Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Russell Mining Pty Ltd and Another - [2021] NNTTA 34

NATIONAL NATIVE TITLE TRIBUNAL

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Russell Mining Pty Ltd and Another [2021] NNTTA 34 (1 July 2021)

Application No:

WO2020/0224

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (WCD2002/001)

(native title party)

- and -

Russell Mining Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Glen Kelly, Member
Place:	Perth
Date:	1 July 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 not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 16, 17, 18 Emergency Management Act 2005 (WA) Mining Act 1978 (WA) ss 24, 24A, 25, 57, 58, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 32, 151(2), 155, 237 Rights in Water and Irrigation Act (1914) (WA)
Cases:	Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd,[2010] NNTTA 137 (Butcher Wise v Cullen Exploration) Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia [2004] NNTTA 31 (Sharpe v Ashburton Minerals) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Frank Sampi & Others on behalf of Koongie-Elvire and Barbara Sturt & Others on behalf of Jaru v Sarag Pty Ltd and Another[2018] NNTTA 54(Sampi v Sarag) John Dudu Nangkiriny and Ors on behalf of the Karajarri People v State of Western Australia & Ors [2002] FCA 660 (Nangkiriny v Western Australia) Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (Allen v Gianni) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Bushwin) Maggie John and Ors on bahalf of the Malarngowem People/Western Australia/Geological Resources Pty Ltd; and Jack Britten and Ors on behalf of the Purnululu People/Western Australia/Geological Resources Pty Ltd [2013] NNTTA 151 (23 October 2013) (Maggie John v Geological Resources) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 (Marputu v Gianni) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd [2002] NNTTA 236 (Boddington v Richmond Resources) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC and Another v Lake Wells Exploration Pty Ltd and Another [2019] NNTTA 116 (TMPAC v Lake Wells) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (Yindjibarndi v FMG[2])
Representative of the native title party:	Andrew Topher, Kimberley Land Council

Representative of the grantee party:

Yvette Collins, Hetherington Exploration and Mining Title Services Pty Ltd

Representatives of the Government party:

Domhnall McCloskey, State Solicitor’s Office
Bethany Conway, Department of Mines, Industry Regulation and Safety

(a)

REASONS FOR DETERMINATION

Background

On 18 October 2019 the State of Western Australia (Government party) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E04/2655 (proposed licence) to Russell Mining Pty Ltd (Russell Mining). The notification day specified in the notice is 23 October 2019.
The notice for the proposed licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA). By including this statement, the Government party asserts the grant of the licence 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 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 proposed licence covers an area of approximately 32 square kilometres and is located 4 km south easterly from the Bidyadanga Community and approximately 96 km in a south westerly direction from Broome. The proposed licence is on land subject to the Karajarri native title determination (see Nangkiriny v Western Australia). The Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC (Karajarri) holds exclusive native title rights over 97.5% of the proposed licence area in trust for the Karajarri People.
On 24 February 2020, Karajarri lodged an objection application with the National Native Title Tribunal (Tribunal) in response to the Government party’s assertion that the expedited procedure applies to the grant of the proposed licence.
Initially, Member Shurven was appointed to conduct the inquiry by the President of the Tribunal. Directions were set on 5 March 2020 by Member Shurven and amended on 18 March 2020.
Due to the emergence of the COVID-19 pandemic and the declaration of a State of Emergency by the State of WA on 15 March 2020, the Tribunal issued a direction on 24 March 2020 setting out that native title parties in expedited procedure matters would be excused from compliance if they were of the view their compliance would offend against State or Commonwealth legislation or regulation, or be inconsistent with advice from an officer of the State or Commonwealth.
On 25 March 2020, the representative of Karajarri (the Kimberley Land Council or KLC) requested directions in this matter be suspended due to the setting of the Remote Aboriginal Communities Directions by the WA Commissioner of Police as State Emergency Coordinator, which placed prohibitions on movement into remote Aboriginal communities. As a result of this, Karajarri put forward they would be unable to comply with the directions of the Tribunal without offending the Emergency Management Act (2005) (WA). As such, directions for the expedited procedure inquiry were suspended on 26 March 2020.
The matter was then listed for a case management conference before Member Shurven on 26 June 2020. At that time and until early October 2020, the parties advised they were exchanging comments on a draft agreement.
However, at a further conference on 9 October 2020, the parties indicated that the matter would proceed to inquiry and Karajarri indicated an intention to request non-disclosure directions under s 155 of the NTA. Following the conference and on that same day, this request was made and as a result of an intention to provide gender restricted evidence, Karajarri also requested the Tribunal be reconstituted with a male member.
The views of the parties were sought in regard to my proposed appointment and having received no objections, I was appointed to conduct this inquiry on 26 November 2020. Non-disclosure directions were set on 10 December 2020.
In conducting this inquiry I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of the interference outlined in s 237 of the Act and subsequently whether it is an act that attracts the expedited procedure.
While the objection application from Karajarri contained statements relating to ss 237(a), (b) and (c), the contentions provided are specific to s 237(a) and (b) with Karajarri setting out that it ‘does not make any contentions in relation to sub-section 237(c).’[1] Given this, I find the grant of the tenement is not likely to involve, or create rights whose exercise is likely to involve, major disturbance as contemplated in s 237(c). As such, this inquiry is focussed on ss 237(a) and (b).
[1] Karajarri Unrestricted Contentions, [5].
For the reasons set out below I have found there is real risk of interference with the community or social activities of the native title holders and interference with areas or sites of particular significance. As such, I determine that the act, namely the grant of exploration licence E04/2655 to Russell Mining, is not an act attracting the expedited procedure.

