Miriam Atkins & Ors on behalf of Gingirana v Cosmopolitan Minerals Limited & Another
[2017] NNTTA 63
•11 October 2017
NATIONAL NATIVE TITLE TRIBUNAL
Miriam Atkins & Ors on behalf of Gingirana v Cosmopolitan Minerals Limited & Another [2017] NNTTA 63 (11 October 2017)
Application No: | WO2016/0643 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Miriam Atkins & Ors on behalf of Gingirana (WC2006/002)
(native title party)
- and -
Cosmopolitan Minerals Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven |
Place: | Perth |
Date: | 11 October 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is attracted |
Legislation: | Native Title Act 1993 (Cth), ss 151(2), 155, 237 Mining Act 1978 (WA), s 66 Mining Regulations 1981 (WA), reg 20 Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA) Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) |
Cases: | Atkins and Others on behalf of Gingirana v Drillabit Pty Ltd and Another [2016] NNTTA 17 (‘Gingirana v Drillabit’) Cheinmora v Striker Resources NL; Dann v State of Western Australia [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘MNR v FMG Pilbara’) Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurraranktaja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd [2012] NNTTA 115 (‘Wiluna v Marford Group’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives(s) of the native title party: | Mr Gavin Dunn, Central Desert Native Title Services Ltd Ms Felicity Noonan, Central Desert Native Title Services Ltd |
| Representative(s) of the grantee party: | Ms Sara Winton, Mining Access Legal |
| Representatives(s) of the Government party: | Mr Michael McMahon, Department of Mines, Industry Regulation & Safety Ms Sarah Power, State Solicitors Office |
REASONS FOR DETERMINATION
This decision considers whether the State Government of Western Australia can grant exploration licence E52/3087 to Cosmopolitan Minerals Limited. The licence is 86.82 square kilometres and located 171 kilometres north east of Meekatharra in the Shire of Meekatharra. The Gingirana registered native title claim overlaps 44.36 per cent of the licence (approximately 38.51 square kilometres of the overall licence size). The public notice issued for the licence included a statement that the State considers the negotiating parties need not negotiate in good faith with a view to obtaining the agreement of relevant native title parties to the grant of the licence, and that the expedited procedure should apply instead. Gingirana lodged an objection with the National Native Title Tribunal against the assertion of the expedited procedure on this licence.
My task is to determine whether the grant of the licence is an act attracting the expedited procedure (in which case the State can grant the licence to Cosmopolitan Minerals without negotiations with Gingirana) or is not an act attracting the expedited procedure (meaning Cosmopolitan Minerals, Gingirana and the State must negotiate in good faith with a view to reaching agreement about the grant of the licence). My decision on this must rest on the criteria set out in s 237 of the Native Title Act ('the Act'). Specifically, I must determine whether the grant of the licence is likely to:
(a)directly interfere with community or social activities carried on by Gingirana;
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title holders; and
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
All parties provided contentions and relevant information. Accompanying Gingirana’s statement of contentions is the affidavit of Mr Timmy Patterson. Mr Patterson states he is a traditional owner and lawman (wati) for the country covered by the licence. He states he is a member of the Gingirana claim group and speaks for the Gingirana claim area. I accept the affidavit as provided by Gingirana and I accept Mr Patterson has authority to speak for the area of the licence and the special places inside it. Accompanying the grantee statement of contentions is the affidavit of Mr Wilson Stanley Forte, who is the Managing Director of Cosmopolitan Minerals. I accept the affidavit as evidence of the works and activities Cosmopolitan Minerals intends to conduct on the licence.
I have considered the material provided to the Tribunal in relation to the expedited procedure objection application and I am satisfied it is appropriate to deal with the inquiry ‘on the papers’ (that is, without a formal hearing), pursuant to s 151(2) of the Act.
The Tribunal’s Geospatial Services team prepared a map of the licence area and surrounds to assist with this inquiry. The Tribunal provided the map to parties by email on 4 September 2017 and no party took issue with me using the map in this inquiry.
