Kado Muir and Others on behalf of Manta Rirrtinya and Another v Greatland Pty Ltd and Another
[2019] NNTTA 54
•23 July 2019
NATIONAL NATIVE TITLE TRIBUNAL
Kado Muir and Others on behalf of Manta Rirrtinya and Another v Greatland Pty Ltd and Another [2019] NNTTA 54 (23 July 2019)
Application Nos: | WO2018/0240, WO2018/0241, WO2018/0252 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kado Muir & Others on behalf of Manta Rirrtinya (WCD2018/007)
- and -
Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) (WCD2005/002; WCD2008/001)
(native title parties)
- and -
Greatland Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 23 July 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – 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 – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions - the acts are not acts attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 32, 155, 237 |
Cases: | Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (2005) 142 ALR 21 (Cheinmora v Striker Resources) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335; 227 FCR 182; 324 ALR 580 (FMG v Yindjibarndi Aboriginal Corporation) Les Tullock and Others on behalf of Tarlpa /Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (Tarlpa v Allarrow) Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388 (Muir on behalf of the Manta Rirrtinya People v State of Western Australia) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 Smith v Western Australia [2001] FCA 19 Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia [2005] FCA 831 (Peoples of the Ngaanyatjarra Lands v The State of Western Australia) Ward v State of Western Australia (1996) 69 FCR 208 (Ward v Western Australia) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v MDR (Thomsons) Pty Ltd [2014] NNTTA 91 (Western Desert Lands v MDR) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara) |
| Representatives of the native title parties: | Gavin Dunn & David Reger, Central Desert Native Title Services Ltd Alex Knight & Paquita Knight, Ngaanyatjarra Council (Aboriginal Corporation) |
| Representative of the grantee party: | Matthew Clohessy, Emerald Tenement Services |
| Representatives of the Government party: | Bethany Conway, Department of Mines, Industry Regulation & Safety Francis Cardell-Oliver, State Solicitor’s Office |
REASONS FOR DETERMINATION
[1] The State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of its intention to grant exploration licences E38/3236 and E38/3237 (the licences) to Greatland Pty Ltd (Greatland). The licences are adjacent to each other and cover an area of approximately 208 and 204 square kilometres respectively. They are located approximately 200 kilometres north-east of the Cosmo Newberry Mission, in the Shire of Laverton. The State’s notice for each licence included a statement that the grant is an act attracting the expedited procedure (s 32 of the Act).
[2] I have been appointed to decide whether the expedited procedure outlined in s 32 the Act applies to the proposed grant of licences. As outlined in s 237 of the Act, the expedited procedure applies where the grant of a licence is not likely to, in summary:
•• interfere directly with community or social activities carried on by members of native title claims or determined areas;
•• interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
•• involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
a.[3] The registered native title claimant for the Manta Rirrtinya People lodged an objection with the National Native Title Tribunal (the Tribunal) against the application of the expedited procedure to the grant of E38/3236. The Court determined that Wakamurru (Aboriginal Corporation) RNTBC (Wakamurru) hold the determined native title in trust for the Manta Rirrtinya native title holders (Muir on behalf of the Manta Rirrtinya People v State of Western Australia).
b.[4] The Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) (YNP) lodged an objection with the Tribunal against the application of the expedited procedure to the grant of E38/3236 and E38/3237. YNP is the Registered Native Title Body Corporate (RNTBC) determined by the Federal Court of Australia (the Court) to hold native title in trust for the Ngaanyatjarra people (Peoples of the Ngaanyatjarra Lands v The State of Western Australia).
c.[5] Wakamurru holds exclusive native title rights over approximately 52 per cent of the area of E38/3236 (approximately the northern half) and YNP holds exclusive native title rights over approximately 48 per cent of that licence (approximately the southern half). YNP holds exclusive native title rights over approximately 63 per cent of the area of E38/3237 and non-exclusive rights over approximately 2 per cent of that licence. Subject to certain qualifications as set out in their determinations, the native title holders have the right to possess, occupy, use and enjoy the land and waters of these areas to the exclusion of all others.
d.[6] I note E38/3236 is adjacent to two other licences, also the subject of objections to the expedited procedure (WO2018/0166 and WO2018/0253) and in relation to which I recently determined the expedited procedure did not apply. As with those two licences, E38/3236 wholly overlaps unallocated vacant crown land. The majority of E38/3237 also overlaps vacant crown land.
