Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another - [2019] NNTTA 70

NATIONAL NATIVE TITLE TRIBUNAL

Kevin Allen & Others on behalf of Nyamal #1 v Peter Romeo Gianni and Another [2019] NNTTA 70 (17 September 2019)

Application No:

WO2018/0839

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

- and -

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

Kevin Allen & Others on behalf of Nyamal #1 (WC1999/008)

(native title party)

- and -

Peter Romeo Gianni

(grantee party)

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State of Western Australia

(Government party)

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

Tribunal:	Ms Nerida Cooley, Member
Place:	Brisbane
Date:	17 September 2019

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 – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Native Title Act 1993 (Cth) ss 29, 31, 32, 146, 151, 237 Mining Act 1978 (WA) ss 57, 58, 61, 66 Aboriginal Heritage Act 1972 (WA) s 5
Cases:	Albert Little & Ors v Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (Little v Lake Moore Gypsum) Kevin Allen and Others (Njamal) v Sorrento Resources and Another [2017] NNTTA 33 (Njamal v Sorrento Resources) Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni [2019] NNTTA 18 Tjiwarl (Aboriginal Corporation) RNTBC v Peter Romeo Gianni [2019] NNTTA 53 Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (Ward v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representative of the native title party:	Mr Ashley Truscott, Arma Legal

Representative of the grantee party:

Mr Peter Gianni

Representatives of the Government party:

Mr Lachlan Geddes, State Solicitor’s Office

Mr Michael McMahon, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

INTRODUCTION

On 27 June 2018, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E45/5184 to Peter Romeo Gianni (Gianni). The notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the NTA, which would, subject to any objection, allow the licence to be granted without negotiation under s 31 of the NTA.
The area of the proposed licence is situated in the Pilbara region, wholly within the area of a native title determination application made by the Nyamal #1 native title claim group. On 26 October 2018, the registered native title claimant for the Nyamal #1 claim (Nyamal) lodged an objection against the State’s inclusion of the expedited procedure statement.
The President of the Tribunal has directed me to constitute the Tribunal for the purposes of determining, under s 32(4) of the NTA, whether the grant of the licence is an act attracting the expedited procedure.
For the reasons outlined below, my determination is that the licence is not an act attracting the expedited procedure.

ISSUES AND APPROACH

Under s 237 of the NTA, the grant of the licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders, (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
These are the issues I must consider in determining whether the expedited procedure applies to the proposed grant.
The legal principles regarding the approach to s 237 are well established and are conveniently summarised in Yindjibarndi v FMG at [15]. Overall, my task is to undertake a predictive assessment by considering what is likely to occur under the licence. Depending on the circumstances, evidence of the grantee party’s intentions may be relevant to that assessment.
There is no determination of native title in relation to the area of the licence. However, Nyamal is the registered native title claimant for the area and, consistent with the approach in Little v Lake Moore Gypsum (at [62]), I accept for the purposes of this inquiry, that Nyamal are the correct people to provide evidence and contentions for the Tribunal’s predictive assessment in relation to s 237(a) and (b).

DETERMINATION ON THE PAPERS

All parties have provided contentions in accordance with the Tribunal’s directions.
The State also provided evidence including mapping, a Tengraph Quick Appraisal form, search results from the Department of Planning, Land and Heritage Aboriginal Heritage Inquiry System (AHIS Searches), the licence application and accompanying statement, and details of proposed endorsements and conditions to be imposed on the grant of the licence.
Nyamal’s evidence comprised two affidavits of Mr Kevin Allen, a Nyamal elder and a member of the applicant for the Njamal #1 claim. Mr Allen’s Nyamal name is Milgoowana and his Warinbina is the wedge tail eagle, which is his animal totem. Mr Allen says, and I accept, that he has authority to speak for the licence area.
The Tribunal also prepared, and circulated to parties, a map of the area in and around the proposed licence (Tribunal Map). The State and Nyamal consented to the use of the Tribunal Map. Gianni did not respond, however, when circulating the map, the Tribunal had indicated that no reply would be taken as acceptance.
All parties agreed to the matter being determined on the papers as permitted by