Gingirana’s contentions argue the grant of the licence, and the exercise by Cosmopolitan Minerals of the rights afforded to it by that grant, are contrary to s 237(a) and 237(b) of the Act. They argue the grant is likely to be the cause of interference with Gingirana’s community or social activities and it is likely to directly interfere with areas or sites of particular significance to Gingirana. As noted at [2], I must also inquire into whether the grant will be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. However, Gingirana does not argue this point. Based on the limited evidence before me on that issue, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Is the grant likely to interfere directly with the carrying on of Gingirana’s community or social activities?
i.What are the community or social activities of Gingirana?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Cosmopolitan Minerals’ proposed activities?
iv.Is the grant of the licence likely to substantially and directly interfere with the community or social activities?
b)Will the grant interfere with areas or sites of particular significance to Gingirana?
i.What areas or sites are identified?
ii.Are any of the identified sites areas or sites of particular significance?
a) Will the grant interfere directly with the carrying on of community or social activities of Gingirana?
Before examining the evidence in this particular matter, I note I may only have regard to community or social activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant registered native title rights and interests may be summarised as the right to: access, remain in and to use the land for any purpose; access resources and to take for any purpose resources in that area; engage in spiritual and cultural activities on that land; maintain and protect areas, places and objects of significance in or on that land; protect resources and the habitat of living resources in that area.
What are the community or social activities of Gingirana?
Mr Patterson states the main community and social activities the members of the Gingirana claim group carry out on the licence area are camping, hunting and gathering food, and conducting native title meetings.
Mr Patterson deposes the ‘Putijarra mob’ meet a couple of times a year at a place called Middle Branch, which is near where the Gascoyne River crosses the ‘main road’ and is in the middle of the licence area. Gingirana explain in their contentions in reply that the Putijarra mob are those people associated with the Gingirana claim area. I assume that the road Mr Patterson refers to is the Great Northern Highway, which runs north to south through the middle of the licence and crosses the Gascoyne River at a place within the licence area that could loosely be referred to as the ‘middle’. This assumption seems to be confirmed by Gingirana in their contentions in reply. I note the map attached to Mr Patterson’s affidavit accords with the Tribunal’s map, which shows the Great Northern Highway running through the middle of the licence and crossing the Gascoyne River in a place around the middle of the licence area. Mr Patterson states there are no other good spots like Middle Branch for native title meetings in Gingirana country apart from the ‘Kumarina roadhouse but too many whitefellas there’.
Mr Patterson deposes members of the Gingirana claim group camp while travelling on the flats at Middle Branch where there are mulga trees, which the campers use for firewood when it is cold and shade when it is hot. Mr Patterson also deposes the campers hunt for goanna in the spinifex or hunt plain kangaroo. He states the Gingirana claim group fear that Cosmopolitan Minerals will dig holes or make tracks and that will scare away animals for hunting. Mr Patterson also states the Gingirana claim group are worried that exploration work by Cosmopolitan Minerals will make it hard to camp at Middle Branch if Cosmopolitan Minerals take away the mulga trees.
The State’s contentions argue that Mr Patterson’s affidavit provides no evidence of the frequency or numbers of Gingirana people currently camping, hunting or collecting bush tucker in the area. The State claims the evidence regarding camping on the licence is vague and that details such as the frequency of these activities, which community members are involved, and whether the activities could be conducted elsewhere, have not been provided.
I am satisfied that the Gingirana people undertake the community activities of meeting, camping and hunting around the Middle Branch section of the licence area at least twice per year but possibly more. I accept that the Middle Branch area is an important place where the Putijarra mob of the Gingirana claim group feel comfortable to meet to discuss matters, including native title matters. However, I agree with the State’s contention that Mr Pattersons’ affidavit lacks some important details regarding these activities, such as the number of people involved and more detail on the frequency of each of the activities. Without this information, a satisfactory analysis of the likelihood of interference becomes difficult. I do accept Middle Branch is a focal point for these activities for the claim group because of the jukurrpa which is stated to run through the licence and the sites created by the jukurrpa (as outlined in more detail under the analysis of s 237(b) below).
