Jidi Jidi Aboriginal Corporation RNTBC v Crest Investment Group 3 Limited
[2021] NNTTA 8
•26 February 2021
NATIONAL NATIVE TITLE TRIBUNAL
Jidi Jidi Aboriginal Corporation RNTBC v Crest Investment Group 3 Limited [2021] NNTTA 8 (26 February 2021)
Application No: | WO2020/0597 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Jidi Jidi Aboriginal Corporation RNTBC (WCD2000/001)
(native title party)
- and -
Crest Investment Group 3 Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Nerida Cooley, Member |
Place: | Brisbane |
Date: | 26 February 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – expedited procedure – the act is an act attracting the expedited procedure – expedited procedure applies |
Legislation: | Mining Act 1978 (WA) ss 57, 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 32, 151, 237 |
Cases: | Clarrie Smith v Western Australia [2000] FCA 1249 (‘NWN determination’) Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia (2015) 233 FCR 96; [2015] FCA 560 (‘Hale’) Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 9 (‘Nyiyaparli determination’) Limmerick on behalf of the Ngarlawangga People v State of Western Australia [2016] FCA 1442 (‘Ngarlawangga determination’) Narrier v State of Western Australia (‘Narrier v Western Australia’) [2016] FCA 1519 Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (‘Smith v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) |
| Representatives of the native title party: | Michelle Riley, Rose Robinson and Jeremiah Riley, Jidi Jidi Aboriginal Corporation RNTBC |
| Representative of the grantee party: | Jaya Prasad, Mining Access Legal |
| Representatives of the Government party: | Anthony Civiello, State Solicitor’s Office; Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies to the grant of exploration licence E52/3780 (licence) to Crest Investment Group 3 Limited (Crest).
In accordance with s 29 of the NTA, the State of Western Australia (State) gave notice that the Minister for Mines and Petroleum may grant the licence, specifying the notification day of 20 March 2020. The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure. If the expedited procedures applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Jidi Jidi Aboriginal Corporation RNTBC (JJAC) holds native title on trust for the community of Nharnuwangga, Wajarri and Ngarlawangga people (NWN Community or NWN People) in relation to 3.77% of the licence area (see NWN determination). On 15 July 2020, JJAC lodged an objection against the inclusion of the expedited procedure statement (s 32(3) NTA).
Native title to the balance of the licence area is held by:
(a)Ngarlawangga Aboriginal Corporation RNTBC on trust for the Ngarlawangga People (see Ngarlawangga determination); and
(b)Karlka Nyiyaparli Aboriginal Corporation RNTBC on trust for the Nyiyaparli People (see [Nyiyaparli determination]).
In March 2020, each of Ngarlawangga Aboriginal Corporation RNTBC and Karlka Nyiyaparli Aboriginal Corporation RNTBC also lodged objections against the expedited procedure statement. The Tribunal’s records show that both of those objections were later withdrawn because the native title parties had each reached agreement with Crest.
However, JJAC’s objection remains on foot and the Tribunal is therefore required, under s 32(4) of the NTA, to determine whether the grant of the licence is an act attracting the expedited procedure. I have been directed to constitute the Tribunal for that purpose. For the reasons outlined below, my determination is that the licence is such an act.
Determination on the papers
In accordance with the Tribunal’s directions, the State provided contentions and evidence including mapping, a Tengraph Quick Appraisal, searches of the Aboriginal Heritage Inquiry System (AHIS search), the licence application together with a redacted copy of the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement) and details of proposed endorsements and conditions to be imposed on the grant of the licence.
JJAC provided contentions (including by way of reply) and relies on statements of Mr Leonard Smith and Mr Gary Robinson Sr, both dated 19 August 2020. JJAC has also provided three additional documents relating to heritage sites in the licence area. Mr Smith and Mr Robinson are both members of the NWN Community, directors of JJAC and Custodians for NWN Country. Mr Robinson also states that he is the Survey Coordinator for all heritage surveys carried out under heritage agreements between JJAC and mining proponents in the NWN determination area. Mr Smith says he is a Heritage Consultant for such surveys.
