Ngarluma Aboriginal Corporation RNTBC v Western Exploration Pty Ltd
[2022] NNTTA 6
•25 January 2022
NATIONAL NATIVE TITLE TRIBUNAL
Ngarluma Aboriginal Corporation RNTBC v Western Exploration Pty Ltd and Another [2022] NNTTA 6 (25 January 2022)
Application No: | WO2021/0774 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Ngarluma Aboriginal Corporation RNTBC (WCD2005/001)
(native title party)
- and -
Western Exploration Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Nerida Cooley |
Place: | Brisbane |
Date: | 25 January 2022 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites or areas of particular significance – whether act likely to interfere with the carrying on of community and social activities – act is not an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Mining Act 1978 (WA) ss 58, 61, 66 Native Title Act 1993 (Cth) ss 29, 31, 151, 237 |
Cases: | Bunuba Dawangarri Aboriginal Corporation RNTBC v Oladipo Minerals Pty Ltd and Another [2019] NNTTA 111 (‘Bunuba v Oladipo’) Daniel v State of Western Australia [2003] FCA 666 (‘Daniel v Western Australia’) David Daniel & Ors (Ngaluma) & Bruce Monadee & Ors (Injibandi)/Western Australia/Epithermal Pacific NL; Xplore Pty Ltd; J E Smart & O G Jaffrey [1996] NNTTA 11 (‘Ngaluma/Injibandi/Western Australia/Epithermal; Xplore; J E Smart & Jaffrey’) Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) RNTBC and Others v FMG Pilbara Pty Ltd and Another [2015] NNTTA 4 (‘Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara’) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’) Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416 (‘Ngarluma/Yindjibarndi Determination’) |
| Representative of the native title party: | Kelsi Forrest, Roe Legal Services |
| Representative of the grantee party: | Brett Anderson, Anderson’s Tenement Management |
| Representatives of the Government party: | Anthony Civiello, State Solicitor’s Office; Andrea Wyles, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
Introduction
This is a decision about whether the expedited procedure under the
Native Title Act 1993(Cth) (NTA) applies to the grant of exploration licence E47/4352 (licence) to Western Exploration Pty Ltd (Western Exploration).
Ngarluma Aboriginal Corporation RNTBC (Ngarluma) holds native title in trust in relation to the whole of the licence area in accordance with the Ngarluma/Yindjibarndi Determination.
The State of Western Australia (acting through the Department of Mines, Industry Regulation and Safety) considers the grant of the licence is an act attracting the expedited procedure under the NTA, and included a statement to that effect in a notice given under s 29 of the NTA. If the expedited procedure applies, the licence may be granted without first requiring negotiation in good faith under s 31(1)(b) of the NTA.
Ngarluma objects to the application of the expedited procedure and I have been directed to constitute the Tribunal to determine whether or not the expedited procedure applies.
For the reasons given below, I have concluded that the grant of the licence is not an act attracting the expedited procedure.
My determination is made without the need for a hearing
All parties provided material for the inquiry.
The State provided contentions together with mapping, a Quick Appraisal containing key tenement information for the licence, an Aboriginal Heritage Inquiry System (AHIS) search, a copy of the licence application together with the accompanying statement under s 58 of the Mining Act 1978 (WA) (Mining Act) and the proposed endorsements and conditions to be imposed upon the grant of the licence.
Ngarluma provided contentions together with the following affidavits:
(a)affidavit of Ms Jeannie Churnside, a Ngarluma woman, affirmed 16 August 2021;
(b)affidavit of Mr Michael John Walker, a Ngarluma man, affirmed 16 August 2021;
(c)affidavit of Ms Kerry Josephine Churnside, a Ngarluma woman, affirmed 17 August 2021;
(d)affidavit of Mr David Peter Walker, a Ngarluma man, affirmed 17 August 2021; and
(e)affidavit of Mr Tiwa Olowoyo, a senior anthropologist employed by Terra Rosa Consulting, affirmed 17 August 2021.
Western Exploration provided contentions, but no additional evidence.
Each of the parties is agreeable to the matter being determined without the need for a hearing as is permitted under s 151(2) of the NTA. Having reviewed the material I am satisfied that I can adequately determine this matter without a hearing.
What do I need to consider to determine whether the expedited procedure applies?
Under s 237 of the NTA, a licence will only be an act attracting the expedited procedure if it is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those native title holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
I am required to undertake a predictive assessment by considering what is likely
(in the sense of a real, not remote, chance) to occur as a result of the grant of each licence (see overview of approach in Yindjibarndi v FMG at [15]).