Are there any other interests which have already interfered with these activities?
I must take into account other lawful activities which are likely to have already impacted on the community or social activities of Gingirana. Evidence provided by the Department of Mines, Industry Regulation & Safety shows the exploration licence is almost entirely overlapped by a pastoral lease (Three Rivers at 98.5%) and wholly by a historical lease (Historical Lease 394/448). Other tenure includes a petroleum exploration permit (100%) and road reserve (less than 0.1%).
The licence has been subject to a number of previous exploration licences, active between 1991 and 2010 and overlapping the licence between 0.3 to 100 per cent. The State contend that prior mineral exploration over the licence is likely to have affected, and continue to affect, the extent to which community and social activities can be carried out in the relevant area.
The State points to these various interests over the land, noting that Gingirana’s communal and social activities have been subject to, or co-existent with, these lawful activities for some time. The State contentions assert that hunting and mineral exploration are ‘by their nature, inherently capable of coexistence’, and that the previous mineral exploration activities in the area show that the activities of both the Gingirana claim group and the explorer can co-exist.
The State also contends that if the community and social activities of the Gingirana claim group are limited to the Middle Branch location then the activities of Cosmopolitan Minerals are less likely to intersect with those of the Gingirana claim group, particularly if Cosmopolitan Minerals is made aware of the specific location, timing and duration of the Gingirana claim group meetings.
Gingirana’s contentions in reply state that the historical grant of exploration tenure over the licence does not necessarily mean exploration activities have occurred and the State should not conflate the two. Gingirana argue in reply that no evidence has been provided of any prior mineral exploration actually occurring, something which would be within the State’s knowledge due to its capacity as a regulator. Gingirana contend the State has failed to detail the basis on which the activities permitted by a pastoral lease can be compared to those authorised by an exploration licence in considering interference. Further, it argues that the mere existence of a pastoral lease over a given area does not constitute evidence of interference by pastoral activities in that area.
In considering the impact of past and present underlying tenure, I accept there is likely to have been some interference with Gingirana’s community and social activities. However, there is little evidence to suggest this interference has been substantial and there appears to have been few constraints on Gingirana’s activities to date.
What are Cosmopolitan Minerals’ proposed activities?
Mr Forte states the company is targeting gold, nickel and lithium in the basement rocks of the licence area. I note the first year work program provided by the explorer to the State refers to the target minerals as ‘gold, base metals, rare earths & uranium’. Mr Forte deposes that the proposed work on the licence will be staged. Mr Forte deposes he has not finalised the company’s exploration plan for the licence area, however, he anticipates that:
a)the field reconnaissance and mapping will involve:
i.mapping in respect of an area of approximately 20 square kilometres;
ii.removal of soil and rock chip samples from any areas of interest which have been identified as a result of a review of previous exploration data;
iii.each sampling area of interest will be in respect of an area covering approximately one hectare;
iv.work will be undertaken by two people;
v.attendance at the site will be for up to three consecutive days, with no camping on site;
vi.the use of hand held tools, such as a rock hammer or small plastic trowel; and
vii.access on existing roads and tracks with a light vehicle (for example a four wheel drive); and
b)the drilling stage (if drilling is warranted) would involve:
i.removal of chip or core samples from specific target locations which have been identified as a result of the sampling stage;
ii.each drilling target location will be in respect of an area covering approximately 100 square metres;
iii.work will be undertaken by up to five people;
iv.attendance at varying sites will be for up to three weeks (one location at a time), with personnel to camp on site in caravans;
v.the use of a truck mounted reverse circulation or diamond drill to obtain the chip or core samples; and
vi.access on existing roads and tracks with light vehicles (for example a four wheel drive) and the drill rig, and clearing where required for drill pads and to enable access for the drill rig.