Materials provided by parties
a.[7] Wakamurru submitted contentions and the affidavit of Mr Kado Muir. Mr Muir states he is a traditional owner and native title holder for the area. He is also a director and current chairperson of Wakamurru and a wati (initiated man) with cultural authority to speak for the area covered by E38/3236. I accept Mr Muir has authority to speak for the area.
b.[8] YNP requested non-disclosure directions be made over some of the evidence which was gender restricted and/or culturally sensitive. No party took issue with that request, and I granted those directions, having considered the materials and being satisfied the directions were required to protect native title holder cultural sensitivities. YNP provided affidavits from native title holders as listed below, as well as photographs of certain features associated with an area which I will refer to as ‘N’ (as outlined by the native title holders, see for example [18] below). I am satisfied the deponents have authority to speak for the licence areas:
c.(a) Lalla West
d.(b) Elizabeth Holland
e.(c) Phillip West
f.(d) Thomas Murray
g.[9] YNP also provided the affidavits of Alessandro Ramasco and Hannah Hueneke, who each outline their qualifications as anthropologists. Ms Hueneke and Mr Ramasco both state they live in Warburton and work for the YNP representative. I accept the evidence of their fieldwork with the native title holders and their interpretations of that work.
h.[10] Greatland provided contentions in relation to E38/3236, but not in relation to E38/3237.
[11] The State provided contentions and evidence in relation to both licences.
j.[12] Wakamurru and YNP provided contentions in reply. I note the YNP reply refers to a Connection Material Report as supporting some of their arguments, however, information from the report has not been provided. As such, I have not included consideration of that report in this decision.
k.[13] I was satisfied these matters could be determined on the papers without the need for a hearing and no party took issue with that approach.
Is the grant of the licences likely to interfere directly and substantially with the community or social activities of the native title holders?
a.[14] To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
b.[15] In reaching its decision, the Tribunal must also have regard to any other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at [27]). The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]). The term ‘social activities’ can encompass activities carried out by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (See Silver v Northern Territory at [60]).
What community and social activities do the native title holders carry out on the licences?
Wakamurru - E38/3236
a.[16] Much of the material in the affidavit evidence from Mr Muir focuses on cultural obligations regarding sites, which are said to be sites of particular significance (dealt with in my consideration of s 237(b)). In relation to community and social activities, the following evidence is relevant:
•• The area of E38/3236 (together with the licences in WO2018/0166 and WO2018/0253) forms part of a cultural landscape with connections to some significant dreaming tracks/song lines (tjukurrpa) (at 5)
•• As a wati, Mr Muir is responsible for looking after sites and making sure sacred places are respected, responsibilities which come from the tjukurrpa (at 7)
•• Other native title holders are also responsible for ensuring cultural protocols are undertaken in the proper way (for example, at 28, 32, 34)
•• There are three tjukurrpa stories which relate to this licence (and to WO2018/0166 and WO2018/0253) - the social and community activities on the licence area centre around looking after sites and the sacred cultural landscape created by the song lines (at 28)
•• If these protocols are damaged ‘this can bring an enormous sense of shame - and this is not the feeling of mild embarrassment associated with the word by whitefellas, shame is a feeling of immense responsibility. This filters through to cause personal injuries to the elders – they would feel it personally, spiritually, physically and mentally if there is significant damage to country’ (at 30)
•• Camping activity occurs (at 33)
•• There is a proposal to create a reserve for the purpose of sandalwood harvesting in the area (at 37-38)
a.[17] The proposed sandalwood reserve includes the licences described in WO2018/0166 and WO2018/0253 (see [6] above), as well as the northern portion of E38/3236. The State’s view is that sandalwood harvesting would not be subject to interference by activities of Greatland, because the sandalwood harvesting activity is at present a proposed activity.
b.[18] The Wakamurru reply outlines further information about the sandalwood harvesting, and I accept that such an activity arises from the native title holders’ exclusive rights to take and use resources from the licence area. However, because it is at the stage of being a proposed activity, I am unable to assess the nature and extent of that activity, and whether or not any impact by the activities of Greatland would be substantial. As McKerracher J outlined in FMG v Yindjibarndi Aboriginal Corporation: ‘It would be illogical for there to be a right to negotiate if the likely impact was only trivial. It also follows that interference for the purpose of s 237(b) NTA must be with the area or site itself, not with people or activities which are the subject of s 237(a) NTA’ (at 70).