s 151(2) and, having regard to the information before me, I am satisfied that the inquiry can be adequately determined without a hearing.
There are two matters I wish to highlight in relation to the evidence provided by the parties.
Nyamal’s reply
In its reply dated 18 April 2019, Nyamal referred to new information about the significance of parts of the licence area, said to be based on instructions from Mr Allen. The State requested a right of reply to this new material, which was appropriate, and I afforded the same opportunity to Gianni. Gianni’s reply addressed the substance of this new material, as did the State’s, but the State also objected to the manner in which the information had been introduced. Nyamal then asked for more time to obtain additional affidavit evidence, which they said would also include further new evidence, but didn’t outline what that evidence was or how it would assist the inquiry.
At that stage of the inquiry, there was no reasonable basis to allow Nyamal to file additional unspecified material. However, I did allow Nyamal a short period to obtain an affidavit from Mr Allen with respect to the information raised in Nyamal’s reply. The State had already indicated that it would not object to that course. While Gianni objected to further delays, I was satisfied that the short extension would not cause significant delay to the inquiry, particularly given both the State and Gianni had already had the opportunity to reply, and had replied, to that information.
Nyamal then provided Mr Allen’s second affidavit dated 4 June 2019, limited to the matters contained in its reply.
Other Heritage Places
The State had initially provided an AHIS Search of Other Heritage Places with respect to a different tenement. This error was identified by the Tribunal and the State provided the correct search on 15 April 2019. The search disclosed two sites in the area of the licence, Coppin Gap – Kulkangunya and Coppin Creek - Kulkangunya. The correct search was provided after Nyamal’s contentions had been provided, but prior to Nyamal’s reply on 23 April 2019. No party raised an issue in relation to the late provision of the correct search and I am satisfied that the parties had sufficient opportunity to consider this material. I note also that the Coppin Gap – Kulkangunya site is directly referenced in Nyamal’s Form 4 objection and both sites have previously been considered by the Tribunal in Nyamal v Sorrento Resources. This decision is discussed further below.

THE LICENCE AND PROPOSED EXPLORATION ACTIVITIES

The licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (Mining Act). Under s 61 of the Mining Act exploration licences are granted for an initial term of five years, and may be renewed. Section 66 of the Mining Act prescribes the activities which may be undertaken by the holder of an exploration licence.
The Tengraph Quick Appraisal form lodged by the State shows that the area of the proposed licence is 12.8187 square kilometres and is subject to the following land tenure:
·Pastoral Lease PL N050199 (Yarrie) (83.72% overlap); and
·“A” Class Reserve Preservation of Natural Formations R31047 (Reserve) (16.28% overlap).
There are two mining leases, one general purpose lease and one exploration licence which overlap the area of the proposed licence, but only to a minor degree, the largest being by 2.51%. There is also evidence of historical mining tenements in the licence area.
The State’s material includes Gianni’s licence application and accompanying statement as required by s 58 of the Mining Act. The State has, in its contentions, noted that this statement indicates an exploration expenditure budget of $22,500. However, according to the statement that amount is the proposed expenditure for the first year of the term only. The scope of the work program detailed in the statement is also directed at the first year of the term, apart from noting that “follow up exploration may include drilling”. Beyond year 1, there is no detail provided about the activities proposed by Gianni or where on the licence they might occur.
Gianni has not provided any evidence for the inquiry but, in his contentions, he has included the following additional information about the proposed exploration activities:
The proposed exploration activities are at the infancy/early stage and if no early favourable indications are present the Tenement will be relinquished very quickly.
The initial work proposed to be undertaken on the licence will consist of
·A review of historical exploration undertaken on the tenement area and recovery of the open file literature;
·Determine whether and what type of geophysical surveys have been undertaken historically on the tenement area and recover and reprocess this data.
·If needed, collect additional geophysical data (this may be in the form of a ground survey). This would be an electro-magnetic survey on the surface to collect information.
·Assuming worthy exploration targets are generated from the afore mentioned survey, propose drill sites for first pass drill holes and if required, undertake heritage surveys prior to commencement of drilling.
If the drill hole program was successful then diamond drilling would be undertaken.
Again, this information is primarily directed at initial exploration activities only. What is unknown is the extent to which, and where, worthy exploration targets will be identified, and the extent of any drilling program which may follow.
Similarly, it is not to the point to say that the licence will be relinquished if the initial activities don’t show favourable expectations. That may well be the case if the licence area is not prospective. What is not clear is what will occur if the area is prospective.
On the basis of what is before me, it is reasonable to infer that Gianni may avail himself of the full suite of rights available under the licence.
The State has also outlined conditions proposed to be imposed on the licence. These include:
(a)a condition requiring Gianni to execute a Regional Standard Heritage Agreement (RSHA), should one be requested by Nyamal, and should relevant timeframes be met for that request; and
(b)a condition that prior written consent from the Minister responsible for the Mining Act be obtained before commencing any exploration activities on the Reserve.
The AHIS Searches show there are three Registered Aboriginal Sites (Spinifex Ridge sites) on the licence area, being:
(a)Spinifex Ridge 09-06 - Quarry (ID 27762);
(b)Spinifex Ridge 09-07 – Artefacts/Scatter, Grinding Patches, Groves (ID 27763); and
(c)Spinifex Ridge 09-08 - Artefacts/Scatter (ID 27764).
As noted above, there are also two sites listed as Other Heritage Places. The status of these is ‘lodged’ which means they have not yet been assessed for compliance with s 5 of the Aboriginal Heritage Act 1972 (WA) (AHA):
(a)Coppin Gap – Kulkangunyha – Mythological, Camp, Water Source (ID 24750) (Coppin Gap site); and
(b)Coppin Creek – Kulkangunyha – Camp, Water Source (ID 24752) (Coppin Creek site).