Mr Forte deposes rehabilitation of the land for both stages of exploration will be conducted in accordance with the requirements of the Mining Act and the Mining Regulations, and no water will be obtained from any existing creek or rivers on or near the licence area. Mr Forte also deposes that no work will be conducted on the licence during the months of November to February each year due to the weather. He anticipates Cosmopolitan Minerals will conduct less than three visits per calendar year to the licence area. I note the exploration program provided to the State indicates approximately 100 samples would be taken, and that RAB (Rotary Air Blasting) drilling will occur in a quantity of 100 (although it is not clear if this refers to the number of metres drilled vertically), which appears to be over the same location of where the samples are taken.
Is the grant of the licence likely to substantially and directly interfere with the community or social activities of Gingirana?
I must consider the activities currently being undertaken on the licence by Gingirana which I have found to be relevant to s 237(a), and weigh these against the activities Cosmopolitan Minerals is likely to undertake if the licence is granted.
It appears from Mr Patterson’s affidavit that the main issue of concern to Gingirana in relation to community or social activities in the licence is the activities of Cosmopolitan Minerals interfering with Gingirana people’s activities around the Middle Branch area, where they conduct meetings, camp, hunt and gather food in both the wet season and the dry season.
The licence, if granted, will authorise Cosmopolitan Minerals to rights as set out in s 66 of the Mining Act 1978 (WA) and regulation 20 of the Mining Regulations 1981 (WA), modified by the conditions attached to the grant. Subject to the various conditions placed on the grant, these rights include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes. These rights will be granted for a period of five years with options for renewal.
Cosmopolitan Minerals states in its contentions that it intends to abide by, and is aware of, its obligations under the Aboriginal Heritage Act, the State’s Due Diligence Guidelines, the Environmental Protection Act and the Environmental Protection (Clearing of Native Vegetation) Regulations. Cosmopolitan Minerals points out it has never been prosecuted under the Aboriginal Heritage Act or accused of a breach of the Aboriginal Heritage Act. It also states it has offered to enter into a Regional Standard Heritage Agreement (RSHA) with Gingirana, who did not accept the offer, and Cosmopolitan Minerals continues to hold that offer open to Gingirana. I note the State supports the assertions of Cosmopolitan Minerals and also asserts the presumption of regularity in favour of the company. The State intends to include an RSHA condition on grant of the licence, which allows Gingirana to request the grantee execute an RSHA.
Gingirana’s contentions in reply state the RSHA does not adequately address Gingirana’s concerns regarding heritage protection and is not accepted by Gingirana. Gingirana also seeks to challenge the presumption of regularity asserted by Cosmopolitan Minerals and the State by citing President Webb QC in Yindjibarndi Aboriginal Corporation v FMG Pilbara where she said (at [77]) that parties will be required to produce evidence to support their contentions, particularly where the facts are peculiarly within their own knowledge. Following on from this, Gingirana assert the previous compliance of Cosmopolitan Minerals with the State’s regulatory regime is peculiarly within the knowledge of the State and evidence should be brought to support that contention.
The State counters Gingirana’s argument by citing Member McNamara in MNR v FMG Pilbara, where he said at [72]:
With respect, this argument inverts the proper order of inquiry in circumstances where a tribunal of fact is asked to draw inferences about the conduct of a party… the Tribunal must be mindful of the nature of the interference it is being asked to draw, including the seriousness of the subject matter, the inherent unlikelihood of a particular occurrence and the gravity of the consequences that flow from any finding.
The State then went on to cite Walley v Western Australia where the presumption of regularity was described as follows:
Unless there is evidence to the contrary the Tribunal will act on the basis that the government will exercise its powers including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime including conditions imposed which governs [sic] the exercise of the rights under the grant.
I agree with the State’s argument. The arguments by Gingirana would seek to upend the presumption of regularity and are not supported by the weight of jurisprudence in the area. The presumption of regularity means that I will assume that Cosmopolitan Minerals will comply with the State’s regulatory regime. There is no evidence before me to suggest otherwise, and the company has extensively explained its awareness of, and intention to comply with, the State’s regulatory regime.