In this case, Ngarluma does not make any assertions in relation to major disturbance under s 237(c) and there is no basis to conclude major disturbance is likely. Accordingly, my consideration of the issues is limited to s 237(a) and (b).
I note that the State’s material includes a list of seven previous Tribunal determinations relating to parts of the licence area. That information indicates that each of those determinations was a consent determination that the expedited procedure did not apply. As each of those determinations was by consent there are no detailed reasons available to aid this inquiry.
Details about the licence, licence area and the activities proposed by Western Exploration
It is useful at the outset to outline key information about the licence which may be relevant to my consideration of both s 237(a) and (b).
Exploration licences under the Mining Act are granted for an initial term of five years, and may be renewed (s 61 Mining Act). Section 66 outlines the rights conferred on the holder of an exploration licence, which include the right to “excavate, extract or remove … earth, soil, rock, stone, fluid or mineral bearing substances” up to the prescribed amount of 1,000 tonnes (or a greater amount if approved in writing by the Minister).
The State’s Quick Appraisal reveals that the licence is 11,829 hectares in size. The area is also subject to a range of land tenure and current or pending tenements as follows:
Description
Percentage overlap
Live tenements
Miscellaneous Licence L47/307 held by Mitsui Iron Ore Development Pty Ltd, North Mining Limited, Robe River Mining Co. Pty. Ltd., Camp Lambert Iron Associates and Pannawonica Iron Associates
3.66%
Mining Lease M47/488 held by Swan Bay Holdings Pty Ltd and Stirling Bay Holdings Pty Ltd
0.42%
Miscellaneous Licence L47/219 held by Mitsui Iron Ore Development Pty Ltd, North Mining Limited, Robe River Mining Co. Pty. Ltd., Camp Lambert Iron Associates, Pannawonica Iron Associates
0.03%
Pending tenements
Exploration Licence E47/4505 applied for by Wyloo Metals Pty Ltd
100%
Prospecting Licences (P47/1933, P47/1934, P47/1935, P47/1936, P47/1937, P47/1938, P47/1939) applied for by John William Scott
Between 0.05%-0.08%
Underlying Land Tenure
Pastoral Lease (C) Mt Welcome – Aboriginal Corporation
52.06%
Pastoral Lease (C) Warambie
32.55%
‘C’ Class Reserve (R 9701) – De Grey Mullewa Stock Route
13.15%
‘C’ Class Reserve (R 1795) – Resting Place for Travellers & Stock
1.11%
Freehold Regional
0.51%
General Lease (P) (GE I123390)
0.24%
General Lease (P) (GE I123393)
0.16%
Unallocated Crown Land
< 0.01%
Road Reserves – North West Coastal Highway & Woodbrook Road
The AHIS searches disclose a number of registered Aboriginal sites and other heritage places in the licence area as follows:
No.
Site ID
Name
Type
Restrictions
Registered Aboriginal Sites
1.
ID 6865
Woodbrook Law Ground
Artefacts/Scatter, Ceremonial, Man-Made Structure, Repository/Cache, Camp, Other: PA 76
Subject to file and boundary restrictions
2.
ID 7869
Woodbrook Pirtarra
Artefacts/Scatter, Ceremonial, Man-Made Structure, Mythological
Subject to file and boundary restrictions
3.
ID 11613
Native Hill Well
Engraving
Nil
4.
ID 32513
ARC1-12-27D
Artefacts/Scatter
Nil
5.
ID 32514
ARC1-12-27E
Artefacts/Scatter, Quarry
Nil
6.
ID 32516
ARC4-12-08
Artefacts/Scatter
Nil
7.
ID 32517
ARC4-12-10
Artefacts/Scatter
Nil
8.
ID 32538
ARC4-12-11
Artefacts/Scatter
Nil
Other Heritage Places (Lodged Status)
1.
ID 6895
Murray Camp Creek 3
Artefacts/Scatter
Nil
2.
ID 21295
MS01 – Granite Formation
Mythological, Natural Feature
Nil
3.
ID 21296
MS02 – Artificial Rock Enclosure
Man-Made Structure, Mythological
Nil
4.
ID 21297
MS03 – Burial Site
Ceremonial, Mythological
Nil
5.
ID 32515
ARC2-12-17
Artefacts/Scatter
Nil
6.
ID 32518
ARC1-12-27A
Artefacts/Scatter
Nil
7.