Crest provided contentions and an affidavit of a director, Mr Heath Hellewell.
All parties agree to the application being determined on the papers as permitted by s 151(2). Having considered the material provided, I am satisfied that the matter can be adequately determined without a hearing.
Issues for the inquiry
Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The accepted approach to s 237 is summarised in Yindjibarndi v FMG at [15]. The Tribunal’s role is 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 licence.
In this matter JJAC contends that the grant of the licence is likely to cause interference within the meaning of ss 237(a) and (b). It does not make any contentions or provide any evidence as to the likelihood of major disturbance under s 237(c) and, on the material before me, there is no basis to conclude such disturbance is likely. Accordingly, this inquiry is focussed on the likelihood of interference within the scope of ss 237(a) and (b).
The Tribunal’s inquiry concerns the whole of the licence area
The State (at 6) argues that the only part of the licence area in issue in this inquiry is the area in relation to which JJAC holds native title, referred to as the NWN Overlap Area. Crest’s contentions are also based on that premise. The NWN Overlap Area is located in the south-west of the licence area. As noted, it covers a small portion (3.77%) of the licence area.
However, as the Federal Court held in Hale at [119], the Tribunal’s inquiry concerns the licence area as a whole. Whether or not interference contemplated by s 237 is likely in circumstances where a native title party’s standing arises from a native title claim or determination over only part of the tenement will be a question of evidence (see Hale at 112-113).
In this case, I note that Ngarlawangga People hold rights under both the NWN determination and the Ngarlawangga determination, so there may well be sites or areas in the Ngarlawangga determination area that are of significance to members of the NWN community in accordance with their traditions.
The Court’s reasons with respect to the Ngarlawangga determination (at [1]) state that the determination area largely includes areas which had been excluded from the NWN determination. That appears to be consistent with Mr Smith’s statement that “[w]e gave our evidence for our Native Title Determination near here, at Perry Downs”, which I understand from JJAC’s contentions is a reference to the pastoral property Prairie Downs. However, while the licence area includes part of Prairie Downs, the NWN determination does not. It is the Ngarlawangga determination which covers part of Prairie Downs.
Similarly, Mr Robinson states at 4 that the licence area is “inside NWN Country” and “[t]he boundaries of our Country go to the north of this tenement and go to Perry Downs, Turrie Creek and Woolla Downs” of the licence. Again, it is the Ngarlawangga determination not the NWN determination which extends to the north of the licence area. According to the NWN determination mapping, the NWN determination does include part of a property called Turee Creek (to which Mr Robinson may be referring) but not Perry (Prairie) Downs. As noted, native title rights to part of Prairie Downs are held in trust by Ngarlawangga Aboriginal Corporation RNTBC, not JJAC. Turee Creek is outside the licence area and the location of Woolla Downs is not apparent from the mapping.
The relevance of the NWN determination area is discussed further below in my consideration of the evidence.
The licence and Crest’s proposed exploration activities
The nature of the licence and the activities proposed by Crest are relevant to my consideration of both ss 237(a) and (b) and it is useful to consider those matters at the outset.
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act. Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act outlines the rights conferred on the holder of an exploration licence, which include the right to ‘excavate, extract or remove… earth, soil, rock, stone, fluid or mineral bearing substances’ up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The Tengraph Quick Appraisal provided by the State reveals a range of information about the licence area, including that:
(a)the licence area is 41163.52 hectares; and
(b)the underlying land tenure comprises mainly pastoral lease (94.28%), together with unallocated crown land (5.71%) and a C Class Reserve for a Repeater Station Site (0.01%).
According to its s 58 statement Crest proposes to “systematically explore the entire area applied for”. The target mineral is listed as gold and the estimated expenditure for the first year work programme is $133,065.