Cosmopolitan Minerals has also explained its planned exploration program and how it will be carried out, including the frequency with which it will attend the licence area and the number of its employees likely to be carrying out activities at any one time. It appears Cosmopolitan Minerals’ activities will be carried out on a small scale, for limited periods of time, with a small number of workers during less than three occasions per year, excluding the period of November to February each year.
I also note the activities of Gingirana on the licence appear to be somewhat confined to the Middle Branch area and appear to be carried out a couple of times per year. This will reduce the likelihood of the activities of Cosmopolitan Minerals interfering with Gingirana’s activities for the following reasons. Firstly, as Gingirana’s activities are largely confined to one area on a limited number of occasions, it is unlikely there will be contact between parties on the licence (particularly considering the limited periods during which Cosmopolitan Minerals will also be on the licence and the size of the licence). Secondly, Cosmopolitan Minerals is now on notice of the uses to which Gingirana put the Middle Branch area and will be able to avoid the area, or if necessary consult with Gingirana about any activities in the vicinity of Middle Branch.
In the circumstances, I conclude the particulars provided are such that the activities of Cosmopolitan Minerals are unlikely to directly or substantially interfere with the social or community activities of Gingirana.
(b) Will the grant interfere with areas or sites of particular significance to Gingirana?
Section 237(b) of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular - that is, more than ordinary - significance to Gingirana, in accordance with their traditions, within the licence. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites. I am aware the sites referred to in the evidence are sensitive in nature, so provide broad comment about them, rather than detailed specifics.
This has been a most difficult decision to make as it appears there is more information available about this area, and sites within the area, than has been provided to the Tribunal in this inquiry. I can only base my decision on what has been provided, rather than what is alluded to or implied. My decision is that the sites identified are not of particular significance, and I outline further detail about that decision below. As the existence of such sites are a precondition for inquiring whether the grant of the licence is likely to cause interference, I do not provide further analysis on the issue of interference.
What areas or sites are identified?
Mr Patterson states there is a very important jukurrpa story that travels through the licence area called Pikurta. Mr Patterson provides some detail about the path of the jukurrpa, which I do not replicate here due to its sensitivity. It is sufficient to note Pikurta enters the licence area from the north, and travels through a hill in the middle of the licence, and then heads east through the tenement to Jiminya Pool on the Gascoyne River just outside the licence. It travels through an area north of the licence which is said to be the source of the name of the native title claim being Gingirana. Mr Patterson deposes the hill he refers to as being in the licence area was made by Pikurta and Pikurta is there now in that hill. He states ‘the old men know where he [Pikurta] travels, and they know where he stops’ and he states parts of the jukurrpa are restricted to wati, but it is not entirely clear whether one of these sites is the hill.
While the Tribunal map does not show a hill in the middle of the licence, I can clearly see on the map where the Great Northern Highway crosses the Gascoyne River and this has already been defined by Mr Patterson as the approximate location of the Middle Branch area. Mr Patterson deposes all the places where the jukurrpa sits down on the land are connected, and if one part is hurt then other parts can be hurt too. He states any activities by Cosmopolitan Minerals near the hill site would mess up the Pikurta jukurrpa and Gingirana would lose its connection with country. Mr Patterson believes if the jukurrpa doesn’t remain strong, then the country doesn’t remain strong and the people don’t remain strong. Mr Patterson deposes he and other wati are responsible to other desert wati to protect the jukurrpa. He states he will be punished, possibly by spearing, for not protecting the jukurrpa. Mr Patterson deposes parts of the Pikurta jukurrpa are gender restricted and only wati may go into those places. He states unauthorised entrants will become sick and the wati will be punished, so a wati needs to go out on country with Cosmopolitan Minerals to show them where they cannot go.
Mr Patterson’s descriptions infer the presence of other sites in the licence area associated with the Pikurta jukurrpa, but there is nothing concrete from which I can draw conclusions about sites other than the hill site, and even information about the hill site is sparse. There is a site registered on the Department of Aboriginal Affairs heritage database called Jiminya Pool, which is recorded as a restricted location - its western boundary only just crosses the easternmost boundary of the licence area and the Tribunal’s map indicates the geographical entity of Jiminya Pool actually lies outside the licence area.