ID 32519
ARC1-12-27B
Artefacts/Scatter
Nil
8.
ID 32520
ARC1-12-27C
Artefacts/Scatter
Nil
9.
ID 34981
PIL54-11-12
Artefacts/Scatter, Arch Deposit
Nil
10.
ID 35353
PIL54-11-19
Engraving, Painting
Subject to file, boundary and gender restrictions
Western Exploration’s s 58 statement outlines its objectives for the licence as follows:
i)The exploration programme for this tenement has been designed to follow-up the gold potential of the known gold bearing conglomerate beds in the Mt Oscar Wits sedimentary sequences. In addition, the exploration will look at potentially expanding the known 136Mt magnetite iron ore JORC Resource.
The tenement is located approximately 35km south-east of Karratha
ii)The program has been designed with the following goals:
Goal 1.To identify a coherent gold mineralised zone within the Mt Oscar Wits sedimentary sequence that could potentially be exploited.
Goal 2.To re-examine the known magnetite iron ore resource with a view to mining economics and potential to expand the available tonnes.
The expenditure proposed for the first two years’ work is $37,000–$43,500 for year one and $37,000–$44,000 for year two.
Western Exploration’s contentions elaborate on how it will undertake exploration activities as follows:
1.24The Northwest Coastal Highway passes through the northwest corner of the tenement and allows reasonably easy access.
1.25There are numerous tracks throughout the area. It is anticipated that access initially be via the Northwest Coastal Highway then onto the existing tracks within the tenement area. Any other access will be by best practice methods leaving as little impact as possible.
1.26From the grant of the tenement, initial access would be mainly for site visits and non ground disturbing Exploration activities within the first year and dependent on results usually activities would be undertaken once a year for a matter of weeks at a time.
1.27 Personnel involved would most likely be limited to 3 or 4 for these activities.
1.28Equipment used for initial visits would be standard field vehicles and later, if drilling was warranted vehicles associated with that work.
1.29No camping, initially, would be required as the town of Roebourne is located approximately 10km north and would be used for accommodation. Wickham and Karratha are also relatively close by.
1.30Best practice environmental and rehabilitation methods will be used and will all be totally compliant with all relative legislation and prescribed methods, especially DMIRS standards.
In its contentions (at paragraph 1.21), Western Exploration says that it recognises this information about its potential activities is somewhat general in nature but says that,
at this early stage, and prior to the grant of the licence, this information is the best it can offer. Given this refreshingly frank assessment, it is reasonable to proceed on the basis that Western Exploration may avail itself of the full suite of rights available to it under the licence.
Predictive assessment for s 237
In light of the nature of the evidence in this case, I propose to address the risk of interference within the scope of s 237(b), before turning to s 237(a).
Section 237(b) – is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
Section 237(b) is concerned with areas or sites of special, or more than ordinary, significance to the native title holders. Such areas or sites must also be known and be able to be located (see discussion in Yindjibarndi v FMG at [17]).
What sites or areas of particular significance are identified by Ngarluma?
Ngarluma contends there are three sites of more than ordinary significance to Ngarluma People in the licence area, each of which is a registered site near or in Yintha (permanent water sources) on the Harding River. These are Native Hill Well, Woodbrook Law Ground and Woodbrook Pirtarra, which are included in the list above at [18] and discussed in more detail below.
In his affidavit, Mr Olowoyo deposes to visiting the licence area in August 2021 with the senior Ngarluma people who have provided affidavits in this matter (Elders) and to taking notes of those discussions for the purposes of the preparation of those affidavits. As to the significance of the area in which the licence is located,
Mr Olowoyo states (at paragraphs 7–8):
7. The Tenement is located on the floodplains of the Harding and East Harding Rivers, which are of a sensitive nature to the Ngarluma people for reasons of anthropological, historical, social, traditional, spiritual, mythological and environmental importance. Rivers and waterways, including permanent pools (yintha) are now and always have been, fiercely protected and contested, particularly in times of drought.
8. All of the above registered sites are near permanent water sources around the Harding and East Harding Rivers, and associated waterways.
Native Hill Well
Native Hill Well (site ID 11613) is an engraving site in the eastern part of the licence. Ngarluma contends (at paragraph 24) that it is “highly restricted and can only be accessed by initiated Ngarluma people who have gone through the law”.
Mr David Walker’s evidence is that Native Hill Well is a mythological place people should not go to. He says that in the past uninitiated people were punished for attending this place and that they “used to get a hiding or spear punishment”.
