Ngarluma Aboriginal Corporation v Kalamazoo Resources Limited - [2021] NNTTA 2

NATIONAL NATIVE TITLE TRIBUNAL

Ngarluma Aboriginal Corporation v Kalamazoo Resources Limited & Another [2021] NNTTA 2 (22 January 2021)

Application No:

WO2020/0426

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 (WCD2005/001)

(native title party)

- and -

Kalamazoo Resources Limited

(grantee party)

- and -

State of Western Australia

(Government party)

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

Tribunal:	Glen Kelly, Member
Place:	Perth
Date:	22 January 2021

Catchwords:	Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure
Legislation:	Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18 Mining Act 1978 (WA) ss 57, 58, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Rights in Water and Irrigation Act 1914 (WA) ss 5, 6, 17, Schedule 1 Rights in Water and Irrigation Regulations 2000 (WA) regs 5, 7, 23
Cases:	Daniel v State of Western Australia [2003] FCA 666 (Daniel v Western Australia [2003]) Daniel v Western Australia [2005] FCA 536 (Daniel v Western Australia [2005]) Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia [2004] NNTTA 31 (Sharpe v Ashburton Minerals) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG v Yindjibarndi) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (Tullock v Bushwin Pty Ltd) Moses v State of Western Australia [2007] FCAFC 78 (Moses v Western Australia) Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 (Silver v Northern Territory) Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (NAC v FMG) Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd [2002] NNTTA 236 (Boddington v Richmond Resources) Smith on behalf of Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) Wilma Freddie/Western Australia/Stephen Grant Povey [2001] NNTTA 162 (Freddie v Povey) Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) RNTBC v ACN 159 782 537 Pty Ltd and Another [2017] NNTTA 10 (Yarnangu v ACN) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14 (Yindjibarndi v FMG[2])
Representative of the native title party:	Kelsi Forrest, Roe Legal Services

Representative of the grantee party:

Jacob Loveland, All Mining Legal Pty Ltd

Representatives of the Government party:

Reywin Rico, State Solicitor’s Office

Michael McMahon, Department of Mines, Industry Regulation and Safety

(a)

REASONS FOR DETERMINATION

Background

On 9 April 2020 the State of Western Australia (Government party) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licence E47/4342 to Kalamazoo Resources Limited (Kalamazoo). The notification day specified in the notice is 17 April 2020.
The notice for the proposed licence included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA). By including this statement, the Government party asserts the grant of the licence is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The proposed licence covers an area of approximately 121 square kilometres, is located approximately 40 kilometres south of Whim Creek and is on land subject to the Ngarluma/Yindjibarndi native title determination (see Daniel v Western Australia and Moses v Western Australia). The Ngarluma Aboriginal Corporation RNTBC (Ngarluma) holds non-exclusive native title rights and interests over 99.8 per cent of the proposed licence area in trust for the Ngarluma People.
On 28 May 2020, Ngarluma lodged an objection application with the National Native Title Tribunal (Tribunal) in response to the Government party’s assertion that the expedited procedure applies to the grant of the licence. In its objection, Ngarluma argues the expedited procedure should not apply to the licence on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c).
Having been appointed to conduct this inquiry by the President of the Tribunal on 22 October 2020, I must look at what is likely to result from the grant of the proposed licence and decide whether there is a real chance or risk of the interference outlined in s 237 of the Act and subsequently whether it is an act that attracts the expedited procedure.