Determination on the Papers

The Government party provided an initial set of information which includes mapping, a report from the Aboriginal Heritage Inquiry System (AHIS) setting out details and maps of recorded Aboriginal sites, a Tengraph quick appraisal, the licence application along with a heavily redacted version of the accompanying statement required by s 58 of the Mining Act 1978 (WA) (Mining Act, s 58 Statement) and the Draft Tenement Endorsement and Conditions extract outlining conditions to be imposed on the licence. The Government party also provided contentions.
Karajarri provided a set of unrestricted contentions accompanied by an unrestricted affidavit from Mr Mervyn Mulardy and a set of gender restricted contentions accompanied by a gender restricted affidavit from Mr Mulardy. Mr Mulardy states he is a ‘Karajarri determined native title holder in relation to the area of’ the proposed licence and I accept Mr Mulardy has the necessary authority to speak for country on behalf of the Karajarri People. Karajarri also provided a set of unrestricted contentions in reply to the Government Party in addition to a set of gender restricted contentions in reply.
Aside from the s 58 statement, Russell Mining has not provided any contentions or further evidence as to their activities. It must also be noted that the s 58 statement is heavily redacted and provides little detail of the proposed activities of Russell Mining.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. Having had regard to the information before me, I am satisfied the inquiry can be determined without a hearing.

The Proposed Licence and the proposed activities of Russell Mining

The proposed licence is an exploration licence proposed to be granted under s 57 of the Mining Act for a period of 5 years. Section 66 of the Mining Act sets out the rights conferred by an exploration licence, in summary, as the rights:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes[2] unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act (1914) (WA), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
[2] Prescribed in Regulation 20 of the Mining Regulations 1981 (WA)
As set out by the Government party in the endorsements and conditions for the grant of the licence, the exercise of the rights set out in paragraph [18] above requires the prior grant of a licence, permit or permission from the Department of Water and Environmental Regulation.
As previously mentioned, the s 58 statement of Russell Mining is heavily redacted. In the portion that is visible Russell Mining states that it is exploring for copper and that its exploration goals are to ‘evaluate the potential of the ground subject to [the] application based initially upon desktop evaluation to establish the potential of the area. Initial investigations will be followed up with field mapping, costeaning and metallurgical studies.’[3] It further sets out that its proposed work program, presumably for year one, consists of office based activities including desk top review, acquisition of available public information and reporting. No budget estimates or other activities are made available.
[3] Russell Mining s 58 Statement.

Legal Principles

The legal principles outlining the approach I am taking to this assessment are outlined in Yindjibarndi v FMG at [15] – [21]. In general terms, it is the role of the Tribunal to undertake a predictive assessment of whether interference in the matters outlined in s 237 is likely to occur as a result of the grant of the licence. In doing this, it is accepted that the term ‘likely’ ‘requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237’.[4]
[4] Smith v Western Australia, [23].
While a reference for legal principles adopted is provided above, I expand upon this summary for the relevant subsections following to provide further context in this determination. As such, the legal principles for the assessment regarding s 237(a) as summarised in Yindjibarndi v FMG (and cases cited therein) at [16] are that:
(a)the focus is on ‘community and social activities’ which are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the land;
(b)the term ‘community’ is contextual and ‘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 needs to be provided to identify the individuals as a community;
(c)the term ‘social activities’ is focussed towards activities of the native title group, though it can encompass activities carried out by an individual or small group in certain circumstances, such as where the activity is relevant beyond the person involved; and
(d)the level of interference with community and social activities must be substantial rather than trivial with a need for specific evidence.
In regard to s 237(b) the principles are summarised in Yindjibarndi v FMG at [17]–[18]:
(a)the area or site must be of special or more than ordinary significance to the native title holders;
(b)the site or area may be of particular significance without being registered on the Register of Places and Objects (Register of Aboriginal sites) of the Aboriginal Heritage Act 1972 (WA) (AHA);
(c)if an area or site is of particular significance it must be known, able to be located and its significance able to be explained to the Tribunal;
(d)slight interference may be unacceptable in the context of s 237(b) but the nature of interference is generally accepted as involving some type of physical intervention;
(e)the site or area will generally be located within the licence area although impacts to sites or places of special significance that are outside the licence area can be considered if it can be demonstrated that offsite activities such as road construction, truck movement to and from the license area or activities within the licence area may have a downstream impact on sites or places of special significance;
(f)there must be a real chance or risk of interference with the area or site; and
(g)the Tribunal is entitled to give regard and considerable weight to the Government Party’s Aboriginal heritage protection regime (in this case the AHA) however this does not mean that this regime will be considered to make interference unlikely under s 237(b) on all occasions.
As previously mentioned, no information has been provided by Russell Mining regarding its proposed activities beyond that outlined in paragraph [20]. It is well established following Silver v Northern Territory at [30] that in the absence of evidence from the Grantee Party, the Tribunal is at liberty to assume the grantee will fully exercise their rights and I do so in this instance.

Section 237(a): is the grant of the licence likely to interfere directly with the community or social activities of Karajarri?

What community or social activities do Karajarri undertake on the licence?