Mr Michael Walker also deposes to this site, stating (at paragraph 5):
I know this place, there is a rock there standing up like a man, and he is looking towards Roebourne. Where the Native Well windmill is, behind that is the hill on the other side of the river. That’s a sacred site to us with stories connected to it. I think Keith (Churnside) might know a bit more about that place. I think there is also some engravings on this one.
Mr Olowoyo deposes (at paragraph 16) that the Elders referred to this site as a place of cultural significance and a mythological site. He states that it is said to be
“an ancient mythological site facing towards the Harding River, demarcated by boulders and standing stones” and that the Elders described such sites as
“important landmarks of where to find natural resources as well as the tracks that their old people took to navigate Ngarluma country”.
I note that, despite Mr David Walker’s evidence of the restricted nature of Native Hill Well, the registered site file is not subject to restrictions and Mr Olowoyo was able to inspect the file. Details from the file are contained in Annexure TO1 to Mr Olowoyo’s affidavit.
Woodbrook Law Ground
Woodbrook Law Ground (site ID 6865) covers a large portion of the western end of the licence, including part of the Harding River.
Each of the witnesses deposes that Woodbrook remains in use as a law ground. Mr David Walker says it is “the place they have initiations each year” and that his three sons went through the law there. He describes the importance of the law ground and says “when others are going through the law they learn about the dances and the songlines”. Mr Walker says that the Woodbrook law is a Yindjibarndi law, which I note is consistent with Ms Kerry Churnside’s evidence and the decision in
Daniel v Western Australia, discussed below.
Mr David Walker says further (at paragraph 5):
I don’t want anyone to go into where the law is down in the river (Harding River), where the men go. Everyone else and the women stay up on the camp side during ceremony, and when it comes to the law the men go down to the river and be separated from that. No one is to go into the Lawgrounds without Ngarluma people there, at any time. One time I wanted to fence it off and have it just for the law. Maybe they can still do that.
Mr Michael Walker’s evidence is in similar terms. He says (at paragraph 2) that he has been going to the Law Ground since his teenage years. He refers to the Law Ground as “a very culturally significant place on our Country” and “a sacred and important place”. Mr Michael Walker also refers to other language groups visiting the Law Ground. As to interference he states, “[t]hey (exploration and mining) can’t even spend time in here or even drive through the Woodbrook Lawgrounds”.
Ms Jeannie Churnside similarly deposes to the importance of the Law Ground and to attending the site to support the law business. She says (at paragraph 3) that it is “important because this place is where they hold the cultural ceremonies and the only one on Ngarluma Country. This is the only place, everyone comes here. All the other language groups they come here”. Ms Churnside says further (at paragraph 5) that “Woodbrook Law Grounds is a no-go area, that’s it”.
Ms Kerry Churnside speaks of her connection to the Woodbrook Law Grounds through the galharra (kinship) skin group system and deposes that her
“mother’s mother, Topsy Malcolm, a Yindjibarndi senior law woman, brought the birdarra law to Woodbrook Law Grounds from Millstream”. She identifies the Law Grounds as a place of law and significance where initiation ceremonies occur every year from November and says the whole community joins in.
As to the impact of exploration or mining, Ms Kerry Churnside states (at paragraph 3):
If there is exploration or mining happening here the impact of this would be cultural loss. We lose the cultural practice area (Woodbrook Lawgrounds), then we can’t practice our law and culture. It will be loss of identity, troubled youth, more crimes. They get into more trouble when they are not following the law.
Additionally, Ms Kerry Churnside says she does not want to see anybody going to the Law Ground, even when the law business is finished for the year. She states
(at paragraph 6), “[w]e own that land. We want to put a sign up that says its private property and no access area for any other public to the heritage area. It’s a place of cultural significance”. In that respect, I note that Ms Jeannie Churnside also expresses concern about Woodbrook as part of Mt Welcome pastoral station. There is no specific evidence of the ownership of Mt Welcome Station, although the State’s Quick Appraisal indicates it is held by an Aboriginal Corporation.
Mr Olowoyo deposes that Woodbrook Law Ground is a highly restricted Law Ground with connections to various groups, including Ngarluma People. He states he was prevented from visiting the Law Ground due to concerns around cultural restrictions but notes it is an active law ground. He says he was unable to access the site file for the registered site due to its restricted status.