Mr Hellewell’s affidavit (at 23-37) sets out further details of each stage of the exploration activities proposed by Crest. As might be expected, the outline indicates the scope and intensity of exploration activities may increase depending on early results. There is no indication of the timeframes within which this may occur.
Predictive assessment
Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of the native title holders?
Section 237(a) speaks of direct interference. In Smith v Western Australia, the Federal Court observed at [26] that:
The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
In its contentions at 7, JJAC repeats its grounds for objection as expressed in its Form 4 objection application. These include that Crest’s exercise of rights under the licence will interfere directly with its community and social activities namely hunting and gathering activities and visiting and caring for places of cultural and spiritual importance.
There is no evidence provided of any hunting or gathering activities and this aspect of the objection does not appear to be pursued.
The only argument which JJAC appears to press is that the grant of the licence without a heritage agreement between JJAC and Crest would interfere directly with the important community activity of heritage protection. (JJAC contentions at 26-30)
However, the concerns expressed by Mr Robinson and Mr Smith upon which JJAC relies are in the context of interference with sites of particular significance, not community or social activities.
Crest argues at 42 that heritage protection is not a community or social activity, although the basis of that argument is not clear. The determined native title rights held by JJAC include the right to have access to and camp on the determination area in order to visit and care for places of cultural or spiritual importance. It is distinctly possible therefore that members of the NWN Community regularly undertake such community activities.
However, there is no evidence regarding the carrying out of any such activities in the licence area. JJAC’s contention also appears speculative in that it assumes there will be no agreed heritage protection arrangements or that it would not be able to access the area to protect heritage. Yet, Mr Hellewell deposes that Crest will conduct heritage surveys.
JJAC did not have the benefit of Mr Hellewell’s evidence at the time of providing its primary contentions. In its reply JJAC has not responded to any of the issues raised by the State and Crest with respect to the application of s 237(a). I note also that in the concluding paragraph of its reply JJAC appears to rely only on s 237(b), although there is no specific statement that it no longer presses interference within the scope of s 237(a).
Regardless, there is no evidential basis upon which I could conclude that the grant of the licence is likely to cause interference within the meaning of s 237(a).
Section 237(b): is the grant of the licence likely to interfere with areas or sites of particular significance to native title holders?
As discussed in Yindjibarndi v FMG at [17]-[18], an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders.
JJAC’s evidence and contentions
The statements of Mr Smith and Mr Robinson include brief passages relating to sites or areas of particular significance relevant to the grant of the licence. While specific locations are mentioned, it is often in the context of general statements about the importance or significance of the licence area.
Given the brevity of those parts of the statements it is worth repeating them as a whole so the evidence is presented in context.
Mr Robinson’s evidence is as follows:
Particular Significance: E 52/3780
4. The area of the Exploration License E 52/3780 is inside NWN Country. The boundaries of our Country go to the north of this tenement and go to Perry Downs, Turrie Creek and Woolla Downs.
5. This is a significant place for the NWN People because there are a lot of sacred sites in this area, including Kerennia Creek. We have registered sites back in here. This is one of the main places that the Old People used to take us, all through this Country showing us important things.
6. This area is a big site for us with all the creeks and hills. There are a lot of Dreamings here, starting from Dead Man's Hill. Some of these sites women can't go into.
7. Dreamtime stories go from one to another. If one Dreamtime story is damaged this affects other Dreamings and people can get sick and die.
8. There are Boogooda here - little people who live in the hills and who protect the land and water, and who protect the traditional tribal elders of the people, These are where the Old People get their songs from.
9. There is a spring just outside this tenement that is very important to us - Tuperdunya Spring. If they go to this spring and damage this spring then we will have a bad season, animals will die, the Country will die with no water flow. We don't want the miners going near that spring.