Karajarri contend that the grant of the licence is likely to interfere directly with the community and social activities of:
(a)Men’s ceremony and associated activities;
(b)hunting and preparing food;
(c)collection of resources to make Karli (boomerang) and hitting sticks;
(d)intergenerational teaching; and,
(e)collection of resources for bush medicine and ceremony.[5]
[5] Karajarri Unrestricted Contentions, [8].
Karajarri say that the tenement area is accessed regularly from the nearby communities of Bidyadanga and Wanamulnyndong (approximately 4km and 2km from the proposed licence area respectively) for the above listed activities. It is further contended that, due to the proximity to these communities and the Great Northern Highway, the proposed licence area is used more frequently and therefore the likelihood of direct interference is higher.[6] Karajarri also contend that as men’s ceremonies can occur on short notice, the ‘mere presence of the Grantee Party within the vicinity of the law ground and campground would be direct interference with a major community activity by the native title holders.’[7]
[6] Ibid, [9].
[7] Ibid, 10].
In his two affidavits, Mr Mulardy sets out extensive evidence in relation to community and social activities in the areas listed above. The most substantial component of his affidavits relate to the conduct of men’s ceremony in the tenement area. From his unrestricted affidavit he says that:
6.In the Tenement Area, there is a ‘no-go area’ for anyone who is not Karajarri to the south-west of the gravel pit and another one to the east of the Great Northern Highway. I have circled these areas on the map [referenced map not included in determination].
7.In the ‘no-go area’ in the south-western part of the Tenement Area, people walk the law through that area. A lot of that is sand country for the Yalgi (a sand goanna smaller than the regular goanna). Yalgi is very important for the Karajarri people – for men’s ceremony. We can’t say more about that to you because that’s for men only.
8.During ceremony time, travellers stay on the east side of the Tenement Area and that’s where they dress up. They couldn’t dress up for sacred ceremony if there were people from the mining company walking around there.
9.The ceremony that people come here for is part of the travelling law. There might be 100 people staying here during that time. They travel here from all over, from as far as the Pilbara and pull up by the Great Northern Highway in the Tenement Area. They know the place they have to pull up and prepare themselves for ceremony because that is the place given to them by the old people for that purpose. This has been happening since before I was born. They have to prepare themselves before coming onto country and they have to sing before going onto country. At ceremony time there is a particular song we sing. We can’t sing that here now as it’s not appropriate.
10.When I was a young fella the old people dressed me up and painted me at that same place there and ran me into the community.
…..
22.Those areas in the Tenement Area where we prepare ourselves for ceremony and walk law are ‘no-go areas’. The explorer can’t do anything there and they can’t be walking around the area when there is men’s ceremony. It’s sacred men’s country. If we were there when we’re running ceremony, they would be punished.
23.Nobody knows when the law will happen there. There’s no set time during the year. It happens on certain events, it’s a phone call away. We can’t say any more about it because it’s not appropriate. One year we had law four times. That’s why it is important for this mining company to speak to us. Otherwise there is a high chance they could be out there when we are trying to practice law on the Tenement Area and they would be punished if they were there while we are doing our sacred cultural practice.[8]
[8] Mervyn Mulardy Unrestricted Affidavit.

Mr Mulardy sets out further details of this ceremony in his restricted affidavit, the activities that surround it and the law it relates to. Mr Mulardy sets out that ceremony and activities occur exactly where the proposed licence tenement is.[9] He says there are practices associated with the law and if the wrong people knew they would be in ‘serious trouble’ under Karajarri law.[10] It is explained that there are customs restricting access at all times to these areas.
[9] Mervyn Mulardy Restricted Affidavit.
[10] Ibid.
In his unrestricted affidavit, Mr Mulardy further details activities which occur in the proposed licence area with a strong focus on hunting and the collection of bush medicines, some of which are named along with their uses. Mr Mulardy sets out that in the case of both hunting and the collection of bush medicines, the Karajarri People take younger people in order to ensure the intergenerational passage of cultural information.[11]
[11] Mervyn Mulardy Unrestricted Affidavit, [11] – [17].
From the evidence presented, it seems clear that the area of the proposed licence is subject to a substantial set of community and social activities. While the issues around hunting, the collection of bush medicine and intergenerational transfer of knowledge are of importance they are potentially not site specific. In my view however, the ceremonial activities that occur in the area are very much site specific in that they relate directly to the area of land subject to the proposed licence and can be considered as community and social activities of some significance.

Is the grant of the licence likely to interfere directly with Karajarri’s community and social activities?

