Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another
[2022] NNTTA 11
•15 February 2022
NATIONAL NATIVE TITLE TRIBUNAL
Michael Ross & Others on behalf of the Cape York United #1 Claim v Oosen Lewis Mining Pty Ltd & Another [2022] NNTTA 11 (15 February 2022)
Application No: | QO2020/0049 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application.
Michael Ross & Others on behalf of the Cape York United Number 1 Claim (QC2014/008)
(native title party)
- and -
Oosen Lewis Mining Pty Ltd
(grantee party)
- and -
State of Queensland
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr Glen Kelly |
Place: | Perth |
Date: | 15 February 2022 |
Catchwords: | Native title — future act — proposed grant of exploration licence — expedited procedure objection application — whether acts directly interfere with community or social activities — whether acts interfere with areas or sites of particular significance — whether there is a likelihood of major disturbance to land or waters |
Legislation: | Native Title Act 1993 (Cth) ss 151(2), 155, 203AD, 237 Mineral Resources Act 1989 (Qld) Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) Aboriginal Cultural Heritage Act 2003 (Qld) s 23(3)(a)(v) Aboriginal Land Act 1991 (Qld) Nature Conservation Act 1992 (Qld) |
Cases: | FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG Pilbara v Yindjibarndi Aboriginal Corporation) Isaac Hale and Others on behalf of Bunuba #2 v Mings Mining Resources Pty Ltd and Another [2015] NNTTA 49 (Hale v Mings Mining Resources) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (Tullock v Western Australia) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Gamboola Resources Pty Ltd and Another [2018] NNTTA 10 (Michael Ross v Gamboola Resources Pty Ltd) Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another [2018] NNTTA 11 (Michael Ross v Lithium Australia NL) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (Mungarlu v FMG Pilbara) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WC01/179); Robin Boddington and Others on behalf of the Wajarri Elders (Wo01/180)/Western Australia/Giralia Resources NL [2002] NNTTA 24 (Walley v Western Australia) |
| Representatives(s) of the native title party: | Ms Sidonie Berke, Cape York Land Council |
| Representative(s) of the grantee party: | Ms Claire Mackney, Avoca Tenement Consulting Pty Ltd |
| Representatives(s) of the Government party: | Ms Karen Dawson, Department of Resources Ms Emma Brunello, Crown law |
REASONS FOR DETERMINATION
Background
On 22 July 2020, the State of Queensland (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence EPM 27467 (proposed licence) to Oosen Lewis Mining Pty Ltd (the grantee). The notice included a statement that the State considers the grant is an act attracting the expedited procedure (see s 32 of the NTA).
The proposed licence is approximately 182 square kilometres in size and is situated approximately 67 kilometres northwest of Cooktown. It is almost entirely subject to the Cape York United Number 1 Claim registered native title claim (QC2014/008, CYU#1) although a very small portion (0.2%) is subject to the Hopevale native title determination (QCD1997/001).
On 20 November 2020, an objection to the use of the expedited procedure was lodged by CYU#1 while no objection was lodged by the relevant registered native title body corporate of the Hopevale native title determination area.
I have been directed by the President to constitute the Tribunal to determine whether or not the expedited procedure applies to the grant of the proposed licence. For the reasons set out below, I have determined the expedited procedure does apply.
Considerations/Legal Principles
In determining whether the expedited procedure applies, the Tribunal must consider whether the grant of the licence is 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 (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)).
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’ (Smith v Western Australia at [23]).
The legal principles outlining the approach I am taking to this assessment are summarised in Yindjibarndi v FMG at [15] – [21]. From this, the legal principles for my 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’ are 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] are that:
(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 placed on a formal register or database;
(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 there will be an impact on them;
(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, however this does not mean that this regime will be considered to make interference unlikely under s 237(b) on all occasions.
No contentions have been made in regard to s 237(c) by the NTP. As such, I have not summarised legal principles relating to this part of s 237 here.
The conduct of this inquiry
The objection from the native title party was accepted on 23 November 2020 and initially allocated to Member Cooley. On December 8 2020, an adjournment to an initial status conference was requested by the representatives of the native title party for reasons pertaining to the availabilities of key personnel of the grantee party and members of the native title party. This adjournment was granted on that same day with a Status Conference deferred until 3 February 2021 which was convened by Member Cooley.
The matter was reallocated to myself and the parties were advised of this at a further status conference convened by Member Cooley on 3 March 2021. Member Cooley provided the parties with draft directions prepared by myself and on 18 March 2021, initial directions were made following consultation with the parties on these draft directions.
On 31 May 2021, a one week extension was provided to the grantee party with subsequent dates amended accordingly. On 17 June 2021, a one day extension was provided to the State (due to the receipt of further tenure information) with subsequent dates amended accordingly.
The State provided contentions and evidence which included mapping, key tenure information for the proposed licence, cultural database and heritage register searches, a copy of the licence application and information provided the Department of Resources.
The grantee provided contentions and evidence including information concerning ionic leach sampling, a work program rationale, cultural heritage location mapping and land title searches.
The native title party provided contentions and evidence including:
(a)affidavit of Mrs Norma Jacko (NJ affidavit);
(b)affidavit of Mr Matthew Neil Jacko (MJ affidavit);
(c)cultural heritage report prepared by Ms Joyce Gehr and site map (Gehr report);
(d)anthropology report prepared by Dr Bryce Barker (Barker report);
(e)report of the Aboriginal and Torres Strait Island Land Tribunal on the Aboriginal land claim to Starcke National Park (Starcke Report);
(f)Historical Land Title Search of Lot 5 on SP 104582;
(g)Historical Land Title Search of Lot 8 on SP104579; and
(h)Historical Land Title Search of Lot 18 on SP10458.
In his affidavit, Mr Matthew Jacko says he is a member of the Juunjuwarra people and the Juunju clan (MJ affidavit [4]). He says Juunju country is the country of his great grandfather, King Ngulul Jacko who is also listed as an apical on the CYU#1 claim, and that through this lineage he is a traditional owner of and can speak for country (MJ affidavit [3]). Mr Jacko says Juunju country is not restricted to Munburra but goes ‘all the way to the coast’ (MJ affidavit [9]).
Mrs Norma Jacko says the Juunju people are descendants of King Jacko who is her grandfather from his son Woibo Jacko. Mrs Jacko also says that as ‘a member of the Juunju people and granddaughter of King Jacko, I hold authority to speak for Juunju country’ (NJ affidavit [3]). Mrs Norma Jacko is the mother of Mr Matthew Jacko (MJ affidavit [3]).
Both Mrs Jacko and Mr Jacko say they are directors of the Juunjuwarra Aboriginal Corporation which is the holder of Lot 5 on SP104582, Munburra, and I accept their standing to provide evidence in this matter.