As to the risk of interference arising from the grant of the licence, Mr Robinson expresses concern that, because JJAC doesn’t have an agreement with Crest, the grant of the licence may result in sickness and accidents (for both NWN People and Crest) if it isn’t looked after. Mr Robinson says another worry is losing connection for the Dreamtime story for the area (Robinson statement at 9-11).
Mr Smith also speaks of the significance of the licence area as follows:
Particular Significance: E 52/3780
4. The area of the Exploration License E 52/3780 is inside NWN Country.
5. This area significant to the NWN People because there are a lot of important water sources and hills here. This is where the water comes up from the main rivers to make the creek here.
6. We gave our evidence for our Native Title determination near here, at Perry Downs. We have the Boomerra (snake spirit) in the water in this place and that Dreamtime story would go through this place.
7. Old People would have been hunting and camping here because all the camping sites follow rivers and creeks. This is why there are going to be artifacts and camping places in this area.
8. There is an important spring just beside this tenement - Tuperdunya Spring - where the miners shouldn't go because it is sacred to us.
Mr Smith expresses concern that the grant of the licence will affect NWN People because of “all of the important sites”. Similar to Mr Robinson, he specifically mentions the risk of punishment arising from a failure to protect the land, the risk of damage to artefacts which “hurts the dreamtime” and says “we can get sick or punished for that”. Mr Smith’s evidence suggests that those risks could be managed through surveys and says there needs to be a buffer zone around “sacred areas”.
JJAC’s contentions recite much of the evidence and make a number of generalised statements regarding the significance of sites or areas mentioned by Mr Smith and Mr Robinson. There is very little detail provided and until the provision of its reply, JJAC does not appear to have taken account of the other native title determinations in the licence area. Certainly, they are not mentioned in JJAC’s contentions. In reply, JJAC seeks to argue (at 10) that the sites and areas mentioned in the evidence are all located in the NWN Overlap Area.
However, there is a decided lack of clarity regarding the identity and location of a number of the sites mentioned and very little information to explain why any of the sites or areas mentioned are of particular significance, that is, special or more than ordinary, significance to NWN People in accordance with their traditions, as required for s 237(b).
Similar criticisms are made by the State and Crest in their contentions and JJAC has endeavoured to address a number of these issues in reply.
In relation to the dreaming stories, JJAC argues that the State and Crest are taking too literal an approach, saying that JJAC does not need to establish the truth of the story but that a place or area is particularly significant in accordance with the native title party’s traditions. JJAC relies on a passage from Narrier v Western Australia at 538 and states at 24:
Thus, if a dreaming being is always existing and occupying the landscape and leaving an imprint of its adventures, it will inevitably be in many places at one time if it is associated with more than one place. Therefore the Boomerra dreamtime story, the Boogooda dreamtime story and the Men's Dreamtime Story are of particular significance in accordance with the Native Title Party's traditions and are located with sufficient specificity as to be included within the NWN Overlap Area.
The issue here though is that the evidence does not support those conclusions. As to location, there is either insufficient specificity or to the extent there is an indication of the location of an identified site or area, it appears to be outside the NWN Overlap Area. As I have already explained, that of itself may not be fatal, but there is also no adequate explanation of the particular significance of the sites or areas in accordance with the NWN People’s traditions. Simply stating that a site is significant or sacred, does not address the requirement of ‘particular significance’.
Having made those initial observations, I will address the particular sites or areas raised by JJAC in its contentions and reply.
Registered Aboriginal sites and the Other Heritage Places
According to the AHIS search, there are five registered Aboriginal sites and three other heritage places located within the licence area as follows:
ID Name Type Registered Aboriginal Sites 16112 Harlington Bore Artefacts/Scatter 17418 Tunnel Creek Artefacts/Scatter 17419 Kirennia Creek 01 Artefacts/Scatter 17420 Kirennia Creek 02 Artefacts/Scatter 17421 Prairie Downs 1 Artefacts/Scatter Other Heritage Places 11812 Spearhole Creek Artefacts/Scatter, Historical, Other: Pre Fight 17383 Miralan (bana) Mythological 17384 Miralan (bana)/Punjanbana Mythological
JJAC refers to each of these sites and places at paragraph 15 of its contentions. It also refers to additional documentation provided regarding a 1994 survey of a pipeline route which traversed part of the licence area and a heritage report relating to tenement E52/1046. The Quick Appraisal shows that tenement was surrendered in 1999 and covered 5.05% of the licence area.