Yarnangu Ngaanyatjarraku Parna - E38/3236 and E38/3237
a.[19] In relation to the YNP evidence and E38/3236, the social and community activities as outlined are provided in very broad terms. The YNP evidence mostly relates to a site which I refer to as N, located on E38/3237. Some of the information provided is protected by non-disclosure orders and so I outline it to the extent needed to make sense of these reasons for my decision.
b.[20] Mr West and Mr Murray (both identified as senior Ngaanyatjarra law men) provide information about tjukurrpa which cross the licences, and a gender sensitive site (the site I refer to as ‘N’), marked on a map of E38/3237. It is stated that N is an area where song, dance and ceremonial activities took place (which Mr West states he participated in). Each of the YNP deponents refer to N, and to certain geographical features associated with N. This evidence is supported by that provided by the anthropologists. Mr Ramasco and Ms Hueneke provide information about both E38/3237 and E38/3236, and confirm they are crossed by tjukurrpa which are of ‘great significance’ to the native title holders. However, while the sites and areas are described in detail, the social and community activities are described in broad terms only.
c.[21] Ms West and Ms Holland confirm the importance of N, and that it is an area restricted to men, however, information provided in those affidavits also refers to social and community activities only in broad terms.
What activities does Greatland intend to undertake on the licences?
E38/3236
a.[22] In the statement Greatland made in support of its application for this licence, it has outlined that its intended activities in the search for the target resource will be ‘the use of aerial photography, geological mapping, soil geochemistry, sediment and rock chip sampling, geophysical and remote sensing surveying’. There is information about the first phase of exploration but none in relation to any following phases.
b.[23] In its contentions, Greatland indicates access to the exploration targets will be via existing tracks and that ‘early stage work programs will not require ground disturbing activities’. It says it is aware of the requirements of the Aboriginal Heritage Act 1972 (WA) and it is willing to enter into the Regional Standard Heritage Agreement (RSHA). Greatland says it ‘would be agreeable to undertake a heritage survey under reasonable terms if required in order to ensure that Aboriginal Sites are not disturbed’.
E38/3237
a.[24] Greatland provided no submissions in relation to this licence. The State’s material includes the Greatland proposed work program for this licence. It is brief and outlines the type of target deposit, and that the initial stage exploration will include mapping, geophysical and remote sensing surveying, and rock chip sampling. Other activities are noted such as ‘target generation’ and ‘geological reconnaissance’, however, there is no information describing what this may involve.
What does the State submit?
a.[25] The State’s view is that the evidence submitted by both native title parties in relation to community and social activities is broad. For example, in relation to E38/3236, the State contends ‘the evidence does not show that a significant number of native title holders are engaging in social or community activities in any particular part of any of the proposed tenements on a regular basis such that there is likely to be a risk of interference’ (at 22). In relation to the contentions and affidavit evidence submitted by the YNP, the State submits that the native title party ‘does not rely upon, or make and contentions about s 237(a) or (c)’ and it follows at the Tribunal should find there is no likelihood of interference ‘within the meaning of these sub-sections’ (at 17-19).
Conclusion
a.[26] In my view, the evidence with respect to community and social activities of the native title holders is broad. The material focuses on the location and commitments of the Manta Rirrtinya People to sites of particular significance, on or near the area of E38/3236. Similarly, the evidence provided by YNP about the community and social activities of the Ngaanyatjarra people occurring in relation to both licences is general in nature.
b.[27] As can sometimes be the case in these inquiries, cultural practice is intimately intertwined with sites of particular significance to the native title holders. In this inquiry, the cultural practice of both groups has been expressed in terms of supporting the particular significance of sites and areas (which goes to s 237(b)), rather than details having been provided of the nature and extent of the activities (which goes to s 237(a)).
c.[28] Given the broad nature of the evidence provided regarding social and community activities, I am unable to conclude the activities of Greatland will substantially interfere with them.
Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
a.[29] The central issue for consideration in s 237(b) is whether there are any areas or sites of particular significance to native title holders which are likely to be interfered with (in the sense of a real chance or risk of interference) by the activities of Greatland (see Yindjibarndi Aboriginal Corporation v FMG Pilbara (at 17(a), (b) and (e)).
What areas or sites have been identified as being of particular significance to the Manta Rirrtinya People on E38/3236?
a.[30] Wakamurru provide much detail on sites and areas, which they say are of particular significance, on and near the licence. I note the evidence in Mr Muir’s affidavit is clear about which sites are believed to be on the licence, and which may not be on the licence. I accept the evidence as being accurate and compelling, as the information provided is qualified as needed where Mr Muir is not certain about a location. Where he is certain, he provides context and information about why that is.
b.[31] I list the sites and areas below, and provide my conclusions for each:
c.(a) pathways for highly significant tjukurrpa characters
The State outline in their view the information and evidence provided is too general to identify the three tjukurrpa as being of particular significance. However, I consider Mr Muir has provided sufficient information about the three tjukurrpa, including their geographical pathways in relation to this licence, and distinguishing the three tjukurrpa in terms of their sensitivities and importance to the native title holders.
I adopt [74] of Western Desert Lands v MDR, which held:
Depending on the evidence presented in a particular matter, songlines or dreaming tracks may be regarded as sites or areas of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]). In Freddie v Western Australia, Deputy President Sumner suggested that specific parts of a dreaming track might be considered sites of particular significance whereas other parts might not (at [47]). That, of course, is subject to the general requirement that the location of an area or site and the nature of it significance must be identified before it can be accepted as an area or site of particular significance (see Western Australia v McHenry; Silver v Northern Territory at [91]; WF v Emergent Resources at [68]).
I do not provide details of the areas outlined in the evidence, due to the sensitivities associated with them. However, I accept the three tjukurrpa run along the west side of E38/3236, around Kalkali and Pikalu. I accept i) the tjukurrpa go across this licence, ii) the area of the licence is a culturally significant and restricted area, and iii) the area of the licence is of particular significance to the Manta Rirrtinya People.
a.(b) a stone arrangement in or near to E38/3236 (and not far from the Pikalu rockhole)
b.[32] Mr Muir outlines geographical sites associated with the tjukurrpa which are proximate to the licence (see Mr Muir’s affidavit at 22 and 28). These sites and areas are between Carnegie track and the licence.
c.[33] Given the native title holders argument about the lack of other tracks in the area to access the licence, and in the absence of any information from Greatland about access to the licence in the context of the sites Mr Muir outlines, I accept the explorer accessing the licence from the nearby Carnegie track is a likely possibility. It would appear that this would mean a track or tracks from the Carnegie track into the licence area would need to be created.
d.[34] Mr Muir has provided some detail about a stone arrangement, sufficient for me to conclude it is part of the cultural landscape which is important to the native title holders, and that it is intertwined with the tjukurrpa stories. He outlines the consequences of not looking after such sites which are associated with the tjukurrpa (at 29), and if they are accessed by ‘the wrong people or damaged through exploration activities… [this] compromises people with responsibility for country on a spiritual and cultural level’. Given the high level of sensitivities relating to this site and the dreaming pathways, I conclude it is a site of particular significance.
e.[35] The State refers to this area as follows (at 30-32):
Stone arrangement
30. The area close to Breaden Bluff, between David Carnegie Track and the western boundary of E38/3236, is largely covered by two registered Aboriginal sites under the AHA [Aboriginal Heritage Act 1972]: 2898 Kalkali and 2896 Pikalu… Site 2896 Pikalu is described, amongst other things, as a water source in the AHIS. The Tribunal can infer that the rockhole of the same name and general location referred to by Mr Muir is within this site.
31. Mr Muir's evidence is that the stone arrangement is "not too far from" the rockhole known as Pikalu. Given the size of site 2896, the stone arrangement is likely to be within the registered site Pikalu.