I note Mr Patterson deposed he and other wati provided evidence about Pikurta (specifically in relation to the tenement area) to the Federal Court as part of their native title claim, in a men’s only session, but this information was not provided to the Tribunal. It is always preferable for parties to provide sufficient evidence to support their contentions. In recognition of the sensitive nature of the evidence which can be submitted in these matters, the Act allows me to direct that certain evidence should not be disclosed except in such a manner, and to such persons, as I specify (see s 155 of the Act).
Are any of the identified sites areas or sites of particular significance?
I must decide whether the Pikurta jukurrpa or any sites associated with that jukurrpa identified in the contentions and evidence are of particular significance to Gingirana in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]). It is important to note what ‘particular significance’ means in the context of a Tribunal inquiry, and I refer to Carr J in Cheinmora v Striker Resources who stated:
It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If Parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions.
After much analysis of the material and evidence provided, I have no doubt that the Pikurta jukurrpa and some of the sites along its path are of significance to Gingirana. However, in the absence of detail on the particular significance of these areas and their relationship with the traditions of Gingirana, I cannot conclude any of the sites are of particular significance – I provide some further reasons for my decision below. It may be that such information was provided in more detail in the Federal Court proceedings, but I must base my decision on information provided to this Tribunal.
Pikurta jukurrpa
I previously found in Gingirana v Drillabit (at [55]) that jukurrpa stories outlined in that matter held great importance to Gingirana, and that the expedited procedure did not apply in that inquiry. The State argues there must be sufficient evidence to identify a specific site or area of significance associated with the stories that stands out in some way and distinguishes itself as particularly significant (as set out by President Webb in Yindjibarndi Aboriginal Corporation v FMG Pilbara at [130]). In Gingirana v Drillabit, the evidence of a traditional owner was supported by detailed evidence from an anthropologist. Sites associated with the jukurrpa, which were gender restricted, were outlined in some detail, and found to be of particular significance and likely to suffer interference from the activities of the explorer. In comparison, the evidence in this present matter is relatively brief.
In Wiluna v Marford Group, I found that the native title parties had provided sufficient evidence describing the path of jukurrpa through the tenement as well as the links of the jukurrpa with particular sites. The native title parties identified the sites sufficiently so that I concluded they were of particular significance and to be able to conclude there was a real risk of interference with those sites. Mr Patterson has provided sufficient evidence to allow me to identify the approximate path of the Pikurta jukurrpa through the licence area, however, there is insufficient evidence to show the particular significance of it to Gingirana. I acknowledge Mr Patterson’s general description of the need to look after the jukurrpa and the need to keep it strong, however, in order to find it is of particular significance I need more and detailed evidence of its relationship and importance to Gingirana people. I suspect this is the sort of evidence provided by Mr Patterson and other wati during the Federal Court hearing. I find the Pikurta jukurrpa story Mr Patterson describes as travelling through the licence area is not a site of particular significance for the purpose of 237(b).
Jiminya Pool
The Jiminya Pool site referred to by Mr Patterson correlates with the location of the Jiminya Pool registered site whose western boundary intersects the licence area’s eastern boundary. I am satisfied this is a restricted mythological site, associated with the jukurrpa. However, little information is provided about this site, and I am unable to conclude it is a site of particular significance.
The hill
From the evidence I know that Pikurta made the hill, it is located in the centre of the licence, and it is connected to other places where the Pikurta jukurrpa travels through, some areas of which are restricted to men. There is little other information provided about the hill area. It may be that such information was provided in the Federal Court proceedings, but I am only able to speculate that this is the case. There is insufficient information for me to conclude the hill is a site of particular significance.
Conclusion
The community or social activities carried on within the licence have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. I am also not satisfied that sites or areas of particular significance exist on the licence area. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E52/3087 to Cosmopolitan Minerals Limited, is an act attracting the expedited procedure.
Helen Shurven
Member
11 October 2017
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