The Government Party contends there is not likely to be direct interference with community and social activities as:
(a)most of the exploration activities will be low impact and non-intrusive;
(b)a large part of the Tenement is covered by a pastoral lease meaning the described activities have been carried out in conjunction with pastoral activities for a long period of time, thereby demonstrating a co-existence between community and social activities and other activities (citing Tullock v Bushwin at [122]);
(c)there are no Aboriginal communities in the tenement area;
(d)hunting and mineral exploration activities are capable of co-existence; and
(e)mineral exploration would not cause substantive interference with the ability of native title holders to access the area and the proposed licence does not carry with it the ability to control access and that ‘the slight risk that the GP, exercising its full rights under the Tenement, might physically be in the way of native title holder[s] in relation to the small area of land where they are operating on any given day … is not substantial enough to constitute interference’.[12]
[12] Government Party contentions, [20].
The Government party also detail the rights conferred by the tenement, noting that Russell Mining have not provided contentions but that ‘an indication of the manner in which it … intends to exercise the rights conferred by section 66 of the Mining Act is shown in its Section 58 (1) (b) Statement’[13] [original emphasis].
[13] Ibid, [11].
The Government party also points to the tenement endorsements and conditions in terms of protection mechanisms and states it will set a condition of the grant of the Tenement requiring Russell Mining to enter into the Regional Standard Heritage Agreement (RSHA) if Karajarri request it. The Government party does however note that no RSHA has been previously agreed by the KLC (the native title representative body for the region) but that it requires, amongst other things, that a grantee party must notify the native title party of on ground works, consult on surveys prior to ground disturbing works, carry out surveys in some circumstances, and consult with the native title party prior to any s 18 application under the AHA.
In its contentions, the Government party takes issue with the brevity of the Karajarri contentions and argue that ‘[i]t is not appropriate to simply limit ‘contentions … [to] the issues of greatest substance’ or to ‘the well – established jurisprudence of the Tribunal’[14] [original emphasis] given Karajarri have placed more emphasis on the evidence provided by Mr Mulardy in his two affidavits than on contentions. As a result of this assertion, the contentions in reply by Karajarri are more voluminous and respond in some detail to each of the assertions made by the Government party.
[14] Government Party Contentions, [4] quoting Karajarri Unrestricted Contentions at [6].
In their reply, Karajarri contend that the assertion of the Government Party that ‘most’ of the exploration activities are low impact carries with it an acknowledgement that some are not. Karajarri also contend that while the Government party points to the s 58 statement of Russell Mining as an indication of the manner in which it will exercise its rights, given how heavily redacted it is, it is of little use.[15]
[15] Karajarri Unrestricted Contentions in reply, [5].
It must be noted that in the small amount of unredacted information contained the s 58 statement it does state that initial investigations will be followed up with, amongst other things, costeaning, which is a type of trenching. Additionally, as Russell Mining has not provided any information otherwise, it can be assumed it will exercise all of their rights under the licence which includes those things set out in paragraph [18] of this determination. Karajarri contend that activities of this type cannot be considered unlikely to interfere with the carrying on of community and social activities.
In relation to contentions made in regard to the pastoral lease, Karajarri point out that the determination in Tullock v Bushwin (as referred to by the Government party) relates to a general obligation of the native title party to look after country. Karajarri contend this is distinguishable from this case as it is a specific activity that is contemplated in this instance, being the conduct of law and ceremony in addition to camping and hunting for this law and ceremony on specific areas of land within the proposed tenement area.[16] In support of their contention, Karajarri reference paragraph [112] of Tullock v Bushwin which states that:
If a native title party regularly camps at a particular spot and the explorers wish to establish an exploration camp at the same place and drill or use earthmoving equipment in the near vicinity of it then it can readily be said that there is a real risk that the community and social activities would be directly interfered with. On the other hand, it is difficult to see how the establishment of such a camp would interfere with the native title party’s ability to carry on the community activities associated with looking after country which have been identified and relied on by the native title party in a direct or proximate way.
[16] Karajarri unrestricted contentions in reply, [6]-[8].
Additionally, Karajarri point out that the pastoral lease is held by the Karajarri People themselves which is inferred by the determination of exclusive possession native title rights over the area. In light of this, Karajarri makes the contention that it is ‘reasonable to infer that the NTP manages the pastoral lease in such a way to avoid and mitigate against any interference with community and social activities.’ I agree this is a reasonable inference.
In relation to the contention there are no Aboriginal communities in the tenement area, Karajarri argue that while they acknowledge this is the case, there are a number of communities within close proximity to the proposed licence area (which includes the large community of Bidyadanga) and cite a number of Tribunal decisions which acknowledge that activities may be more frequent in proposed tenement areas where communities are in proximity.[17] This is contextual however, with Karajarri also providing the example of Sampi v Sarag at [22] which sets out that ‘[w]hile the proximity of Aboriginal communities to a proposed licence area may indicate activities are more [frequent] on the proposed licence area, this must be accompanied by evidence that the native title parties do conduct such activities on the licence on a regular basis’.
[17] Karajarri unrestricted contentions in reply, [10] citing Maggie John v Geological Resources at [42], Butcher Wise v Cullen Exploration at [36].
Responding to the Government party contention that mineral exploration and hunting are capable of co-existence, Karajarri accept that while the Government party has not cited examples or authorities, it acknowledges that the Tribunal has found this to be the case in the past. The Karajarri then contend that while this may be the case, this should not be taken as a general principle and in this instance there is evidence that a portion of the hunting taking place is associated with ceremony as outlined in the gender restricted affidavit of Mr Mulardy.
I agree with the Government party that it is possible that hunting and mining exploration may coexist in certain situations but also note that this depends on the evidence before the Tribunal. In its contentions, the Government party argue that taking an alternate view would require ‘particular and very unusual evidence’,[18] a statement rebutted by Karajarri who argue that assessment requires the Tribunal to examine the evidence before it.[19] In a sense, both of these statements amount to the same thing: that the evidence from a native title party needs to carry the contention that the described activities are conducted on the licence area on a regular basis. Per Sampi v Sarag at [22], it is my view that Karajarri successfully provide this evidence on this occasion.
[18] Government Party Contentions, [20].
[19] Karajarri Contentions in Reply, [11].
The Government party argues that ‘it is difficult to envisage how mineral exploration activity will cause substantive interference to the ability of the native title holders to access the Tenement.’[20] Karajarri respond, correctly in my view, that issues around access are neither its case nor the question asked by s 237(a). Perhaps more importantly, the Government party makes the assertion that there is a slight risk of Russell Mining exercising its full rights in relation to a small area in which they may be operating on any given day and this is not substantial enough to constitute interference.[21] In reply, Karajarri point out the heavily redacted nature of the s 58 statement and assert that because of the lack of information of Russell Mining’s work program the assertion of the Government party cannot be supported by any evidence.[22] I agree with Karajarri on this and have set out at [24] my assumptions regarding the activities of Russell Mining.
[20] Government Party Contentions, [20],
[21] Ibid.
[22] Karajarri Contentions in Reply, [13].
The most compelling element of the contentions and evidence of Karajarri is the law business and ceremony that occurs in the proposed licence area and the activities that are associated with this, namely preparation for ceremony, camping and hunting activities that are directly related to the ceremonial activities described in Mr Mulardy’s affidavits. These activities are specific in nature, occur or are directly specific to the land covered by the proposed licence and occur regularly.
Further to this, Mr Mulardy describes ceremony which is gender restricted and is also restricted to initiated men, meaning there is a prohibition for uninitiated men (including uninitiated Aboriginal men) from hearing the song associated with the ceremonial activities or witnessing the ceremony. As set out previously, Mr Mulardy also states that the men couldn’t prepare for ceremony if there was a presence from Russell Mining personnel at the time.[23] Mr Mulardy also points out that the ceremony he refers to can occur on more than one occasion in any given year.[24]
[23] Mervyn Mulardy Unrestricted Affidavit, [8].
[24] Ibid, [23].
In conducting this assessment it is useful to recall Smith v Western Australia at [26] which sets out in part that:
[t]he 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.
With this in mind, while it is true that exploration activities are temporary and limited in nature, Russell Mining have not described their activities in any detail. In the absence of any detailed information or evidence from Russell Mining aside from field mapping, costeaning and metallurgical studies, I must also assume it is likely to exercise all of its rights which include those activities outlined at paragraph [18] of these reasons at some point across the time it is the holder of the licence.
Mr Mulardy describes a set of activities that are specific to the proposed licence area that are of significance to the community and the broader law and custom of the area. It seems clear that, given the cultural restrictions and prohibitions that are associated with the activities as described by Mr Mulardy, mining exploration activities, be it low impact field study or higher impact costeaning, drilling or excavation, are likely to interfere directly with their conduct in a manner which is substantial rather than trivial. It could be expected, however, that this interference could be mitigated if not entirely eliminated with some form of agreement between Russell Mining and Karajarri.
Because of this, it is my view that activities allowed by the grant of the proposed licence will result in the direct interference with Karajarri’s community and social activities as contemplated by s 237(a).