32. In any event, the stone arrangement may well be an Aboriginal site in its own right, irrespective of whether it falls within and forms part of an existing registered site. Such a site is likely to be readily recognisable by a grantee party that is minded to comply with the AHA... The Grantee Party has expressly indicated that it is aware of its obligations under the AHA.
a.[36] It is not clear to me how the explorer will recognise the stone arrangement. Even if it is part of the sites recorded under the Aboriginal Heritage Act 1972 (AHA), the question I need to ask is whether, even abiding by the regulatory regime, a site such as the stone arrangement could be subject to interference for the purposes of s 237(b). The grantee’s suggestion they will use existing tracks, and the native title holders arguments against the practicality of this, are pertinent to my consideration of interference and are discussed further below.
What areas or sites have been identified as being of particular significance to the Ngaanyatjarra people on E38/3236 and E38/3237?
a.[37] For YNP, both anthropologists confirm the significance and importance of the two licences in this inquiry to the traditions of the native title holders. They confirm the nature and extent of tjukurrpa in relation to these two licences, from a male and female gender perspective, and that the stories are, in places, ‘highly sacred, very sensitive and restricted to initiated men’ (Mr Ramasco at 14). Mr Ramasco confirms one tjukurrpa pathway is ‘most likely through the tenement’ (Mr Ramasco at 17). I note that the way mapping was provided with the affidavit’s in this inquiry, E38/3236 and E38/3237 appear as a single feature rather than two distinct licences. I am satisfied, given the location of the marker points outlined by the native title holders, that the pathway of one tjukurrpa is likely to travel directly through each of these licences, and to mark important geographical features along its path, in terms of the traditions of the native title holders. This is also consistent with Mr Muir’s evidence for E38/3236.
b.[38] In relation to E38/3237, I am satisfied the area I refer to as N, as outlined by each of the YNP native title holders and the two anthropologists, is a site of particular significance because of the demonstrated cultural importance to the native title holders. The State accept this is a site of particular significance to the native title holders.
c.[39] The YNP deponents outline that one of the tjukurrpa is associated with E38/3237 and the site N. The anthropologists confirm the site I refer to as N is located on E38/3237, and is also associated with a highly significant tjukurrpa. The anthropologists outline the importance of certain tree and geographical features on and near the site N (Ms Hueneke at 10-15) and the gender sensitive nature of N. The anthropologists summarise that the native title holders who provided evidence for these inquiries, which they name, are ‘…satisfied that…N…is an important tjukurrpa place that should not be entered without the supervision of or consultation with knowledgeable people’ (Mr Ramasco at 27).
Is the grant of E38/3236 or E38/3237 likely to interfere with a site or area of particular significance?
a.[40] The State do not accept there are any sites of particular significance to the Ngaanyatjarra people on E38/3236. However, the evidence provided by Mr Muir as to the high significance of the area, is consistent with the evidence provided by YNP about the area. The evidence provided by all native title holders is consistent and cogent. The State do accept N is a site of particular significance. As outlined above, I accept there are sites of particular significance on both licences.
Wakamurru - E38/3236
a.[41] Wakamurru outline in the evidence they have concerns ‘the company intends to access the tenements somehow by creating a road off the side of the Carnegie track’ (at 12). (The evidence was directed at the licence in this matter, as well as in WO2018/0166 and WO2018/0253). Wakamurru also say ‘the activities which we can assume will be done on the tenements, if they are allowed to be granted without the company negotiating with us – such as building tracks, using equipment and knocking down trees, are all things which may appear miniscule for a mining company. However, these are activities which will significantly undermine the economic value of our natural resources…, in addition to having an immense impact on a spiritual level, both in an individual and community sense’ (at 39).
b.[42] I have not focused on the economic value of the area but rather focus on the relationship of the area to the native title holder’s traditions. These are outlined in some detail in relation to the dreaming tracks, which I accept cross this licence.
c.[43] While Greatland have indicated they intend to access this licence using existing tracks, they provide no further detail on that. The Wakamurru reply raises cogent arguments regarding the limitations of using any existing tracks (such as Carnegie track) in terms of Greatland being able to use such to access the licences, given their distance from the licences and the remoteness of the area. The State places the stone arrangement as being between the Carnegie track and the western side of the licence (see [33] above). This is consistent with Mr Muir’s evidence and mapping.