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

Nyamal’s Form 4 objection raised the issue of interference under s 237(a) and stated that evidence would be produced on that point, although the issue was not pursued in Nyamal’s contentions. Mr Allen states, at paragraph 5 of his affidavit dated 1 March 2019, that he believes the grant of the licence will interfere with the carrying on of activities of Nyamal, particularly in relation to hunting and gathering resources, practicing ceremony and protecting and maintaining areas of cultural significance. However, there is no detail provided about the conduct of those activities in the licence area or how the licence would result in substantial interference.
There is also a reference in Mr Allen’s June affidavit to the enjoyment of produce from the land after a cyclone, particularly by fishing and gathering medicine and food plants (paragraph 9) and to cultural practices and activities now being due to take place (paragraph 8). However, these references are given in the context of s 237(b). No specific evidence or contentions are given in relation to s 237(a).
The potential impact of the licence on Nyamal’s community or social activities are matters peculiarly within Nyamal’s knowledge, but there is nothing before me which indicates the grant of the licence is likely to result in direct interference within the meaning of s 237(a). Applying a common sense approach to the evidence as discussed in Ward v Western Australia at [26], I find disturbance under s 237(a) is unlikely.

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

The accepted approach to s 237(b) is also summarised in Yindjibarndi v FMG at [17] – [18]. In particular, an area or site within the meaning of s 237(b) must be known and able to be located, and be of special or more than ordinary significance to the native title holders. There must be a real risk of interference, but even slight interference may be unacceptable in the context of s 237(b).

What areas or sites are identified by Nyamal on the licence area?