All parties submitted their view that a determination could be made on the papers.
Qld framework for Exploration
The State of Queensland has developed a framework of separate but interrelated statutory and regulatory instruments which govern or relate to the governance of Aboriginal heritage, mineral exploration, native title and land access, each of which require consideration in this determination. The instruments relevant to this determination, of which the relevant parts are summarised in this section, are the:
·Aboriginal Cultural Heritage Act 2003 (ACHA);
·Aboriginal Cultural Heritage Duty of Care Guidelines (duty of care guidelines);
·Mineral Resources Act 1989 (MRA);
·Native Title Protection Conditions (NTPCs);
·Mineral and Energy Resources (Common Provisions) Act 2014 (Common Provisions Act); and,
·Land Access Code
Aboriginal Cultural Heritage Act 2003 (Qld)
A central component of the ACHA is that it imposes a ‘cultural heritage duty of care’ (duty of care) which is set out in s 23. This requires that a person conducting an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage where this is defined as anything that is a significant Aboriginal area or object or is evidence which is of archaeological or historic significance, of Aboriginal occupation (ACHA s 8).
The ACHA provides guidance as to how the duty of care may be met at s 23(2) by setting out a non-exhaustive list of criteria a court may consider when deciding if a person has complied with their duty of care. In summary these are the:
a)nature of the activity and the likelihood of harm;
b)nature of the Aboriginal cultural heritage likely to be harmed;
c)extent and result of consultation about the activity;
d)carrying out, extent and result of a study or survey, of the area to find the location and extent of Aboriginal cultural heritage;
e)searching of the Aboriginal Cultural Heritage Database (heritage database) and the Aboriginal Cultural Heritage Register (heritage register) for information about the area;
f)extent to which the duty of care guidelines were complied with; and
g)nature and extent of past uses in the area.
Section 24(2) of the ACHA then provides that a person is taken to have complied with the duty of care if the person is acting:
i.under the authority of another provision of the ACHA;
ii.under an approved cultural heritage management plan (CHMP);
iii.under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal cultural heritage is expressly excluded;
iv.in compliance with duty of care guidelines; or,
v.in compliance with the NTPCs, but only if the cultural heritage is the subject of the conditions.
Section 24(2) of the ACHA also sets out that a person is taken to have complied with the duty of care if they own the cultural heritage, are acting with the owner’s agreement or the activity is necessary because of an emergency.
Section 28 of the ACHA provides that the Minister for Seniors and Disability Services and Minister for Aboriginal and Torres Strait Islander Partnerships (Minister) may gazette guidelines identifying reasonable and practicable measures to avoid or minimise harm to cultural heritage. This has given rise to the gazettal of the duty of care guidelines which provide examples and processes to assist compliance with the duty of care. The duty of care guidelines are examined in the following section.
The ACHA also provides for the establishment of two separate but related information tools. The first is the heritage database which is a central repository of information on the details of Aboriginal heritage itself and is not generally accessible by the public (Part 5, Division 1). The second is the heritage register, a depository of information from cultural heritage studies, CHMPs, Aboriginal cultural heritage bodies and other types of similar information and is generally accessible to the public (Part 5, Division 2).
A key component of the ACHA is its provision for the development of CHMP as set out in Part 7 of the ACHA. A CHMP is an instrument which sets out the manner in which land use activities can be managed to minimise or avoid harm to Aboriginal cultural heritage and assist in preventing breaches of the duty of care where an activity has occurred under an approved CHMP (s 23(3)(ii)). A CHMP is required if an environmental impact statement is required for a project (s 87) and may be required for certain projects requiring other environmental authority (s 88). CHMPs can also be developed voluntarily where there is no requirement.
While a CHMP is at its basis a plan to avoid or minimise harm to Aboriginal heritage, it is based on (or at least is intended to be based on) agreement between the land user and the Aboriginal party on how this may be done. To facilitate this, the ACHA contains a variety of assistance and mediation steps to facilitate this agreement. Agreed CHMPs are approved by the Chief Executive Officer of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships after which they are placed on the heritage register.
Where an agreed CHMP is not able to be achieved it can be referred to the Land Court of Queensland (Land Court) which, following its processes, provides a recommendation to the Minister for a determination on whether to approve or not and whether this should include amendments. The Minister must take into account but is not bound by the recommendations of the Land Court and if approved, the CHMP is placed on the heritage register.
ACHA Duty of Care Guidelines
The duty of care guidelines are gazetted by the Minister pursuant to s 28 of the ACHA and are a mechanism to guide compliance with the cultural heritage duty of care. They set out that non-compliance with the duty of care guidelines is not an offence in itself but that complying with the duty of care guidelines ‘affords strict compliance with the cultural heritage duty of care’ (duty of care guidelines 1.15).
Part 2 of the duty of care guidelines sets out what are termed ‘reasonable and practicable’ measures for ensuring activities are managed to avoid or minimise harm to Aboriginal cultural heritage. The guidelines are based on the principle (at 2.2) that it is unlikely Aboriginal cultural heritage will be harmed where the current or proposed activity is on land with significant previous disturbance or where the activity is unlikely to cause additional harm to that which may have already occurred.
From this basis, these guidelines set out 5 categories of activity being:
(a)Category 1, being activities that do not involve surface disturbance such as walking, the use of existing roads, aerial surveys and geological survey methods that don’t cause surface disturbance.
(b)Category 2, being activities that cause no additional surface disturbance to that which has already occurred such as grazing on existing grazing land, use and maintenance of existing infrastructure and utilities and tourism.
(c)Category 3, being activities in already developed areas where an activity is unlikely to cause harm to Aboriginal cultural heritage.
(d)Category 4, being activity on areas which are subject to significant previous ground disturbance where further activity is unlikely to harm Aboriginal cultural heritage.
(e)Category 5, being activities that do not fall into the above categories and therefore will or are likely to cause additional surface disturbance and there is generally a high risk it could harm Aboriginal cultural heritage.
In relation to categories 2, 3 and 4, the duty of care guidelines set out that if it is necessary to disturb a cultural heritage find the activity must cease, the appropriate Aboriginal party must be notified, and their advice and agreement as to how best this disturbance may be managed sought. The guidelines advise that any agreement should be documented and where agreement can’t be reached the duty of care continues. Additionally, activity in these is categories should not proceed if it will harm Aboriginal cultural heritage entered onto the Aboriginal cultural heritage register or heritage database without agreement with the Aboriginal party or in accordance with a CHMP (cl 4.7-4.11, 5.8-5.12).