Determination on the Papers

The Government party provided an initial set of information which includes mapping, a report from the Aboriginal Heritage Inquiry System (AHIS) setting out details and maps of recorded Aboriginal sites, a Tengraph quick appraisal, the licence application along with a redacted version of the accompanying statement required by s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 Statement) and the Draft Tenement Endorsement and Conditions extract outlining conditions to be imposed on the licence. The Government party also provided contentions in reply to those put forward by Ngarluma.
Ngarluma provided contentions which are accompanied by affidavits from Mr Keith Churnside, Mr David Walker (both Ngarluma people) and anthropologist Ms Roina Williams. Both Mr Churnside and Mr Walker state they are Ngarluma men with connection to the tenement area.[1] I accept they have the necessary authority to speak for country on behalf of the Ngarluma People. In regard to the evidence put forward by Ms Williams in her affidavit, I take the approach set out in Tullock v Bushwin Pty Ltd by Deputy President Sumner at [35]-[37]. Consequently, and noting her stated expertise as an anthropologist,[2] I accept the evidence provided by Ms Williams.
[1] Churnside affidavit, [1]-[5]; Walker affidavit, [1]-[3].
[2] Williams affidavit [1]-[3].
In providing evidence in this matter, Ngarluma sought non-disclosure directions in relation to portions of the affidavit of Ms Williams, specifically paragraph [15] and annexure RW2. These relate to evidence for the site Niningungu and the non-disclosure directions were made on 7 September 2020 by President Dowsett who was presiding over the matter at that time.
Further to the above, the Ngarluma affidavits were originally submitted for the purposes of a similar inquiry in relation to exploration licence application E47/3801, which was withdrawn in July of 2019. The area of E47/4342 substantially overlaps the area of the previous E47/3801. As such, and given the affidavits relate to land covered by the proposed licence, Ngarluma submits that these affidavits are relevant to the current matter. I accept this and proceed on that basis.
Aside from the s 58 statement, Kalamazoo has not provided any contentions and instead relies on the Government party’s contentions and evidence.
All parties agreed to the matter being determined on the papers as permitted by s 151(2) of the NTA. Having had regard to the information before me, I am satisfied the inquiry can be determined without a hearing.

The Licence and Kalamazoo’s proposed activities

The licence is an exploration licence proposed to be granted under s 57 of the Mining Act for a period of 5 years. Section 66 of the Mining Act sets out the rights conferred by an exploration licence, in summary, as the rights:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes[3] unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
[3] Prescribed in Regulation 20 of the Mining Regulations 1981 (WA)
As set out by the Government party in the Endorsements for the grant of the licence, the exercise of the rights set out in paragraph [12] above requires the prior grant of a licence, permit or permission from the Department of Water and Environmental Regulation (DWER).
In its s 58 statement, Kalamazoo states it is seeking to explore the area for gold, copper and other base metals. It sets out that during year 1 it intends to gather, collate and review existing data and undertake geological reconnaissance of the area which would include field mapping, rock chipping and soil sampling over a number of field trips with an aim to identifying target areas for further exploration which may include drilling. Kalamazoo estimates its year 1 work to total $39,000.
Kalamazoo further set outs that in year 2, it intends to undertake ground and air geophysical survey and to conduct further work aimed at identifying drilling targets and implementing a drilling, assaying and review program. Beyond this, further programs of work would be contingent upon results. No budget estimates are provided for year 2 or beyond.

Legal Principles

The legal principles outlining the approach I am taking to this assessment are outlined in Yindjibarndi v FMG at [15] – [21]. In general terms, it is the role of the Tribunal to undertake a predictive assessment of whether interference in the matters outlined in s 237 is likely to occur as a result of the grant of the licence. In doing this, it is accepted that the term ‘likely’ ‘requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237’.[4]
[4] Smith v Western Australia, [23].
While the objection application from Ngarluma contained statements relating to ss 237(a), (b) and (c), their contentions contained information only in relation to s 237(b). Given this and as there is no evidence before me to indicate the grant of the licence will cause major disturbance under s 237(a) and (c), this inquiry is focussed on s 237(b).
Expanding on paragraph [16] above, legal principles for this assessment regarding s 237(b) are summarised in Yindjibarndi v FMG at [17]–[18]. This sets out 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 registered on the Aboriginal Heritage Act 1972 (WA) (AHA) Register of Places and Objects (Register of Aboriginal sites);
(c)if an area or site is of particular significance it must be known, able to be located and its significance able to be explained to the Tribunal;
(d)slight interference may be unacceptable in the context of s 237(b) but the nature of interference is generally accepted as involving some type of physical intervention;
(e)the site or area will generally be located within the licence area although impacts to sites or places of special significance that are outside the licence area can be considered if it can be demonstrated that offsite activities such as road construction, truck movement to and from the license area or activities within the licence area may have a downstream impact on sites or places of special significance;
(f)there must be a real chance or risk of interference with the area or site; and
(g)the Tribunal is entitled to give regard and considerable weight to the Government Party’s Aboriginal heritage protection regime (in this case the AHA) however this does not mean that this regime will be considered to make interference unlikely under s 237(b) on all occasions.