In addition to the three Spinifex Ridge sites, Mr Allen’s evidence identifies Coppin Gap and Kookenyia Creek as sites of particular significance to Nyamal People in the licence area. Sites do not need to be registered to be of particular significance (see Little v Lake Moore Gypsum at [67]).
Kookenyia Creek and the Spinifex Ridge Sites
The majority of Mr Allen’s evidence, and Nyamal’s contentions, focus on Kookenyia Creek. Mr Allen states that:
(a)Kookenyia Creek is a tributary of the De Grey River which is a very significant area for Nyamal;
(b)information about Kookenyia Creek has been passed down to Mr Allen from his parents who told him stories of the place. Those stories have been told for generations and he has told it to younger generations;
(c)the dreaming story in the licence is called Wallawallung which is a dreamtime song about the Nyamal ancestors of creation and land and when a boy becomes a man through law then this is the first song that the man listens to upon coming out of initiation and being released back to see his mother.
Nyamal contends that the entirety of Kookenyia Creek should be protected, and any activities that may impact on the creek, no matter how minimal, should be negotiated with Nyamal to ensure cultural sites remain undisturbed. Nyamal say that Kookenyia Creek formed part of Nyamal identity.
In relation to the Spinifex Ridge sites, Mr Allen says that:
(a)registered site 27762 consists of carvings on top of rocks and is approximately 300 metres squared and is 50 metres from Kookenyia creek; and
(b)registered sites 27763 and 27764 are artefacts scatters that contains cutting rocks for cutting traditional animals for food preparation and used for law time ceremonies.
Mr Allen also says: “Our ancestors lived throughout these areas as the Kookenyia Creek provided a food and water source. The Spinifex Ridge sites are evidence of where our mob lived.”
The sites are said to be of both physical and spiritual importance to Nyamal. Nyamal People see these sites as part of their history and continuing Nyamal culture as interconnected to land, country and Nyamal spirituality. Mr Allen states that the Spinifex Ridge sites cannot be viewed separately and are indicative of the rich Nyamal traditional culture along Kookenyia Creek.
Mr Allen’s second affidavit dated 4 June 2019, relates primarily to the impact of a recent tropical cyclone on the area and the effect it has had on creeks in the area, including Kookenyia Creek. Mr Allen also states that the deluge has exposed further sites of significance, including burial sites, throughout the tenement that would not have been known previously. However, there is no evidence given of any specific sites or their location in the licence area.
Mr Allen’s evidence is that:
(a)the rain from the tropical cyclone which recently went through the area has made the place come to life and the spirits of the ancestors are awakened and observing activities on the land through birds, snakes and other animals;
(b)the land is now a tropical paradise with water flowing which gives life to the ancestral beings which have awoken during the deluge of the tropical cyclone;
(c)after a cyclone the land produces much food water love and happy occasions for Nyamal people; Nyamal people have awaited the rain for nearly three or four years and now cultural practices and activities are due to take place;
(d)Nyamal People see Kookenyia Creek “as a site as part of history and continuing Nyamal culture as interconnected. The area should be protected, any interference minimised, and activities negotiated with the native title claimants to keep cultural sites and songlines undisturbed”.
Gianni has not disputed Nyamal’s evidence in relation to the significance of sites in the licence area, including Kookenyia Creek, but has instead focussed on how he proposes to minimise or avoid interference in the conduct of exploration activities. This is discussed further below.
The State identifies a number of difficulties with respect to the evidence about Kookenyia Creek, including that there is insufficient evidence to enable to the Tribunal to determine if Kookenyia Creek is within the licence area or where it is located.
The Tribunal Map shows Kookenyia Creek as a tributary of the De Grey River. At a point to the north of the proposed licence Kookenyia Creek divides in two with one branch extending to the west, away from the licence. The other branch is the Coppin Creek site (described as camp/water source) which divides the licence and flows through Coppin Gap. Each of the Spinifex Ridge sites are shown on the Tribunal Map as being located along this creek. Mr Allen refers to these sites as “rather indicative of the rich Nyamal traditional culture along Kookenyia Creek”. I note also that in Njamal v Sorrento Resources, Coppin Creek was similarly described as a tributary of the De Grey River.