Category 5 activities impose a higher order of requirement being that:
i)the activity should not proceed without a cultural heritage assessment (cl 5.14);
ii)that it is necessary to contact the Aboriginal party seeking advice on Aboriginal cultural heritage features and how best to avoid or minimise harm (5.16);
iii)if it is necessary to remove, relocate or harm a cultural heritage find, cease activity, contact the Aboriginal party and seek advice and agreement on how this is best managed (5.17);
iv)if agreement is unable to be reached the ACHA s 23 duty of care remains and all reasonable and practical measures must be undertaken to ensure no harm including, where necessary, the development of a CHMP (5.19);
v)a category 5 activity that disturbs or harms Aboriginal cultural heritage that is entered onto the heritage register or heritage database should not proceed without the agreement of the Aboriginal party or through a CHMP.
Mineral Resources Act (1989)
The MRA governs both the proposed licence being considered in this determination and contains provisions relating to native title and land access. While the MRA covers a wide range of mining activity, the focus here is on that which governs licenses which are termed ‘Exploration Permit Mineral’ (EPM) as this is the type under consideration in this determination. EPMs are governed by Chapter 4, Parts 1 and 2 of the MRA.
As for the features of and conditions applied to an EPM, unless the Minister decides otherwise, the term of an EPM is not exceeding 5 years with a possibility of renewal for a further 5 years (MRA ss 146 and 147), which is the case for the proposed licence as set out in the s 29 notice. During this period the grantee has a range of entitlements that are set out in s 129 of the MRA. These include that the holder of the EPM:
·can access the EPM by or with any machinery or equipment necessary for the purpose of exploration, to facilitate that exploration or conduct remediation and rehabilitation activities, subject to Chapter 3 of the Common Provisions Act;
·has priority in an application for the grant of a mining claim, mineral development licence or mining lease for all or part of the area of the EPM, and may enter the land for the purposes of complying with the requirements of this application;
·must comply with the terms and conditions upon which any consent to access the land, as required by the MRA, was given by the owner of the land;
·can set up temporary accommodation in the area of the EPM and stay at night; and
·during the term of an EPM, have these rights to the whole of the EPM area.
When applying for an EPM, the applicant must specify the minerals sought and the application must be accompanied by a proposed work program covering the term of the permit (MRA s 133). The MRA also places a series of conditions on the holder of an EPM. These are found at s 141 of the MRA and include that the EPM holder must (amongst other things):
·comply with the mandatory provisions of the land access code and the small scale mining code to the extent they apply (s 141(1)(aa)(i));
·where the work program approved by the Minister states the activities to be carried out over the term of the EPM, carry out those activities to the extent reasonable in the circumstances(s 141(1)(a)(i));
·without prior approval from the Minister, not obstruct or interfere with any right of access by any person in respect of the EPM area (s 141(1)(d)); and,
·other conditions as determined by the Minister (s 141(1)(j)).
Arising from s 141(1)(j), s 141AA of the MRA provides that the proposed licence may include native title protection conditions (NTPCs) where these NTPCs are defined as conditions that ‘are about ways of minimising the impact of the permit on native title in relation to the land affected by the permit.’ (MRA s 141AA(3)(a)).
NTPCs
The NTPCs are a set of conditions which are stated to be for the purpose of satisfying the requirements of the expedited procedure of the NTA (NTPCs p1). The NTPC document sets out that exploration activities are not to be carried out if they are likely to result in interference or disturbance as described in s 237 of the NTA unless in accordance with the NTPCs (NTPC cl 2).
The NTPCs outline a series of processes to notify and meet with native title parties in addition to the conduct of heritage assessments, reporting, work program development, dispute resolution (via mediation or arbitration in the Land Court) and monitoring. It should be noted that if the NTP is unable to meet the prescribed time frames, the explorer is able to undertake the activity with no further NTPC driven engagement.
It is also worth noting that should an activity be proposed which falls under the term ‘agreed exploration activities’, it is not subject to a field inspection or monitoring. Agreed exploration activities are defined in the NTPCs as including:
(a)aerial surveys;
(b)geological and surveying field work that does not involve clearing;
(c)sampling by hand methods;
(d)ground-based geophysical surveys that do not involve clearing;
(e)drilling and activities associated with drilling that occur on land that has previously been the subject of clearing; and
(f)environmental field work that does not include clearing.
Common Provisions Act and the Land Access Code
The Common Provisions Act sets out the provisions the holder of an EPM (and other types of licences) are required to follow when accessing privately held lands, with these provisions being found in Chapter 3, Part 2. In general, a private land holder must be given notice at least 10 business days prior to entry (s 39) unless certain exemptions apply, including where the holder of the EPM owns the land.
When entering privately held land, activities termed as a ‘preliminary activity’ (s 15B) do not require any form of agreement with the landholder prior to them being undertaken. These are activities that will have minor or no impact on the land-use activities of the land such as the use of existing roads or tracks, taking soil or water samples, geophysical surveying that doesn’t involve ground preparation, aerial or environmental surveying and survey pegging.
Activities termed as ‘advanced activities’ require the parties to enter into a Conduct and Compensation Agreement, enter into a deferral agreement, elect to opt out of these processes or be party to certain dispute resolution proceedings. Advanced activities include such things as levelling of drilling pads and sumps, bulk sampling, open trenching or costeaning, vegetation clearing, track or access construction or construction of an exploration camp (s 15A).
Provisions relating to Conduct and Compensation Agreements are set out in Chapter 3, Part 7. Section 83 outlines that this is to include agreement as to how the licence holder may enter the land, how authorised activities are to be carried out and the licence holder’s compensation liability, or any future compensation liability, they may have to the land holder. If agreement cannot be reached, there are provisions for conferencing with an authorised officer, alternative dispute resolution or arbitration in the Land Court (Chapter 3, Part 7, Division 2).
The Land Access Code is a regulation under s 36 of the Common Provisions Act to set out best practice guidelines for communications between a grantee party and land holders in addition to imposing mandatory conditions for the conduct of authorised activities on land (Land Access Code, p1). In particular, Part 3 of the Land Access Code sets out mandatory conditions for grantee parties when accessing private lands including giving notice, using access points and roads, the setting up of camps and, in general, minimising impact.
The proposed licence and the proposed activities
Features of the area of the proposed licence
The proposed licence is located approximately 67 km north west of Cooktown, covers an area of approximately 182 km2 and is an EPM with a term of 5 years with a possibility of renewal for 5 years (GvP contentions [5.1]). The proposed licence originally covered 63 sub-blocks however notice was given on 21 July 2020 that 8 sub-blocks on the eastern boundary were to be abandoned (GP contentions [8]-[9]; Application for exploration permit)..