As to the risk of interference with the Law Ground Mr Olowoyo states
(at paragraphs 13–15):
13. Woodbrook Law Ground is a highly significant ceremonial site that continues to be used for law and culture activities at least on an annual basis. The site is highly significant to the Ngarluma, as well as surrounding language groups including but not limited to Yindjibarndi, Banjima and Njamal people. This law ground is a place of continued Pilbara men’s rites of passage passed down over millennia from generation to generation.
14. There are very grave concerns for the protection of Woodbrook Law Ground given the proposal for exploration and mining at the Tenement in which the law grounds are located. In my opinion and based on my experience with sites of this nature, any further unrestricted incursions of the Woodbrook Law Ground would be seen as highly disrespectful and in breach of Ngarluma law and culture. It would be very difficult to achieve positive agreement outcomes with a Proponent once this type of breach had occurred. An additional consequence of incursions on the site can also be the powers of retribution that still exist in the spirit domain. These powers have the ability to cross over into our world and wreak havoc if not mediated correctly by the Ngarluma lawmen. This could manifest as illness or death on those that trespass.
15. I was informed by Senior Ngarluma Lawman, David Walker that Woodbrook Law Ground should not be accessed by anyone, unless accompanied by a senior Ngarluma person. Further to this there are parts of the Woodbrook Law Ground that should not be accessed by anyone at any time, unless they are an initiated Ngarluma man.
Woodbrook Pirtarra
From the AHIS mapping, Woodbrook Pirtarra (site ID 7869) appears to be situated almost wholly within the Woodbrook Law Ground site.
Mr Olowoyo’s evidence addresses this site but notes it was not discussed in detail by the Elders, “mainly due to the sacred and secret nature of the place as well as its location within the larger boundary of Woodbrook Law Ground”. He says the site was discussed in the same cultural context and significance as the broader Law Ground.
Again, Mr Olowoyo says he was unable to access the relevant site file for this registered site.
Conclusion as to particular significance
The State accepts that each of these sites is an area or site of more than ordinary significance to Ngarluma People. Western Exploration does not make any specific contentions regarding the question of particular significance.
Ngarluma’s evidence is clear as to why each of these sites is of more than ordinary significance in accordance with Ngarluma tradition. I note also that the Tribunal has previously found Woodbrook Law Ground to be a site of particular significance for the purposes of s 237(b) (see Ngaluma/Injibandi/Western Australia/Epithermal; Xplore; J E Smart & Jaffrey at page 9 which concerned tenements south-westerly of the licence).
Having regard to the evidence, I am satisfied that each of Native Hill Well, Woodbrook Law Ground and Woodbrook Pirtarra is an area or site of particular significance to Ngarluma People for the purposes of s 237(b).
Is the grant of the licence likely to interfere with these areas or sites of particular significance?
The question which then arises for s 237(b) is whether the grant of the licence is likely to interfere with any of the areas or sites I have found to be of particular significance.
Ngarluma contends that it is. There is clear evidence regarding the restricted and sensitive nature of these sites and, for Woodbrook Law Ground and Woodbrook Pirtarra, the registered sites are subject to boundary restrictions, which means their exact location is not disclosed. Ngarluma has explained the consequences of unauthorised access, including entry by uninitiated persons to the Law Ground.
In that respect, I note also that Mr Olowoyo was not permitted access to parts of Woodbrook Law Ground.
Western Exploration argues that interference is not likely because it is aware of the sites and is prepared to liaise with “various interested parties to take their concerns into account”. It says it has been negotiating in good faith with Ngarluma for many months but has not quite reached agreement on all matters, although it intends to continue those negotiations. I do not doubt Western Exploration’s intentions and perhaps agreement will be reached. However, the objection remains on foot and, as Western Exploration readily admits, it cannot predict at this stage what activities it may wish to undertake under the licence. Further, as argued by Ngarluma
(Reply at paragraph 5), many of Western Exploration’s statements are qualified, for example stating that it will avoid sites “where possible” (Contentions at paragraph 1.7).
The State argues that there is insufficient evidence of likely interference with any of the sites or areas of particular significance and relies on Western Exploration’s intention to avoid sites of significance and use pre-existing tracks. However, as noted, that intention is qualified and there is also no evidence of the manner in which Western Exploration would seek to avoid sites, particularly in a case such as this where the exact boundaries are not known. The State also relies on the regulatory regime under the Aboriginal Heritage Act 1972 (WA) (AHA), noting that
Western Exploration has said it is aware of its obligations and expressed its willingness to negotiate and enter into a heritage agreement. As I have said, there is no reason to doubt the sincerity of Western Exploration’s intentions but having a willingness to enter an agreement is not the same as having an agreement. I do not accept the arguments put by the State with respect to what it calls the protection afforded by the AHA, which the Tribunal has addressed on a number of occasions (see for example Bunuba v Oladipo at [52]–[53]).