The relevance of those reports for present purposes is not explained, other than that JJAC notes they list artefacts not dreaming sites. The reports do not appear to contain any information relevant to the question of whether any of the registered sites or other heritage places are sites or areas of particular significance within the meaning of
s 237(b).
In its reply at 10, JJAC contends that it has given evidence that the registered sites are places of particular significance for s 237(b). However, the evidence of Mr Robinson and Mr Smith does not specifically address the particular significance of any of the registered Aboriginal sites.
Overall, there is no evidence upon which to conclude that any of the registered Aboriginal sites or other heritage places shown on the AHIS search are themselves sites or areas of particular significance for s 237(b).
Kerennia Creek (also spelt Kirennia Creek and shown on the mapping as Kirenia Creek)
JJAC argues that Kerennia Creek is a site of particular significance based on Mr Robinson’s evidence that Kerennia Creek is a ‘sacred site’.
The State argues that it is not clear whether Mr Robinson is referring to Kerennia Creek itself or the registered sites Kirennia Creek 01 and Kirennia Creek 02, being artefact scatters. According to the mapping those sites are located near ‘Kirenia Creek’ which runs into the northern part of the licence and outside the NWN Overlap Area. Based on JJAC’s contentions, I understand the reference to be to the Creek itself.
Mr Robinson refers to this area being “one of the main places that the Old People used to take us, all through this Country showing us important things.” However, that evidence does not explain why the creek is of particular (being more than ordinary) significance in accordance with traditions. That is especially so given the creek is outside the area in relation to which JJAC holds native title. Accordingly, I am unable to find that Kerennia Creek is a site of particular significance within the meaning of
s 237(b).
Dreaming track stories that go through the licence area “starting from Dead Man’s Hill”
Mr Robinson’s evidence at 6 regarding these stories (extracted above) is very brief and general. I understand Mr Robinson’s reference at paragraph 6 to “this area” to mean the licence area.
However, the location of Dead Man’s Hill is not specified, nor shown on the mapping provided. Nothing in the material identifies the path of the dreaming tracks in the licence area nor any specific sites in the licence area associated with the dreaming tracks. Further the particular significance of the dreaming track stories is not explained.
In its reply (at 18) JJAC refers to Mr Robinson’s evidence regarding these dreaming tracks as the ‘Men’s Dreamtime Story’. However it is by no means clear that Mr Robinson is referring only to men’s stories. He simply says there are some sites where women can’t go but again, no detail is provided.
On the basis of this evidence I am unable to conclude that the dreaming tracks mentioned are located in the licence area or are of particular significance as required for s 237(b).
Boomerra Dreaming
Mr Robinson refers to giving evidence “near here” at Perry Downs and describes the Boomerra (snake spirit) in the water and the Dreamtime Story going through ‘this place’. JJAC also relies on a statement from an unnamed archaeologist (which is also unsigned and undated) to explain significant sites around rivers and creeks in NWN Country. That statement refers to a belief (common to a number of groups) in Bimara or mythological water serpents in permanent water sources, which it says often bear the same name as the site associated with it.
As already noted, it appears to be accepted by JJAC that the references by Mr Smith and Mr Robinson to Perry Downs are references to Prairie Downs pastoral lease, which forms part of the licence area.
It also appears to be accepted by JJAC that the part of the licence subject to Prairie Downs is not within the NWN Overlap Area (reply at 20). That is also apparent from the map attached to the NWN determination which shows Prairie Downs outside the NWN determination area.