Over 98% of the licence area is Aboriginal freehold land meaning free hold title granted under the Aboriginal Land Act 1991 (Qld) (ALA) as a deed of grant in trust (DOGIT) (GP contentions [13]-[14]). This includes:
(a)Lot 18 on SP104580 in the north and north western part of the proposed licence area held by the Ngulun Land Trust overlapping approximately 43% of the proposed licence;
(b)Lot 8 on SP104579 in the eastern part of the licence area held by the Daarba Land Trust overlapping approximately 17% of the proposed licence;
(c)Lot 5 on SP104582 in the central portion of the licence area held by the Junjuwarra Aboriginal Corporation known as the Munburra Resource Reserve (Munburra), overlapping approximately 36% of the proposed licence; and,
(d)a very small overlap on lot 35 on SP232620 in the easternmost portion of the licence area held by the Hopevale Aboriginal Congress of approximately 0.2% of the proposed licence (percentages from NNTT spatial analysis).
From the intersect report generated by the Department of Resources it appears that while the underlying tenure of the proposed licence is predominantly Aboriginal freehold, additional tenures which underlie the EPM area include national park, freehold, some state land and various other types of reserve such as road, creek and river reserve.
Those areas which are national parks are excluded from the proposed licence by operation of s 27 of the Nature Conservation Act 1992 (Qld) (NCA). The State provides that the proposed licence area also has three current tenements: ML 2874, ML 2886 and ML 20322 which are excluded from the proposed licence by operation of s 132 of the MRA. The proposed licence area also overlaps the areas covered by 40 historical tenements (GvP contentions [3.8]).
Work Program
The grantee party advises the initial focus of the work program will be soil sampling, which it says will be for ionic leaching and requires a sample size of 50g of sieved soil (GP contentions [10]). The documents provided to the Department of Resources by the grantee party also provide for drilling activities in years 4 and 5 if results are favourable (GP contentions [11], Annexure 3).
The proposed work program filed with the Department of Resources provides in years 1-3 provides for:
(a)40 days of desktop studies;
(b)55 days of mapping;
(c)the collection of 250 samples; and
(d)106 days of site logistics.
The proposed work program filed with the Department of Resources provides in years 4-5 for:
(a)20 days of desktop studies;
(b)the drilling of 30 holes;
(c)40 days of mapping;
(d)the collection of 200 samples; and
(e)74 days of site logistics.
On-ground activity locations within the proposed licence are not provided however the grantee party does state that due to access roads being washed out each wet season, initial access to the proposed licence area and to inaccessible areas in the proposed licence will be by helicopter with ground reconnaissance and sampling ‘by way of walking the ground’ (GP Exploration Work Program Rationale, p5). It is assumed that vehicular access will also be used when road access permits. No information is provided on activities such as clearing and exploration camp requirements as this looks to be dependent on the success of the exploration program in years one to three.
In Silver v Northern Territory (at [30]), the Tribunal determined that in the absence of evidence of intention it is at liberty to assume the grantee will fully exercise the rights conferred under the tenement. In this case the grantee party’s work program provides evidence otherwise, particularly for years 1-3, however the grantee party remains at liberty to amend this program in order to more fully exercise the rights available to it under the EPM. Although this may be the case, the possibility must also be balanced against the requirements of what I have labelled the Queensland framework where changes to the work program are reflected in the administrative arrangements relating to land access and exploration.
Predictive assessment for s 237
How the State Framework may apply
Having examined relevant parts of the Queensland state framework, it is useful to briefly consider how this framework would apply in assessing whether there may be interference as set out in s 237 for the purposes of this determination. In doing so, the State contends there is a presumption of regularity and the grantee will act lawfully in exercising its rights (State contentions [5.6]), which I accept.
Duty of care guidelines
The backdrop to this framework is the ACHA and the duty of care guidelines that arise from it. It would appear that under the guidelines, the activities anticipated for the year 1-3 work program would likely be classified as category 1 or 2 given they are focussed on hand sampling of soil, helicopter access which can only occur safely on open ground, vehicular access via existing roads and foot access for sampling activities. Given this activity profile, they would likely require no cultural heritage assessment and there would be no requirement for a particular agreement with the Aboriginal Party or a CHMP unless it is known a cultural heritage site will be disturbed (duty of care guidelines [4.2]-[4.9]).
The anticipated work program for years 4-5 would likely to be regarded differently given the activity profile, that of drilling and associated activities. Although it is possible that part of this drilling program may be regarded as category 3 or 4 activities, depending on existing ground disturbance, in my view it is more likely they would be regarded as category 5 activities due to both their nature and the remote and relatively undisturbed location. To comply with the duty of care guidelines, category 5 activities require undertaking an initial cultural heritage assessment and, like all activities, if it is necessary to harm Aboriginal heritage the advice and agreement of the Aboriginal party is required, including where necessary through the development of a CHMP (duty of care guidelines [5.13]-[5.21]).
NTPCs
Under the processes in the NTPCs, the grantee party would be required to provide an exploration activity notice to the native title party containing (amongst other things) details of the area of the exploration activity and a detailed description of the work program. This must include a description of the activities, when these will occur, the duration of the activities, how the area is to be accessed and other relevant details. This notice would have effect for a period of 12 months after which it would need to be renewed.
Those activities described by the grantee party in their year 1-3 work program would likely be categorised as ‘agreed exploration activities’ as they fall within those activities described previously at [41]. No field inspection would therefore be required and the activities could proceed, as is also contended by the native title party (NTP contentions [26]-[27]).
This would likely change in years 4-5 given a drilling program is anticipated. As a result of this change, carrying out the work proposed in years 4 and 5 would require a notice, meeting, field inspection, inspection report and a program of works that is either agreed between the parties or arbitrated in the Land Court if agreement is not reached. This is of course if the native title party has been able to comply with the time frames set out in the NTPCs which are onerous, although the obligations of the grantee party could be regarded similarly. Additionally, I understand these extra requirements would apply in the event the work program for years 1-3 intensified from that which has been provided.
Land Access
Regarding access to the land, the State and the grantee party contend the grantee is required to comply with the Common Provisions Act and provide notice to the landholder. I again note that in this case Tribunal tenure analysis indicates some 96% of the proposed licence is held in Aboriginal freehold by the Ngulun Land Trust, Daarba Land Trust, the Junjuwarra Aboriginal Corporation or the Hopevale Aboriginal Congress. As such, these landholders would be required to receive notice of activity where the activity impacts upon their particular land holding.
For years 1-3, I consider it likely that activities planned by the grantee party would be classified as ‘preliminary activities’ given the activities described are consistent with the manner in which this term is defined in s 15B of the Common Provisions Act. These activities, therefore would require notice but no form of agreement prior to undertaking them. This access would need to comply with the provisions of the Land Access Code.
The work program described for years 4-5 is consistent with the category of ‘advanced activities’ as defined in s 15A of the Common Provisions Act. As such, and as is contended by the grantee (at GP contentions [14]), the grantee party would be required to provide notice and to develop a Conduct and Compensation Agreement with each landholder, depending on where the exploration activity is set to occur.