Having regard to all of the evidence and in particular, the highly sensitive nature of the areas or sites of particular significance, especially the evidence regarding restrictions on access to each of the sites, I am satisfied that the interference from the grant of the licence is likely.
Section 237(a) – is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
Section 237(a) is concerned with direct interference with community or social activities. In Smith v Western Australia at [26], the Federal Court explained that this involves “an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference”. The Court also observed that trivial impacts are outside the scope of interference contemplated by the section.
Ngarluma relies on Woodbrook Law Ground being an active ceremonial site, contending “it is of great importance to Ngarluma People as a site where law ceremonies are practised every year in the intergenerational transfer of traditional knowledge by Ngarluma elders to Ngarluma young people”. In addition to the affidavit evidence as outlined above, Ngarluma also relies on evidence considered by the Federal Court in Danielv Western Australia with respect to Ngarluma People practising the Bidara law at Woodbrook Law Ground and the exercise of other native title rights in the area, such as camping, hunting and gathering (see for example
Daniel v Western Australiaat [259], [314], [423], [1307], [1326] and [1608]).
I am satisfied from the evidence that Woodbrook is an active law ground where law ceremonies and intergenerational teaching occur each year. I would expect, as argued by Ngarluma, that associated community and social activities such as camping, hunting and gathering also occur when the law ground is in use, however the evidence is not sufficient to make any specific findings with respect to the extent of those activities.
As to the risk of interference, Ngarluma argues (Contentions at paragraph 15) that any proposed exploration is likely to directly interfere with Ngarluma People’s quiet enjoyment and access to the law ground and its surrounds in exercising their native title rights and interests as well as their use and access to key natural resources. Ngarluma also raises a concern about direct impact on the social, spiritual and emotional wellbeing of Ngarluma People if unauthorised access occurs, although that type of impact does not appear to fall within the scope of s 237(a). I have already addressed the issue of unauthorised entry in my consideration of s 237(b).
Western Exploration contends (at paragraph 1.8) that “it does not generally oppose members of the Native Title Party camping, visiting special places, transmitting cultural knowledge, operating law grounds, hunting, fishing or gathering in the area so long as it is safe to do so and does not impact on any Exploration activities that may be happening at the time”. Again, this is a qualified statement and unsupported by evidence.
The State argues that the evidence of activities undertaken at Woodbrook Law Ground is thin on detail and that Ngarluma has not provided any evidence as to how the grant of the licence is likely to directly interfere with community or social activities, apart from the assertions above.
On one view, the concerns raised by Ngarluma for s 237(a), particularly as regards its quiet enjoyment of the law ground, appear to echo those for s 237(b), i.e. any entry to the area constitutes interference. However, as observed by the Federal Court in
Smith v Western Australia,the analysis of what may comprise direct and non-trivial interference is contextual. In the context of a law ground, what constitutes non-trivial impacts may differ from other circumstances (see for example the discussion in Mungarlu Ngurrarankatja Rirraunkaja v FMG Pilbara at [117]).
The State relies on statements by Western Exploration to the effect that most of its activities will be low impact and non-intrusive. The source of those statements is not apparent. As I have noted, Western Exploration has been very frank about its inability to predict what activities may occur in the future.
The State also contends (Contentions at paragraph 26.6) that because of
Western Exploration’s good intentions, I can infer that so long as Western Exploration is made aware of the location and time of each year’s ceremony, it is not likely to conduct its operations in a way which interferes with the ceremony or the privacy of the participants. In response Ngarluma points out that Western Exploration has not established how it will manage exploration activities and entry to the area where ceremonies are conducted during ceremonial time.
I agree with Ngarluma that there is no evidence on that point, and further,
Western Exploration’s contentions on the question of its allowing continuing community and social activities are both qualified and seek priority for exploration activities (see [57] above). Accordingly, the State’s notion of what is likely to occur is purely speculative and at best, optimistic.
I am satisfied from the evidence, that interference for the purposes of s 237(a) is likely in this case. In my view any activities under the licence, including those which may be viewed as minimal or low impact activities, which intersect with the use of the
Law Ground by Ngarluma People would amount to direct and non-trivial interference.
Determination
I determine that the grant of exploration licence E47/4352 is not an act attracting the expedited procedure.
Nerida Cooley
Member
25 January 2022
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