In its contentions at 23, JJAC argues that the relevant site referred to by Mr Robinson at 6 is at Prairie Downs. However, in its reply at 20, JJAC changes its contention to argue that Mr Robinson is referring to NWN Country within the licence area, which it says includes the NWN Overlap Area.
In its reply JJAC also seems to draw a distinction between NWN Country within the licence and the NWN Overlap Area, but that distinction is not explained.
The only location mentioned in the context of the Boomerra dreaming is Prairie Downs. If, as JJAC now says, the dreaming is within the NWN Overlap Area, there is no indication given of its location. It is not clear whether the location is a permanent water source or something else.
Once again, the evidence is insufficient for me to be satisfied of the location of any site associated with the Boomerra.
Boogooda Dreamtime Story
At paragraph 8, Mr Robinson refers to Boogooda, being little people who live in the hills. Earlier he described the area of the licence as ‘a big site for us with all the creeks and hills’.
Initially JJAC did not make any specific contentions regarding this evidence. However, in reply, it argues that the Boogooda dreamtime story is a site of particular significance (Reply at 21, 24, 27).
Mr Robinson describes the significance of the Boogooda but he does not give any indication of the location of the relevant hills in the licence area.
On the evidence provided I am unable to locate any dreaming story associated with the Boogooda in the licence area and am therefore not satisfied that there is a relevant site or area of particular significance for s 237(b).
Tuperdunya Spring.
Despite its contentions at 25, it seems to be accepted by JJAC (Reply at 27(a) that Tuperdunya Spring is located outside the licence area. That is certainly the evidence of both Mr Robinson (at 9) and Mr Smith (at 8). The State’s mapping also shows Tuperdunya Spring to the north of the licence area.
Further, other than the witness’ statements that the spring is “very important” and “sacred”, there is no evidence of why the spring is of particular significance to the native title holders in accordance with their traditions.
The evidence regarding Tuperdunya Spring is insufficient for me to find that it is a site or area of particular significance to native title holders, as required by s 237(b). However, even if there were sufficient evidence, the spring is located outside the licence area. Mr Robinson says “we don’t want the miner’s going near that spring” and there is no basis to suggest Crest will go near the spring. The grant of the licence will not include the spring and there is no evidence to suggest that Crest is likely to interfere with the spring. For example, it is not suggested that Crest will traverse the location of the spring to access the licence area
Conclusion for s 237(b)
Based on the evidence I am not satisfied that any of the sites and areas identified by JJAC are sites or areas of particular significance within the scope of s 237(b).
No explanation is given of why the sites or areas are of more than ordinary significance to native title holders in accordance with their traditions. This lack of explanation is particularly stark in the circumstances here where the majority of the licence area is subject to separate determinations of native title and not held by JJAC.
Given I have not found there to be sites or areas of particular significance to JJAC in the licence area, it is not necessary for me to further consider the likelihood of interference from the grant of the licence.
However, it is worth observing that the risks identified by JJAC from the grant of the licence are said to arise from the absence of a heritage agreement with Crest. Yet, JJAC holds native title to only a small portion of the licence area and does not have responsibility for a heritage agreement in the balance of the licence area, where the majority of the sites and areas mentioned are located.
It is Ngarlawangga Aboriginal Corporation RNTBC and Karlka Nyiyaparli Aboriginal Corporation RNTBC which have responsibility for those areas and as noted, the Tribunal’s records indicate that the objections by those parties were withdrawn as agreements were reached with Crest. In addition, I note that Mr Hellewell deposes that Crest will undertake Aboriginal heritage clearance surveys in consultation with the appropriate groups, which I expect includes JJAC as the native title holder of the NWN determination area.
Determination
I determine that the grant of exploration licence E52/3780 to Crest Investment Group 3 Limited is an act attracting the expedited procedure.
Nerida Cooley
Member
26 February 2021
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