In summary, under this framework, the land holders and native title party would be notified for those activities contemplated in years 1-3 however, no heritage assessment or agreement between the parties is required, and the activities can proceed. Any activities which do proceed must be conducted in a manner consistent with the cultural heritage duty of care and the Land Access Code.
For those activities proposed for years 4-5 however, it would appear as though various types of notice would be required, a heritage assessment via the duty of care guidelines and/or the NTPCs is required and if the pathway of the NTPCs is followed, an agreed work program avoiding heritage places and areas be made. Additionally, pursuant to the Common Provisions Act, a Conduct and Compensation Agreement would also be required with each landholder setting out parameters for access and activities.
Native Title Party contentions on the NTPCs
The native title party makes a number of contentions in relation to the NTPCs in that they are not fully effective as they do not ‘respect or apply … protocols and cultural laws’ under traditional law and customs, that these ‘cultural protocols, prohibitions and sanctions … transcend the physical impact’ of the proposed activities and that the NTPCs do not require the grantee party be accompanied on the land (NTP contentions [28]-[29]; NTP reply contentions [12]). They also contend the NTPCs are administratively defective as there is not a regime of auditing their proper compliance (NTP contentions [30]). I note that similar submissions look to have been considered by the Tribunal in Michael Ross v Lithium Australia NL at [76]-[78], [101]-[102] and Michael Ross v Gamboola Resources Pty Ltd at [81]-[83], [107]-[109].
On the first issue and as discussed in Michael Ross v Gamboola Resources Pty Ltd at [84], I consider the task of the Tribunal is to evaluate the risk of interference, that is, to identify and evaluate possible sources of interference and to determine whether there is a real risk of interference in the circumstances put forward by the parties in their evidence. As such, the issues put forward by the native title party in relation to cultural protocols, customs and laws are an integral component of the evaluation of the risk of interference, as is the relevant State protection regime.
On the submission that the NTPCs are administratively defective, while this contention has been put forward there is insufficient evidence in this matter upon which to properly consider this point. In doing this however I again point to Michael Ross v Gamboola Resources Pty Ltd where after some consideration based on the evidence placed in that matter, Member McNamara concluded that while a regulatory regime may not prevent all contraventions, this does not render this regime ineffective and each matter needs to be dealt with on its own facts (Michael Ross v Gamboola Resources Pty Ltd [95], [97]). I adopt the Member’s approach to this issue in this determination.
Section 237(a) – Is the grant of the proposed licence likely to interfere with community or social activities?
What community or social activities are undertaken on the proposed licence
The affidavits of Mrs Jacko and Mr Jacko attest to a range of community and social activities that are undertaken by the Juunjuwarra people in and around the area of the proposed licence. These can be summarised broadly as:
(a)corroboree and ceremony;
(b)camping, fishing and hunting; and
(c)cultural camps.
The native title party contends each of these are likely to be directly interfered with by the grant of the proposed licence and the subsequent exploration activities (NTP contentions [22]).
Regarding corroboree and ceremony, in her affidavit Mrs Jacko sets out that the group holds these and meetings on the side of Mount Webb Wakooka Road, ‘at the salt pan’ ([NJ affidavit 28]). Mrs Jacko states that corroboree, which are characterised as special meetings and gatherings, are held at least once a year, usually towards the end of the year for a duration of one to two weeks (NJ affidavit [32]). Mrs Jacko also attests that during corroboree, other groups from around the area are invited to share knowledge, trade, make implements such as spears and discuss what is occurring on their country (NJ Affidavit [33]). This is echoed by Mr Jacko in his affidavit (MJ affidavit [25]).
Both Mrs Jacko and Mr Jacko also outline the conduct of a ceremony called Bora at a location nearby which they say is an initiation ceremony for boys which they attest remains in practice and is of great significance. They also set out that this is a men’s only place which Mrs Jacko describes as a ‘poison place’, that is, a place where unauthorised visitors will become sick if they visit (NJ affidavit [29]-[31]; MJ affidavit [26]).
This is a location specific set of activities however there are contrasting sets of information as to the location in which they occur. In the mapping accompanying the affidavits of Mrs Jacko and Mr Jacko, it is indicated the site is near the border or slightly to the north of the mid portion of the proposed licence. The Gehr report on the other hand describes what I assume to be the same site as about 3 kms south of the Starcke River mouth placing it outside of the north east corner of the proposed licence (Gehr report [20]). There are accompanying coordinates in the Gehr report which confirm this location.
The assumption the Gehr report is referring to the same Bora site as Mrs Jacko and Mr Jacko is supported by the description provided which is consistent with the affidavits provided. This is:
A flat rock substrat[e] on a saltpan near tidal creek with mangrove, about 3kms to the south of the Starcke River mouth. Old Bora ground. There is an old initiation and men’s fighting ground in Juunyjuwarra that is taboo for women. No camping allowed there. Matthew Jacko described how the saltpan bora grounds were also for meeting up with other clan groups. (Gehr Report [20])
Irrespective of which location is correct or even if there are 2 separate locations, what can be said is that these grounds look to be external to the proposed licence or in very close proximity to its boundary.
In regard to camping, fishing and hunting, Mrs Jacko deposes that she and her family camp often in the area mainly during the dry season and in particular in the Munburra area in proximity to the Starcke homestead and the Starcke River. While doing this, Mrs Jacko says, the family collect bush foods, fish and hunt (NJ affidavit [41]-[44]).
For his part, Mr Jacko says ‘I go out onto Munburra and walk all around the country regularly. With my family, we still go fishing, hunting, gathering and camping by the rivers here and we still eat traditional food when we go out camping’ (MJ affidavit [29]) and that ‘[b]eing connected with our land is good for our spirit, it makes us strong. This is why we go back to country. If we are not connected to country we have no roots, no mind’ (MJ affidavit [28]).
Mr Jacko further deposes that most of the fishing activities occurs in Starcke River and Old Starcke Creek which meet approximately a kilometre from the homestead (MJ affidavit [31]), that the group undertakes hunting for bush turkey (MJ affidavit [36]) and expresses the concern this is becoming more difficult due to increased numbers of people now visiting the area (MJ affidavit [35]).
In relation to cultural camps, Mr Jacko’s affidavit outlines that the group commenced running cultural camps for children, based in what he describes as the wider area around the homestead using the dongas around the homestead as accommodation. He further states that the camps have run for three days but the hope is they can run for longer (MJ affidavit [38]-[40]). Regarding these camps Mr Jacko says:
The cultural camps are a way for the kids to stay connected with their culture, be on country and have knowledge passed on, the same way my uncles taught me. It is my responsibility to continue developing the young people’s knowledge of their culture (MJ affidavit [39]).