d.[44] The State’s Tengraph of a licence will often indicate whether there are tracks or other services affected by a proposed grant. The Tengraph for E38/3236 does not show any tracks or roads on the licence. While this is certainly not conclusive as to there being none, without the explorer addressing the arguments raised by the native title holders in relation to the problems using existing tracks to access this licence, it is difficult for me not to conclude activities such as merely accessing these areas would be likely to cause interference to sites and areas such as the stone arrangement, particularly given the intertwining of such an area with the dreaming tracks.
e.[45] As outlined in Silver v Northern Territory (at [89]), it is possible for an area or site of particular significance located outside the proposed licence to be taken into consideration where evidence is adduced demonstrating how the relevant activities under the grant would directly and physically affect the relevant site, and that the activities off-site are, in fact, an integral part of the activities on-site. I accept the area of particular significance in this inquiry is not isolated to the licence in this inquiry, and that there are an interconnecting set of songlines/dreaming tracks which are likely to be interfered with by activities of Greatland (for example, exploration activities on the licence, and vehicle movements and people access to and from the licence).
f.[46] I have considered the information provided by the State about their regulatory regime, particularly their contentions (at 32-39), and note the intention of Greatland to abide by that regime, in relation to E38/3236. For example, the State outline that ‘Section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter an Aboriginal site, or in any way to alter, damage, remove, destroy, conceal etc. any object on or under an Aboriginal site, without Ministerial consent under s 18 of the AHA’ (at 33). The State also note they will be including an RSHA condition on the grant of the licence.
g.[47] The State assert the AHA and regulatory regime will prevent interference with sites of particular significance, but do not specifically outline how such will be prevented. Greatland has submitted that it will comply with the AHA, but has not provided an explanation of how avoidance of sites of particular significance will be undertaken or how activities such as accessing the licence, taking into account such sites, will be covered by the AHA. As noted by the Tribunal in many decisions (see for example Tarlpa v Allarrow at [40]), the RSHA ‘only requires the conduct of surveys where ground disturbing activity is taking place’. Given the nature of sites such as the stone arrangement, interference is possible if Greatland enters the area without guidance from the native title party. This does not trigger any ground disturbing protections.
h.[48] I accept the area of the licence and sites around it such as the stone arrangement, are so sensitive, that even abiding by the regulatory regime is likely to lead to interference with the areas of particular significance to the native title holders. This is consistent with the evidence and my reasoning in WO2018/0166 and WO2018/0253.
Yarnangu Ngaanyatjarraku Parna - E38/3236 and E38/3237
a.[49] I accept E38/3237 contains a restricted area, N, which is of special or more than ordinary significance to YNP native title holders in accordance with their traditions (applying Carr J’s explanation in Cheinmora v Striker Resources at [34]-[35]). The State accept it is difficult to assess the likelihood of interference with N, given there were no materials from Greatland provided in relation to this licence, and argue that as long as the explorer can identify the site, there is likely to be no interference (at 27 of their contentions). However, it is not clear how the explorer will achieve that identification, particularly given the explorer can undertake activities on and near N, under an RSHA or the State’s regulatory regime, which they may regard as non-ground disturbing, but which the native title holders have expressed will interfere with the areas of particular significance and their traditional law and custom.
b.[50] I also accept YNP deponents have sufficiently described how tjukurrpa pathways and geographical features associated with those pathways travel through both E38/3236 and E38/3237 and can be subject to interference from fairly low threshold activities. Greatland have provided little information in response to the native title holders’ evidence or in relation to their exploration activities.
Conclusion
a.[51] I accept that even within the constraints of abiding by the State’s regulatory regime, exploration activities are likely to lead to interference with the areas of particular significance located on each of these licences to both sets of native title holders.
Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
a.[52] Neither Wakamurru nor YNP made any contentions or provided evidence in relation to s 237(c). Applying the common sense approach to evidence required by administrative tribunals (Ward v Western Australia at [26]), there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to the land or waters concerned. Therefore, I find disturbance under s 237(c) is unlikely.
Determination
a.[53] The determination of the Tribunal is that the grant of exploration licences E38/3236 and E38/3237 to Greatland Pty Ltd are not acts attracting the expedited procedure.
Helen Shurven
Member
23 July 2019
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