Section 237(b): is the grant of the licence likely to interfere directly with areas or sites of particular significance to the native title holders?

Are there sites or places of particular significance according to the traditions of the Karajarri?

Karajarri contend there are sites and areas that are, by themselves and collectively, of particular significance to the native title party. These are:
(a)law grounds associated with men’s ceremony;
(b)camp ground associated with men’s ceremony; and
(c)a jila/lirri (spring) in the north western corner of the proposed licence area.[25]
[25] Karajarri Unrestricted Contentions, [11].
In their contentions Karajarri emphasise the law grounds and that ‘[t]here is a high likelihood that ground-disturbing activity within the Tenement Area, without appropriate consultation with native title holders, will physically disturb sacred resources of the native title holders … and physical sites of great importance to the native title holders.’[26] Aside from this, Karajarri rely on the evidence provided by Mr Mulardy who in his unrestricted affidavit sets out that:
6.In the Tenement Area, there is a ‘no-go area’ for anyone who is not Karajarri to the south-west of the gravel pit and another one to the east of the Great Northern Highway. I have circled these areas on the map [referenced map not included in determination].
7.In the ‘no-go area’ in the south-western part of the Tenement Area, people walk the law through that area.
8.During ceremony time, travellers stay on the east side of the Tenement Area and that’s where they dress up. They couldn’t dress up for sacred ceremony if there were people from the mining company walking around there.
….
18.In the north-west corner of the Tenement Area there is a jila (spring), and to the east of the Tenement Area, not far from Wanamulnyndong is the pulany – rainbow snake. If pulany is in a place, like a jila or lirri, we can’t just go there. We have to introduce ourselves in the proper way. The explorer could walk straight past a jila and not know it’s there. Some of them are hard to find, you wouldn’t know they’re there unless you have knowledge of them. You can see them from the green, sometimes there are birds there, sometimes the old people have to show us where they are. If the explorer dug a jila, it would break our heart because it’s a very important site for Karajarri people. We have had someone do that in the past, the old people showed them the water near Wanamulnyndong, and they dug it up. If the explorer digs at a jila it will be hurting the pulany – the rainbow serpent.
19.If people like the explorer, go where they shouldn’t or if they don’t introduce themselves in the right way, it will make the pulany angry because they didn’t abide by the laws. Those people might die, get sick or a big storm might come. This has happened plenty of times before. You could have clear blue skies but if people don’t do these things, you will see clouds coming.[27]
[26] Ibid, [12].
[27] Mervyn Mulardy unrestricted affidavit.
Mr Mulardy provides further details in his restricted affidavit in relation to ceremonial grounds. This restricted evidence details components of the ceremony that takes place and the area in the proposed tenement in which it takes place. Mr Mulardy further expresses that (as also quoted at [28] of this determination) access to these areas is restricted at all times.[28]
[28] Mervyn Mulardy restricted affidavit.
The Government party contend that general evidence is not sufficient to establish that a site is of particular significance[29] but make no contentions regarding their view of whether the sites described by Karajarri are of particular significance and instead focus on the likelihood of interference should it be found they are. Because of this, the Karajarri contentions in reply also deal mainly with whether interference is likely or not.
[29] Government party contentions, [22].
Karajarri argue that Mr Mulardy has provided clear and specific evidence as to the particular significance of the law ground, camp ground and jila.[30]
[30] Karajarri contentions in reply, [14]
In relation to the law grounds, Mr Mulardy attests to the high significance of the area (particularly for Karajarri men) and sets out details of the ceremonial activity that takes place in that location and the Karajarri law it is based on.[31] As detailed previously, Mr Mulardy also states the area is visited for ceremonial purposes by people from long distances, including the Pilbara[32], and therefore has a broader significance. Mr Mulardy also sets out there are entry restrictions that relate to the law ground because of its significance and the activities that occur there. Given this evidence and the specifics of the information provided, I am prepared to accept the law grounds are a place of more than ordinary significance to the Karajarri People in accordance with their traditions.
[31] Mervyn Mulardy restricted affidavit, [5]-[13].
[32] Mervyn Mulardy unrestricted affidavit, [9].
The jila are described in similar terms. Mr Mulardy describes the jila as very important to the Karajarri people[33] and in his affidavit he sets out a general location within the proposed licence area followed by a description of a relatively extensive set of cultural protocols required when approaching or visiting such a place and the consequence of not doing these things.[34] Given what is described are sources of water, it stands to reason that sites such as this are of significance and have strongly adhered to cultural practices which surround them. Like the law ground, from the evidence and specific information provided, I am also prepared to accept the jila is of particular significance to the Karajarri People.
[33] Ibid, [18].
[34] Ibid, [18]-[20].