For the purposes of this determination, I accept what is outlined above to be community and social activities in the manner contemplated by the NTA and the principles outlined at paragraph [16] of Yindjibarndi v FMG and the cases cited therein.
Will the act likely interfere directly with the carrying on of community and social activities?
The native title party contentions emphasise issues relating to the NTPCs and land access provisions and the manner in which these instruments relate to the proposed grantee party work program. This, it is noted, is set to include high impact activities in years 4 and 5 which are contended to be likely to interfere with community and social activities (NTP contentions [12]).
On land access provisions, which I assume is a reference to the Common Provisions Act, the native title party contends a notice of entry is usually valid for 6 months and a standard Conduct and Compensation Agreement is usually in force while an EPM is current. The native title party also contends there is no ‘opportunity given in the notice of entry or a standard conduct and compensation agreement for the Native Title Party to know precisely which part of the EPM area the Grantee party intends to access, the time at which the Grantee Party intends to access the area, or for Traditional Owners to accompany the Grantee Party during these periods’ (NTP contentions in reply [11]).
Relating to the NTPCs, the native title party contends that an Exploration Activity Notice is valid for up to one year however for low impact activities such as those planned for years 1-3, the native title party only has a right to comment (NTP contentions in reply [12]). For these reasons, and due to the short time frame the area is accessible during the wet season, the native title party contends it is more likely than not there will be interference (NTP contentions in reply [22]).
The grantee party contends that the EPM does not give exclusive access to the land and therefore the activities of the grantee party are unlikely to interfere with community and social activities (GP contentions [12]). It also notes the operation of the NTPCs and the Common Provisions Act but in doing so, focusses more on sites of significance and high impact activities (GP contentions [13]-[14]). Finally, the grantee party contends the grant of the proposed licence ‘will not impede the rights of the Traditional Owners to conduct their activities on the land’ (GP contentions [18]).
At [5.12] of the GvP contentions the State submits that:
(a)the exploration activities of the grantee party are ‘inherently limited in scope’;
(b)the NTPCs, directed to minimising impact on native title, will apply;
(c)the activities of the grantee party will also be subject to protections in the Environmental Protection Act and the Aboriginal Cultural Heritage Act;
(d)the area has been subject to extensive prior exploration which may have already disrupted the activities.
In their reply contentions the native title party contests the assertion of the State that the licence area has been subject to extensive prior exploration activities and notes the history of mining tenements in the area. In particular the native title party notes that of the 40 historical tenements referred to by the State, just 6 have been active in the enactment of the NTA, 3 of which were no longer current by 1996 (NTP reply contentions [2]-[9]). In any case, it is only the currently proposed activities of the grantee party that are of relevance here.
The native title party also emphasises that traditional owners continue to access and use the proposed area and that traditional owners ‘spend significant periods of time on country during the dry season’ (NTP reply contentions [20]). The native title party, as a land owner, is also seeking to develop activities in the area of the licence, such as a ranger program (NTP reply contentions [21]). Finally they note that due to the dry season there is only a limited time the land is accessible, increasing the likelihood of interference.
What constitutes interference for the purposes of s 237(a)?
In Tullock v Western Australia at [106], Deputy President Sumner concluded ‘the ordinary meaning of ‘to interfere’ in the context of s 237(a) is action which has the affect of hampering or affecting adversely any community activities of the native title holders. In Walley and Silver, it was accepted that interference must involve some adverse affect on community or social activities.’
While the Tribunal may take into account the non-physical or spiritual aspects of a community activity in assessing the risk and impact of interference upon it, there must also be evidence the relevant act is likely to result in direct physical interference with the activity (see Silver v Northern Territory at [50]-[62]). It was in consideration of this that Member McNamara sets out in Mungarlu v FMG Pilbara (at [104]) that ‘[a]ccordingly, evidence that the proposed future act may cause emotional or spiritual distress on the part of individual members of the community will not be sufficient’ citing Walley v Western Australia at [13]-[21]. In this same determination at [105], Member McNamara further states:
In determining the likelihood of interference, the Tribunal must nevertheless have regard to the nature of the activity in question. For example, it cannot be said that an activity is not adversely affected if, for reasons attributable to the proposed future act, the activity can only be carried on in a substantially different manner. In this respect, the Tribunal is entitled to take into account the essential characteristics of the activity, including the content of any traditional laws and customs which inform or underpin the activity. This is particularly so given that s 237(a) is concerned with those activities which are a manifestation of the native title party’s registered native title rights and interests (see Silver v Northern Territory at [58]; Tullock v Western Australia at [96]). However, the native title party cannot merely assert that the proposed future act is likely to result in unwanted effects, and there must be evidence the apprehended interference will be substantial in its impact upon community or social activities (cf Smith v Western Australia at [26]).
Taking this into account, it is my view the proposed exploration is unlikely to have a substantial effect on the activities described due to a number of factors. In the first instance, I am of the view the nature of the activities in years 1-3 is unlikely to interfere with the ability of native title party to conduct ceremony, to engage in fishing, hunting and camping or to conduct cultural camps due to the activities of the grantee party being low impact and intermittent. Further to this, in relation to the Bora site, this looks to be located at the boundary of, or external to, the proposed licence and as such I consider activities which may occur here are unlikely to be interfered with.
During this year 1-3 period, notice will be required from the grantee party prior to the conduct of exploration activities and access which will enable planning on the part of the native title party if it is at all required, however it is my view the nature of the exploration activities themselves will not create a risk of interference irrespective of this notice.
In years 4-5, the grantee party will be required to take additional steps through the operation of the NTPCs and the Common Provisions Act which require engagement with the native title party on planned exploration activities and their conduct. While exploration activities during this time will be more intense, I consider that the requirements of the NTPCs and the Common Provisions Act and the Conduct and Compensation Agreement that will arise from them will provide the native title party with sufficient opportunity to mitigate the risk of interference where it may exist.
In light of these reasons, I do not find the grant of the proposed licence is likely to interfere directly with the carrying on of the native title party’s community and social activities.
Section 237(b) – Is the grant of the proposed licence likely to interfere with areas or sites of particular significance?
In addition to the affidavits of Mrs Jacko and Mr Jacko, the native title party refers to accompanying cultural heritage and anthropological reports which identify and describe a number of sites within and surrounding the tenement area (NTP contentions [23]). These sites are mapped out against the tenement in an accompanying cultural heritage survey map (Gehr report, cultural heritage survey map).
Both reports arose from what was, in effect, a one day survey of the area in early 2021 and note the high likelihood of there being further cultural heritage sites and the need for systemic cultural heritage survey before any soil removal or felling is done’ (NTP Contentions [23]; Gehr report [21]; Barker report [12]-[13]).