From this, I am satisfied that the creek referred to by Mr Allen as Kookenyia Creek is the same as the Coppin Creek site which runs through the licence area as shown on the Tribunal Map.
The State argues that the NTP has not met the onus of establishing sufficient evidence that Kookenyia Creek or the Spinifex Ridge sites are of particular significance as required for s 237(b).
I accept the State’s submissions that certain parts of Mr Allen’s evidence are speculative, particularly in relation to “potential archaeological deposits” along Kookenyia Creek and the effect of the cyclone in exposing new sites. No detail is given in relation to these sites.
As Member Shurven observed in Njamal v Sorrento Resources at [22], where there is only a minimal amount of evidence, it is sometimes a difficult judgement as to whether a site is of particular significance or not.
However, while the evidence is limited, Mr Allen has explained the particular significance of Kookenyia Creek as an important water source to Nyamal People and as an integral part of Nyamal’s identity and oral history. The existence of Spinifex Ridge sites along the creek are consistent with Mr Allen’s evidence about Nyamal’s use of the area.
Mr Allen’s evidence in relation to the dreaming story Wallawallung is also consistent with evidence referred to in Njamal v SorrentoResources that Coppin Creek and Coppin Gap are associated with an important men’s story.
Considered in isolation, there may not be sufficient evidence in relation to the particular significance of the Spinifex Ridge sites. However, these sites are evidence of where Nyamal People lived along Kookenyia Creek and I accept they are indicative of, and connected to, the significance of Kookenyia Creek. I am therefore satisfied that Kookenyia Creek (being the Coppin Creek site) where it runs through the licence, and the Spinifex Ridge sites, are of particular significance to Nyamal within the meaning of s 237(b).
Coppin Gap
Coppin Gap is mentioned in both the Form 4 and Mr Allen’s March affidavit. The Form 4 makes specific reference to the ‘Site Lodged Coppin Gap – Kulkangunyha’. Mr Allen says that Coppin Gap is a significant site in Nyamal law and culture. Coppin Gap possesses a large Yinta, meaning ‘big pool’ (a permanent waterhole) which is important to Nyamal people and must remain undisturbed.
It appears from the Tribunal Map that Coppin Gap (the geographical feature) is situated at or near the southern boundary of the licence and is within the area of the Reserve, although the Coppin Gap site is a larger area and extends beyond the Reserve.
In Njamal v Sorrento Resources at [23] - [24] Member Shurven considered both the Coppin Gap site and Coppin Creek site in relation to licence E45/4560 which lies to the south, and found that both are of particular significance to Nyamal. Member Shurven accepted that both Coppin Gap and Coppin Creek are associated with an important men’s story and are linked to important features of Nyamal’s traditions through water on the licence.
None of the parties raised the findings in Njamal v Sorrento Resources in this matter. That may, in part, have been due to the relevant AHIS search being provided by the State late in the inquiry process.
Under s 146 of the NTA, it is open to me to adopt the findings of Member Shurven in Njamal v Sorrento Resources in relation to Coppin Gap and Coppin Creek. On 3 September 2019, the Tribunal wrote to the parties to bring Member Shurven’s findings in Njamal v Sorrento Resources to their attention and to inquire whether they had any objection to me adopting those findings in this matter.
Nyamal and the State advised that they do not object to my adoption of those findings. Gianni did not specifically address the question of objection but repeated his willingness to impose a buffer zone in relation to the Coppin Creek site and the Spinifex Ridge sites, and noted that Coppin Gap itself would be excised from the licence because it falls within the area of M45/1096 to the south of the licence. However, as shown on the Tribunal map, the Coppin Gap site extends beyond the overlap with M45/1096.
In this case, Nyamal’s evidence focuses on Kookenyia Creek rather than Coppin Gap and the evidence in this matter alone is insufficient to support a conclusion of particular significance. However, I adopt Member Shurven’s finding in Njamal v Sorrento Resources that Coppin Gap is of particular significance to Njamal within the meaning of s 237(b).