My first observation on the camp ground is that the evidence provided has an initial focus on the activities undertaken on it being interrupted rather than the place itself being disrupted. Mr Mulardy does however describe how people come from long distances, that they know the place they are required to go to in order to prepare for ceremony and that this ‘is the place given to them by the old people’.[35] It would appear from Mr Mulardy’s evidence that this place is a gathering and commencement place where ceremonial participants ‘prepare themselves before coming onto country and they have to sing before coming onto country.’[36]
[35] Ibid, [9].
[36] Ibid.
From my point of view, this indicates the camping ground is also an area of more than ordinary significance according to the traditions of the Karajarri. It is not an ‘ordinary’ camp ground in the sense that it is used simply as a place to stay, rather it is an allotted place which forms the opening component of the law business and ceremony which occurs in the proposed tenement area and therefore forms an integral component of this. It may be that activities like this could occur elsewhere, however Mr Mulardy has indicated this place was allotted for this purpose prior to his birth, indicating use for this purpose over an extended period of time. Because of these factors, I am also prepared to accept the camp ground as a place of particular significance.

Is there likely to be interference to the places?

The Government party’s contentions focus on the proposal that should the Tribunal determine there are areas or sites of particular significance, that interference is not likely as:
(a)by virtue of the evidence of this inquiry, Russell Mining is aware of these areas and of its legal obligations towards these places. Further, execution of a Regional Standard Heritage Agreement (RSHA) provides Karajarri with the opportunity of invoking the conditions of the RSHA. The RSHA will also be part of the conditions placed on the tenement by the Government party;
(b)the activities of Russell Mining will be low impact and the endorsements and conditions placed on the proposed licence will ‘prevent or mitigate any concerns as to the negative or permanent effects of exploration activities.’[37]
(c)the proposed licence is largely covered by pastoral lease and activities conducted by Russell Mining would be no more significant than previous and continuing pastoral use of the Tenement area; and
(d)the AHA is likely to prevent interference as:
i.an Aboriginal site (AHA s 5) which is not on the register of Aboriginal sites is protected by s 17 of the AHA and requires consent under s 16 or s 18 for it to be disturbed; and
ii.in a s 18 application, the Aboriginal Cultural Materials Committee (ACMC) would need to be satisfied of consultation with relevant Aboriginal people, including Karajarri and that any s 18 consent would likely to be subject to Ministerial conditions ‘requiring development of a Cultural Heritage Management Plan in consultation with’ Karajarri and reporting on heritage outcomes.[38]
[37] Government Party Contentions, [23].
[38] Ibid, [23].
As with s 237(a), the contentions in reply by Karajarri on s 237 (b) are more extensive than the original contentions. In relation to points (a) and (d) of the Government party’s contentions above, Karajarri argue that while Russell Mining may now be aware of the existence of sites and areas, it is not aware of specific locations or the specific boundaries of these places and that as this is the case, interference is likely.[39] Karajarri continue by setting out that although the Government party does not specify the legal obligations it is referring to in point (a), it makes the assumption that it is referring to the AHA.[40] I note that in addressing this, Karajarri also substantially address point (d) of the Government party contentions.
[39] Karajarri Contentions in Reply, [16]
[40] Ibid.
Karajarri argue that the AHA is not designed to protect sites where there are traditional laws and customs for accessing those sites as it acts in a manner that deters physical damage rather than access and interference and as such, offers no protection.[41] Karajarri also note that it is open to Russell Mining to seek consent to damage or destroy sites under s 18 of the AHA without consultation with the Karajarri or any Aboriginal person as this is not required or mandated by the AHA. This, Karajarri argue, does nothing to mitigate the risk of interference.[42]
[41] Ibid, [16]-[19].
[42] Ibid, [20]
While the Tribunal has on many occasions found that the AHA and the protections afforded by it are sufficient to prevent interference, in the circumstances a grantee party has provided overly broad or insufficient evidence of their planned activities it has found otherwise, such as in Boddington v Richmond Resources at [22] and [23], Sharpe v Ashburton Minerals at [44] and Yindjibarndi v FMG[2]. The approach in the latter was upheld by the Federal Court in FMG v Yindjibarndi at [39] and [40]. I adopt similar approaches on this occasion.
It is assumed that Russell Mining will fully comply with the laws and regulations that it is required to. The issue here isn’t the compliance of Russell Mining, rather it is whether this is sufficient to overcome any real risk of interference, inadvertent or otherwise. This is considered alongside the previously outlined assumption at paragraph [24] that Russell Mining can and will fully exercise their rights.
In relation to the AHA, to attract its protection in the first instance, the places described would need to satisfy one of the four components of s 5. Although it seems clear the law ground would (in s 5(b) of the AHA), this is less certain for the camping ground and the jila. For the purposes of this determination however, I am assuming the ACMC would find each of these places fulfil the requirements of s 5 of the AHA and are therefore subject to the AHA.
There is merit in the point raised by Karajarri that the AHA is not designed to protect sites where there are traditional laws and customs placing prohibitions on access itself. Section 17 of the AHA, which outlines offences under the AHA, focusses on physical damage or alteration of a site or damage or removal of physical objects from a site. The implication of this is a s 18 permit would not be required for physical access to the law ground for on foot survey or four wheel drive access for example, as this would not necessarily be regarded as interference by the AHA. According to Karajarri law and custom however, it would as it would breach the cultural prohibitions placed on access to the area.
It could be expected that s 17 of the AHA would cover almost all circumstances that are of concern to Aboriginal people. However it needs to be contemplated that there will be a small number of sites that are of such significance to the native title holders that this isn’t the case, particularly those with access prohibitions. The law ground in particular, appears to be one such place. This is not only because of the ceremony that is conducted on it but because the ceremony and law business are based on specific things that occur in that location which then give rise to prohibitions on access. Because of this, simple physical access itself is regarded as interference by the Karajarri. In this circumstance though, that is simple access, it would seem a s 18 permit would not be required and this activity would fall outside the AHA.
Although this may be the case here, just as I have assumed that these places would be viewed as fulfilling the requirements of s 5 of the AHA, I am assuming that in order to conduct its work program, Russell Mining will be required to seek one or more s 18 permits to disturb sites. This is by virtue of the fact that, as a holder of an exploration licence, it is reasonable to expect that it intends to conduct ground disturbing activity, necessitating the need for a s 18 permit. The circumstances in which Russell Mining would not be required to seek a s 18 permit is if it intended to avoid sites, however this would require liaison with Karajarri and the conduct of site avoidance surveys. Russell Mining have not provided evidence that it would seek to do this.
While the Government party contend that during the course of seeking a s 18 permit, the ACMC would need to be satisfied of consultation with relevant Aboriginal people, there is, as Karajarri point out, no requirement in the AHA for a s 18 applicant to engage in consultation with Aboriginal people. It may be that the ACMC has taken a policy position that this must be the case, however the Government party has not provided any material or further evidence to show this. Just as Karajarri are required to make out their case and provide evidence to support their assertions, so must the other parties. The Government party has not done this here and as such, it cannot be assumed that a s 18 applicant will or could be compelled to consult with Aboriginal people.
While this may be the case, it remains useful to examine the circumstance where consultation may occur in a manner consistent with the Government party’s assertions. The Government party points out that if consultation were to occur it would be ‘with relevant Aboriginal people, including Karajarri’[43] which suggests consultation could be with others aside from Karajarri. This seems at odds with the determination of native title given the proposed licence area is covered almost entirely by exclusive possession native title in favour of the Karajarri people and includes ‘the right to maintain and protect important places and areas of significance to the Karajarri people under their traditional laws and customs on the land and waters.’[44]
[43] Government Party Contentions, [23].
[44] Nangkiriny v WA, [4](a)(v).