The native title party references the accompanying reports and affidavits, and notes the identification of:
(a)White mangroves on Mt Gargaal (baara barra) (Starcke Report [148]; NJ Affidavit [26]-[27]; MJ Affidavit, [20]-[22]; Gehr report [17]);
(b)meeting and ceremony places, Bora ceremony site (NJ affidavit [29], [32]-[35]; MJ affidavit [17], [25]; Gehr report [10], [18], [20]; Starcke Report [149]);
(c)Mango Tree birthing places (NJ affidavit [36]-[37]; MJ affidavit [15]-[16]; Gehr report [9], [21]; Barker report [6], [12]);
(d)burials within Munburra (Starcke Report [147]; NJ Affidavit [38]-[39]);
(e)story places (NJ affidavit [33], [35]; MJ affidavit [15], [22], [23]-[24]; Gehr report [14], [17], [19], [21]; Starcke Report [148]-[149]; Barker report [9]-[10], [12]);
(f)culturally modified trees (MJ affidavit [27]; Barker report [7-8], [12]; Gehr report [12]); and
(g)stone arrangements (Barker report [4]-[5]).
Neither the State nor the grantee party provide contentions on whether these sites are of particular significance, aside from outlining the legal framework for deciding this, and instead focus on whether there may be interference.
In terms of evidence in support of the ‘particular significance’ of those areas listed above, the affidavits of Mrs Jacko and Mr Jacko emphasise strongly the white mangroves on Mt Gargaal. Mrs Jacko says:
There is a white mangrove on our country which grows high above sea level, close to the top of Mt Gargaal. You can find all of the animals and fish you can find in the sea in this mangrove. This place is a special place as it has provided for Juunju People when our people have been living on country. This place is sacred to us [and] should not be disturbed…[p]eople who are not Juunju should not go here; this is a poison place’ (NJ affidavit [26] and [27]).
Mr Jacko states:
One of our sacred places is the mangrove that grows up on Mount Gargaal. It is a story place for the old people. It is special to Juunju People and must be respected’ … ‘[i]t is about a day walk up from the homestead’ … ‘[t]he White Mangrove is a poison place. We try not to share information about this site because it is sacred, and we do not want people going up there and disturbing the spirits. The ancestors will be angry with us for not protecting this place (MJ affidavit [20]-[22]).
The native party contentions note that this mangrove is also discussed in the Starcke report by Ms Gladys Bowen who identified it as baara barra (Starcke report [148]) also noting that ‘only Munburra people can go to the Mangrove, and if others go there they might get sick’ (Starcke report footnote 14, p 48).
In my view, the evidence provided regarding this site has sufficient detail in terms of location and its attributes from the point of view of the group. Additionally, the emphasis placed upon it in the materials ensures the site clearly stands out as being of significance in accordance with the traditions of the group. As such, I accept this to be a place of particular significance.
Mrs Jacko and Mr Jacko also provide detail on the gathering and ceremonial areas on the salt pan that are examined in paragraphs [72]-[73] of this determination, although the examination in these paragraphs is focussed more on the activities than the sites. Even so, relevant to s 237(b) is the description of the physical place, what it provides for in terms of activity and how this activity generates significance for the site, the location of which is set out in paragraphs [74]-[76].
In my view, the totality of the evidence provided for this site, particularly that of the activities that are said to occur there, enable a finding the ceremonial places on the salt pan are places of particular significance in accordance with the traditions of the group.
Emphasis is also placed on a site named the Mango Tree by both Ms Jacko and Mr Jacko, being a place near the Starcke Homestead which they say is a birthing place for past family members. (NJ affidavit [36]-[37], MJ affidavit [15]). This is also detailed in the Gehr report at (at [9] and [10]) and the Barker report (at [6]). The Gehr report and affidavit of Mr Jacko in particular, express strong veneration for this site and the reasons members of the group hold it to be significant through the generations of strong physical and spiritual connection as viewed through the lens of the culture and tradition of the group (MJ affidavit [16]-[17]).
Both affidavits, in addition to coordinates provided in the Gehr and Barker reports, indicate this site is located on ML 2886 and is therefore not on the proposed licence area. It can be noted however that ML 2886 is small in size (some 6ha) so the site is proximal to the proposed licence area. Further, in their contentions in reply the native title party note that while GPS coordinates may pinpoint a site, they do not show its extent and state that ‘[f]or example, while the Mango Tree can be pinpointed, the area of the meeting place around the Mango Tree is not marked precisely’ (NTP contentions in reply [16]). As such I accept that portions of this site may be located on the proposed licence area.
From the evidence provided, the Mango Tree stands out clearly from other areas or places in the broader landscape as being of one of particular significance to the group. While more recent, the group describe the attributes of the area in a manner which is beyond historical heritage value and describe attachment, connection and a further spiritual dimension arising from the belief system of the group. As such, I accept the Mango Tree area as a place of particular significance.
Evidence is also presented in relation to burials in the Munburra area. Mrs Jacko says she believes there are burials near the 12 mile stock yard (location provided, NJ affidavit [38]-[39]) while the Starcke Report records that ‘King Jacko’s mother and father … are buried there, near an old palm tree beside an old stock yard’ (Starcke Report [147]). Ms Jacko also outlines the spiritual consequences herself and her family may experience if these places are disturbed.
While undoubtedly significant to the Juunju group, I am of the view there is insufficient specific evidence for this particular site, beyond its basic attributes, to allow a finding of particular significance. While further or specific evidence may have led to a different finding here, in this case I must simply draw attention to Part 2, Division 2 of the ACHA and supporting sections such as Part 2, Division 3 and Part 3 which deal with Aboriginal human remains and their protections.
A further area mentioned by Mr Jacko in his affidavit is the Emu story (MJ affidavit [23]-[24]) which is also mentioned in the Gehr report. This is said to be located along the Mount Webb Wakooka Road to the south of the 12 mile yards, with the location being indicated in a map attached to Mr Jacko’s affidavit which concurs with coordinates provided in the Gehr report. The Gehr report notes several other Juunju sources that have mentioned the place of the Emu Story but that it now forms part of a catalogued site desecration due to road construction (Gehr report [14]).
While I accept this area to be of significance, I am not of the view that the evidence presented allows a finding it is of particular significance in the sense required by s 237. This conclusion is not drawn from the previous disturbance described, rather it is as a result of the information provided which, while it presents an outline of the area and its location, in my view does not express a deeper significance for the area.
The native title party also notes culturally modified trees and stone arrangements as outlined in the Barker report. While able to be located fairly precisely and undoubtedly points of interest, like the Emu story, the evidence provided does not enable a finding these areas are of particular significance.