Is the grant of the licence likely to interfere with these sites of particular significance?

Nyamal contend, in effect, that any activities undertaken in the area of Kookenyia Creek or the Spinifex ridge sites should only be done by consultation and agreement with Nyamal. Mr Allen says that “any disturbance is too much disturbance”. The State argues that this may amount to an assertion of a virtual veto on the application of the expedited procedure. I don’t accept that proposition. I take Nyamal’s concerns to be limited to impact on the specific sites identified.
Gianni’s contentions outline how he proposes to minimise or avoid interference with any sites of particular significance. In summary, Gianni says:
(a)he is willing and prepared to consult with the Nyamal People and to time and tailor the proposed exploration to best avoid interference with any community or social activities of the Nyamal People and especially anything to do with Kookenyia Creek;
(b)initial exploration will be in the eastern side of the licence quite a distance from the registered sites;
(c)he consents to an exclusion or buffer zone of 300 metres surrounding the three registered sites which adds further protection to the Nyamal People;
(d)he will give immediate notice to Nyamal prior to any exploration being commenced and will adhere to any concerns expressed by the Nyamal People; and
(e)he is fully aware of his responsibilities that any major disturbances to the land and the waters are to be kept at a minimum and prior notice and full disclosure will always be given to the Nyamal People.
In relation to Gianni’s proposal for a 300 metre buffer zone around the registered sites and to avoid Kookenyia creek, I agree with the comments made by President Dowsett in Tjiwarl v Gianni at [106]. While positive, these types of general unenforceable statements are not a complete answer to the risk identified. The terms of any such arrangements are properly a matter for negotiations under s 31 of the NTA.
The State intends to include a specific condition on the licence which would require Ministerial consent before any activities could occur within the area of the Reserve. However, there is no evidence provided in relation to the circumstances in which such consent may be given. Therefore, while the requirement for Ministerial consent may be an additional hurdle to undertaking exploration activities on the Reserve, there is nothing to suggest it makes those activities any less likely. In any event, the Reserve does not cover the whole of the Coppin Gap site or the Coppin Creek site, and does not appear to cover the Spinifex Ridge sites at all. Therefore, even if exploration activities were absolutely prohibited on the Reserve, it would not completely address the likelihood of interference with the sites of particular significance.
The State also proposes to impose a condition on the licence requiring entry into a RSHA, in the following terms:
In respect of the area covered by the licence the licensee, if so requested in writing by the native title applicants in Federal Court application No. WAD6028/1998, Nyamal #1 (Native Title Party), such request being sent by pre-paid post to reach the licensee’s or agent’s address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Native Title Party any Regional Standard Heritage Agreement (RSHA) nominated by the Native Title Party, the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading ‘Regional Standard Heritage Agreement’.
I was unable to locate the nominated section on the department’s website, although I did locate a page called ‘Native Title Act Process’ which included copies of a number of standard agreements under the heading ‘Expedited Procedure process’. Of the agreements specified in the proposed condition, only the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement and the Goldfields Land and Sea Council Agreement were listed on that page. Further, only the Goldfields Land and Sea Council Agreement would appear to be drafted in a way which could readily apply to Nyamal, who are not represented by Yamatji Marlpa Aboriginal Corporation.
The State argues, in effect, that the existence of the proposed condition makes interference less likely. The arguments put by the State are the same as those referred to in Marputu v Gianni at [64] and [65].
To rely on the possible entry into a standard agreement that has not been negotiated by the parties to decide that interference under s 237(b) is unlikely, seems to me to require a number of long bows to be drawn.
As President Dowsett stated in Marputu v Gianni at [66]:
Although the terms of any RSHA may reduce the risk of adverse impact, to some extent, they leave open the real possibility, perhaps likelihood that there would be further disputes, in good faith or otherwise, about concepts such as “take into account”, “significantly affect” and “discuss”. As I have previously observed, protection of that general kind may be appropriate where the traditional owners’ concerns are unparticularized, but that is not the present case. In those circumstances, the proposed grantee’s willingness to enter into such an agreement says little about the extent to which the sites will be at risk. The State’s proposed special condition similarly offers little or no protection in this case. In all of these circumstances, I am satisfied that the native title holders’ concerns are reasonable.
I am, similarly, not satisfied that the proposed condition mitigates the risk of interference in this case.
Gianni also says that he executed and offered an RSHA to Nyamal on 20 March 2018, which is shortly after the date of receipt shown on the licence application. The State says that this, together with Gianni’s commitment to consulting Nyamal, indicates Gianni’s willingness to work with Nyamal to avoid interference.
There is no evidence provided by Gianni in relation to the RSHA said to have been offered to Nyamal in March 2018. It is not known what form the agreement took (for example the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement) or to whom it was sent. Also, on 4 December 2018 Gianni responded to the Tribunal’s follow up notification email asking parties to advise whether they intend to resolve the objection by agreement and whether any draft agreement has been exchanged, by stating that “No agreement has been offered or received so I would ask for this matter to proceed to inquiry.” This response appears to be directly at odds with Gianni’s statement that he had provided a signed agreement to Nyamal.
In any event, bald statements of good intentions cannot be enough to mitigate the risk of interference. While it is constructive that Gianni is willing to consult and liaise with Nyamal to avoid interference, in the absence of a binding agreement, the risk of interference remains.
In addition to the points already discussed, the State also raises a number of additional arguments as to why interference is not likely. These are that:
(a)endorsements 8, 10, 11, 12 to be included on the licence will operate to prevent waterway pollution and damage - although no explanation is given of how they would apply to prevent interference under s 237(b);
(b)sufficient protection is afforded under the AHA; and
(c)the prior exploration and mining activity in the licence area shows that there has been a degree of non-Nyamal presence in the licence area from time to time, yet there is no evidence or contention from Nyamal that this resulted in interference with sites of particular significance.
I have considered each of these arguments and the relevant supporting material, including all of the proposed endorsements on the licence. Environmental and other regulatory controls are important and while I afford those measures some weight, they do not entirely remove the risk of interference in the present context.
In relation to protection afforded under the AHA, the State has not explained how that protection would apply to the sites in issue in this case. I adopt the reasoning on this point in Marputu v Gianni at [62] – [64].
With respect to the history of prior exploration and mining activity, there is nothing I can usefully glean from the history of mining tenements or the expenditure information provided by the State. I am unable to draw any inference from that information about the risk of interference from exploration activities under the licence in this case.

Conclusion

On the evidence, I consider that the grant of the licence is likely to interfere with Kookenyia Creek (being the Coppin Creek site), the Spinifex Ridge sites and the Coppin Gap site. The State’s proposed regulatory measures and statements of good intent by Gianni are not sufficient to mitigate the risk of interference. This should occur through negotiation between the parties under s 31 of the NTA.

Section 237(c): 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?

Nyamal do not make any contentions in relation to s 237(c) and there is nothing before me which indicates the grant of the licence is likely to involve major disturbance to any of the land or waters concerned. Therefore, I find disturbance within the meaning of s 237(c) is unlikely.

DETERMINATION

I determine that the grant of licence E45/5184 to Peter Romeo Gianni is not an act attracting the expedited procedure.

Ms Nerida Cooley
Member
17 September 2019