. In Latsod, I concluded that major disturbance within the meaning of s 237(c) was likely, even with the NTPCs and other regulatory controls in place.
In this case there is evidence of the nature of the activities proposed by Silica and the scale of the activities proposed is not as extensive as those considered in Latsod. Nonetheless, the activities proposed by Silica will have an impact across the permit area, with up to 30 kilograms of sand being extracted from up to 50 locations during stage two.
The question then is whether the activities proposed by Silica, conducted in accordance with the NTPCs and the other regulatory controls, constitute major disturbance within the test outlined in s 237(c).
In my view there is very little to distinguish the circumstances considered in Latsod from this case. A comparison of the factors outlined in Latsod at [150], identifies that:
(a)the permit area is also one of natural beauty and environmental values;
(b)there is similarly 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 just over one third of the permit area in this case;
(d)the permit area is again 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, many of the same activities in the permit area; and
(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]).
The cultural significance of sand is of particular import because Silica’s stated focus is silica sand. That was an issue drawn out in Latsod (see especially [133] and [145]) and raised again by Mr Salee in the restricted portion of his evidence in this matter. It is worth repeating the discussion of the evidence at [145] in Latsod:
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.
As mentioned above, the outcome Silica seeks as per its approved work program is to “[l]ocate and test sand dunes in the permit area for high grade silica sand between the top of the dune and sea level”. However minimal, however controlled and however much consultation occurs, sand will still be taken from the permit area which will necessarily have a cultural impact for the Ankamuthi People.
Having regard to all of the factors outlined at [115] and [116], particularly the cultural impacts of taking sand, I consider this case, like Latsod, is of the kind referenced by Wilcox J in Dann 1997 where the cultural differences are particularly important and the impact on the Ankamuthi People as outlined in their evidence is sufficient to warrant a finding of major disturbance.
It follows that I conclude that the grant of the permit is likely to cause major disturbance within the meaning of s 237(c).

Determination

I determine that the grant of the exploration permit for minerals EPM28074 is not an act attracting the expedited procedure.

Ms Nerida Cooley
Member
24 November 2023