Site Rich
In light of these identified sites, the native title party also contends that the area is ‘site rich’, the implication being that this therefore increases the risk of interference with places of particular significance (NTP contentions [31]-[32]). The notion of an area being ‘site rich’ has been addressed in previous determinations of the Tribunal, with decisions ultimately revolving around the evidence presented in particular matters. Of greatest relevance here is the consideration in Hale v Mings Mining Resources at [81] which states:
The Tribunal has found on a number of occasions that the term ‘site rich’ is not a particularly helpful lens through which to view the issues that need to be determined in an inquiry such as this. To the extent that ‘site rich’ has been used in previous decisions, it has reflected an evidentiary conclusion about the existence of areas or sites of particular significance and the likelihood of interference (see Lungunan v Geotech International at [43]; Campbell v Murchison Metals at [55]). The central issue remains whether the grant of the licence is likely to interfere with areas or sites of particular significance. The nature or distribution of the areas or sites may have a bearing on the risk of interference. However, the evidence must establish the existence of areas or sites likely to be affected by the grant of the licence. It is not enough to simply assert an area is ‘site rich’ or provide reasons why sites that may exist in a given area have not been identified
In this case, while the area may be ‘site rich’, insufficient evidence has been provided as to the tapestry across the landscape these sites may provide and what the significance of this would be. As an example of this, the native title party notes in its contentions in reply the existence of unmapped significant sites including birthplaces and burials (NTP contentions in reply [17]) and that there are places of significance that remain unmapped due to cultural sensitivity (NTP contentions in reply [26]).
Regarding cultural sensitivity in the first instance, the Tribunal routinely utilises mechanisms to protect sensitive and gender restricted cultural information to ensure evidence can be submitted and it is protected properly. This is of particular relevance as determinations can only be made on evidence submitted to an inquiry rather than on broad statements. As such, while there may be unmapped areas that are of particular significance for the native title party that remain unmapped, I am unable to find this is the case in this inquiry without specific information or evidence in regard to them. I am therefore unable to make findings as to the existence and significance of these places, or consequently that such places are at real risk of interference.
Is there a risk of interference with places or areas of particular significance?
The native title party contends that:
… it is important under traditional law and custom for Traditional Owners that people do not visit country the subject of the EPM without having cultural knowledge or being accompanied by Traditional Owners. Failure to observe cultural protocols could adversely affect that person’s health and the well-being of the Traditional Owners.’ NTP contentions [28]
and in relation to access:
There is no opportunity given in the notice of entry or a standard conduct and compensation agreement for the Native Title Party to know precisely which part of the EPM area the Grantee Party intends to access, the time at which the Grantee Party intends to access the area, or for Traditional Owners to accompany the Grantee Party during these periods. (NTP contentions in reply [11])
The effect of these contentions is that due to the cultural protocols contained within the traditions of the native title group, a lack of accompaniment by Traditional Owners or failure to observe cultural practices, in itself, gives rise to interference. While it is the case that the traditions of the native title party form part of the assessment for s 237(b) and the understanding of what interference might be in a particular circumstance (FMG Pilbara v Yindjibarndi Aboriginal Corporation [75]), it remains that the s 237(b) assessment must relate to a specified area or site rather than pertaining to spiritual and cultural concerns about the broader area or landscape (see for example Mungarlu v FMG Pilbara [141]).
Further to this, the native title party contends the NTPCs do not contain adequate conditions for addressing the risk of interference, particularly in relation to undertaking cultural heritage mapping (NTP contentions [23], [27]). Because of the likelihood of there being further unmapped cultural heritage sites the native title party contends that, without a heritage survey ‘it is more likely than not’ that the grantee party will interfere with or inadvertently damage cultural heritage (NTP reply contentions [17]-[18]).
In contrast, the grantee party contends that the NTPCs and the Common Provisions Act provide the requisite protections. The grantee party contends that under the NTPCs the grantee party must notify the native title party of any proposed exploration activity and provide an opportunity to respond (GP contentions [13]). Pursuant to the Common Provisions Act the grantee party contends it must notify land holders if the grantee party intends to explore and develop a Conduct and Compensation Agreement prior to carrying out ‘high impact activities’ (GP contentions [14]).
Similarly, the State submits that the grant will not interfere with the sites of significance due to the conditions placed on the grant of the tenement and the operation of the ACHA, the MRA and the EPA (GvP contentions [5.17]).
I have outlined what I anticipate would occur in the implementation of the Queensland framework in paragraphs [56]-[66] of this determination. Having considered this and the evidence provided, I am satisfied there is a low risk of interference with the identified sites of significance.
In the first instance, I am satisfied that the risk of interference to the Bora ceremony/meeting site and Mango tree birthing places is low as a result of them being on the margin of, or external to, the proposed licence area. In reaching this conclusion, I am satisfied the nature of the activities of the grantee party will not have impact beyond their specific locations within the proposed licence area.
For those portions of these sites that may be located within the proposed licence in addition to the White Mangrove site area on Mt Gargaal, which is situated wholly within the proposed licence area, I am satisfied that the activities proposed for years 1-3 are of very low impact and are limited in their extent, so present a low risk of interference. In arriving at this view, I note that activities for years 1-3 impose a lesser set of requirements on the grantee party under the Queensland framework than years 4-5, however due to the nature of the activities proposed I am of the view they present a low risk of interference even though these lesser requirements exist.
This can’t be said for years 4-5 when exploration activity is set to intensify. In this time period however, I have formed the view that for this matter at least, the components of the Queensland framework contain sufficient provision through the ACHA, NTPCs and Common Provisions Act to enable the native title party to engage with the grantee party and to generate outcomes that overcome any risk to heritage places that may exist. As such, while exploration activity intensifies I am of the view there is a low risk of interference with sites of particular significance in this time period by virtue of the operation of the Queensland framework.
It is for these reasons that I am satisfied the grant of the proposed licence does not present a real risk of interference to areas or sites of particular significance to the native title party.
Section 237(c) – Is the grant of the proposed licence likely to cause major disturbance to land or waters?
Neither the native title party nor the grantee party have made submissions directly related to s 237(c).
In relation to s 237(c) the State contends that the grant is not likely to involve major disturbance due to the conditions placed on the grant of the tenement and the operation of the MRA and the EPA (GvP contentions [5.18]). The State also submits that acting lawfully in the exercise of the rights under the grant will not cause a major disturbance by the standards of the whole Australia community (GvP contentions [5.18]).
Due to the lack of materials in relation to s 237(c), I am unable to find that the grant of the proposed permit is likely to result in major disturbance to the land and waters concerned.
Determination
The determination of the Tribunal is that the grant of EPM 27467 to Oosen Lewis Mining Pty Ltd is an act attracting the expedited procedure.
Glen Kelly
Member
15 February 2022
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