At the very least the Government party’s statement is inclusive of Karajarri people which would seem to mitigate the possibility of non-Karajarri people being consulted. The possibility of non-native title holders being included in any process would appear to remain though, along with a potential for any advice provided to the ACMC and subsequently the Minister to be diluted or misdirected by non-Karajarri people.
In relation to the Minister, the Government party also argues that s 18 consent would likely be subject to Ministerial conditions requiring the development of a cultural heritage management plan in consultation with Karajarri and reporting on heritage outcomes. The Government party has not provided evidence to support that such a Ministerial condition would be set, and in keeping with this points it out as a likelihood rather than as a certainty in its contentions. This would seem correct given the advisory role of the ACMC and the Ministerial discretion involved in such decisions, leaving open the possibility or even likelihood that such a condition will not be applied.
In any case, it would seem logical that if a cultural heritage management plan were to be constructed, this would occur prior to any s 18 process and that any s 18 application would arise from it. Additionally, a cultural heritage management plan is the type of outcome that would more normally be expected as a result of an agreement arrived at through a s 31 negotiation process rather than the expedited procedure and a s 18 process.
As it stands with the current information, any s 18 permit would be over a general area, if not the entire proposed licence area given the specific location of the sites are not known to Russell Mining, and this would provide it with an ongoing ability to disturb or damage sites. This could be subject to consultation and conditions, however these cannot be entirely guaranteed and there is a risk that with a s 18 permit achieved, site disturbance is sanctioned and able to proceed.
From this I draw a similar conclusion to that of Deputy President Sumner at [22] and [23] of Boddington v Richmond Resources. That is that the area covered by the proposed licence contains some areas of particular significance whose general locations are known but whose specific locations are not. These would be likely to be interfered with unless the specific and close guidance of the Karajarri is sought beyond what may be contemplated in a s 18 process.
The broader issue here however, is the assumption that s 5 of the AHA would apply to any of these places and the extent to which the assertions of the Government party in relation to the protective extent of the AHA are supported by a body of evidence. In Marputu v Gianni President Dowsett sets out that:
When a traditional owner fails to identify, with sufficient precision, sites said to be of particular significance, the Tribunal might well infer that the Act may offer a sufficient degree of protection against any adverse impact such as that contemplated by s 237(b). Where, as here, the sites and concerns are particularized, one would expect that the State, or the proposed grantee would identify the way in which the AH Act is said to apply so as to reduce the risk of adverse impacts. There has been no real attempt to do so.[45]
[45] Marputu v Gianni, [62].
The Government party have outlined a number of processes and their preferred outcomes, but provide no real evidence to show how these preferred outcomes will be achieved. It would be a reasonable expectation in approvals processes for Government parties to develop policy, Departmental and Ministerial guidelines, criteria and similar materials to provide guidance and assurance to parties in those processes. None of these types of materials have been provided here, if they exist, and instead there are a series of assertions that on the face of it seem reasonable, but are not supported by any real evidence they will actually come to fruition. As a result, I draw the same conclusion as President Dowsett in Marputu v Gianni at paragraph [64] that ‘[i]n the absence of some explanation as to how the AH Act may protect the sites, I find the State’s assurance to be of little comfort in considering the likelihood of interference with them.’
As such, I am of the view there is a real risk of interference with these sites without discussion and agreement between the parties in a way that could be expected to be developed and agreed in a s 31 process.
On the matter of the RSHA, Karajarri note that while the issue of the RSHA is relevant, similar agreements in other regions are not endorsed by Karajarri with one of the reasons being they do not require consultation for low impact activity. Karajarri contend that in the current case, it is evident that even low impact activities would constitute interference to the areas of significance due to the nature of the places, the activities that occur on them, the prohibitions on access to all but a certain group of the community and the body of law and custom that is in place to regulate access to them.[46]
[46] Ibid, [21]
While the terms of the RSHA have not been brought into evidence in this inquiry, it seems likely it would contain terms that are advantageous to Karajarri. Even so, like in Allen v Gianni at [66], it seems optimistic to rely upon entry into an agreement not negotiated by the parties themselves and relying terms one of the parties is clearly not satisfied with. This is compounded by the Karajarri contention that even if it were to enter into the RSHA, there would remain activities that can be undertaken that do not trigger consultation but would constitute what Karajarri have put forward as interference through a potential to access the sites detailed in this determination.
As a result of this and similarly to Allen v Gianni at [71] and Marputu v Gianni at [66], I am satisfied the concerns of Karajarri are reasonable and neither the offer of the RSHA nor the contended terms of the RSHA adequately overcome the risk of interference. Again on this point, it is my view that a s 31 negotiation process would be likely to procure an agreement that is of satisfaction to the parties and which would overcome any perceived shortcomings of the RSHA.
In regard to point (b) that the activities of Russell Mining will be low impact, Karajarri assert the Government party has not provided sufficient evidence to support this contention.[47] Karajarri further note that the Government party does not specify how the proposed endorsements and conditions will prevent interference and argue that ‘it is difficult to see how the proposed conditions will prevent interference with the law ground or the jila under the traditional laws and customs.’[48]
[47] Karajarri Contentions in Reply, [22].
[48] Ibid.
The endorsements and conditions proposed to be imposed by the Government party are of some note and in my view demonstrate the Government party approaches activities that may occur on an exploration licence with some seriousness. This is further demonstrated by those endorsements and conditions that are highlighted at paragraph [13] of the Government party contentions which look to have in mind the sensitive access and use of land with the addition of extra procedures prior to certain activities occurring.
While I hold the view the endorsements and conditions to be applied are sensible and useful, the question is whether they will overcome the risk if interference with sites of special significance I have outlined. In my view, the answer is not in this circumstance.
While there is quite obviously a view to ensure ground, environmental and heritage disturbance is minimised, this looks to be in processes that occur without input from Karajarri or are tied to the processes of the AHA and RSHA. While these processes are likely to overcome the risk of disturbance in most circumstances, given the specific traditions that surround the sites discussed in this determination and the prohibitions that surround their access, I am not of the view that this is the case here.
In relation to point (c) that the proposed licence area is largely covered by pastoral lease and activities conducted by Russell Mining would be no more significant than previous and continuing pastoral use of the Tenement area, Karajarri contends this argument should be rejected noting previous arguments raised in relation to the ownership of the pastoral lease as set out in paragraphs [37] and [38] of this determination. In any case, Karajarri assert the assessment of there being little difference between mining exploration and pastoralism is of little utility as, just as there is little evidence of Russell Mining’s proposed activities over the life of the proposed licence, the Government party has provided no evidence of any particular pastoral activities taking place on the proposed licence area,[49] with the inference being there is no useful comparison to be made between the two sets of activities.
[49] Ibid, [23].
Karajarri further assert that, following Sampi v Sarag at [41], any previous interference does not necessarily mean the areas of particular significance have lost their traditional importance, or that further disturbance would not constitute interference. I would agree with Karajarri on this; that any previous interference does not mean a site of particular significance is necessarily diminished, although this may not be the case if it was heavily degraded. There has been no evidence of previous interference provided here however, with the sites also being engaged in contemporary use that supports the ongoing practice of the law and custom of the Karajarri people.
As at [38] of this determination, it is reasonable to infer that because the pastoral lease is itself owned by the Karajarri people, it would be managed with sensitivity towards and cater for the cultural activities and sites of the Karajarri people. This cannot be said for exploration activities unless there is some form or agreement in place which ensures this.

Additionally, while I agree with the Government party that exploration activities can be ephemeral and low impact, an exploration licence also allows for ground disturbing activity such as trenching and excavation in localised areas that go beyond what would normally be expected of pastoral activities. As such, I agree with Karajarri that a comparison between the two activities is not of great utility and note the potential of certain exploration activities as being of much higher impact.
Because of this, it’s difficult to come to the conclusion inferred by the Government party; that because there was and continues to be pastoral use, exploration is unlikely to interfere with sites of significance. The two activities are unrelated, have different impacts and are managed differently. Further to this, there has been no evidence provided by the Government party on previous and current pastoral use from which to make a useful comparison. As a result of this, I can only reach a conclusion like that of Member Cooley in TMPAC v Lake Wells,[50] that previous physical disturbance from pastoral activities would appear unlikely to mitigate the kind of interference that is of concern to Karajarri in this case.
[50] TMPAC v Lake Wells, [97] – [100].
Because of these factors, it is my view that activities allowed by the grant of the licence are likely to result in interference with sites of particular significance as contemplated by s 237(b).

Determination

I am not satisfied the grant of the proposed licence is unlikely to interfere with the social activities of the Karajarri People and I am not satisfied the grant of the proposed licence is unlikely to interfere with those places I have accepted as sites of particular significance for the Karajarri People.
I determine the grant of E04/2655 is not an act attracting the expedited procedure.

Glen Kelly
Member
1 July 2021