The Contentions of the Parties

Ngarluma’s Contentions

Ngarluma contends there are four sites of more than ordinary significance for the Ngarluma people. These are:
(a)Nyinkarranha;
(b)Murrumbri Thalu;
(c)Honey Thalu; and
(d)Niningangu.
Two of these sites are Thalu sites, places of ceremony aimed at increasing or controlling certain things in the natural environment. Ngarluma’s contentions set out that Thalu sites are ‘central to the culture, health and wellbeing of Ngarluma country and people’[5] and quote Daniel v Western Australia [2003] at [1336]:
David Daniel felt thalu were still important to Ngarluma people because `it produces things in our land that's specially for us and so we have to associate with our land... we have to go back to our land and listen to the spirit of our land to indicate what in our land.' They were put there by the Minkala (God) during the Ngurranyujunggamu (Dreamtime).
[5] Ngarluma contentions, [15].
Ngarluma further comments that:
In accordance with the evidence given in the Ngarluma Yindjibarndi case, Thalu’s place a central role in the cultural and ceremonial life of the Ngarluma people and their health and wellbeing is important to the health and wellbeing of Ngarluma country as a whole.[6]
[6] Ibid, [31].
As is indicated from the above passage, Thalu sites are discussed extensively in Daniel v Western Australia [2003].

Nyinkarranha

Nyinkarranha is listed as site number 660 on the Register of Aboriginal sites. While the AHIS report provided by the Government party shows this site as being registered over some 100km², it is described by Ngarluma as being an important mythological site near Moorambine Pool on the Sherlock River to the south of the Croyden Station Homestead.[7]
[7] Ibid, [12].
Ngarluma provides some detail as to the tradition and story that is attached to the site and the waterhole it is adjacent to and Moorambine Pool nearby.[8] In her affidavit, Ms Williams sets out some interpretation in that:
Nyinkarranha is an ancient mythological site on the Sherlock River. Enshrined in song, it relates to the anthropomorphising of landscape features, namely large boulders in the river that describe creations mythology and movements or tracks of ancestors and ancient beings. In my opinion, sites of this nature are important markers of the past and descriptors of moral, ethical and resourceful behaviour for people of today to continue to observe. In the Nyinkarranha mythology, the story describes what the people should do, how they should behave and where they should expect to find water and seeds, the sustenance of life.[9]
[8] Ibid, [12].
[9] Williams affidavit, [10]
Ngarluma contends that ‘[t]he boundary of the site recorded by the Register in relation to Nyinkarranha forms part of a broader mythological narrative and the significance is not limited to a particular location. It is also a Yintha (waterway connected to the flow of water along the Sherlock River’[10] and that Nyinkarranha is a ‘site that relates to the waterways’.[11]

Murrumbri Thalu

[10] Ngarluma contentions, [29].

[11] Ibid, [13].

Murrumbri Thalu, listed as site number 7043 on the Register of Aboriginal sites, is described by Ngarluma as a mythological and ceremonial site for the Ngarluma people[12] and as an ‘important increase site to call the black beetle, a source of food for bids, lizards and Ngarluma people’.[13] In her affidavit, Ms Williams explains a Thalu or increase site as a place in which ceremony occurs to increase the availability of a particular resource, in this case a black beetle, which is of importance not only to the people of the area, but to the broader environment as a food source.[14]
[12] Ibid, [14].
[13] Ibid, [17].
[14] Williams affidavit, [18].
In his affidavit, Mr Keith Churnside states the site ‘is a thalu – an increase site for the black beetle.’[15] He also states that ‘[w]hen we were children we were told not to go to the Murrumbri Thalu – no women, no kids. There’s another one near here too. The old people used to go (visit) on Walkabout at Law Time’.[16] Mr Churnside also states that ‘[i]f someone comes here to drill, they will be punished’[17] of which Ms Williams states her understanding of this as being of a spiritual nature and reflecting strongly held spiritual beliefs.[18] Mr Churnside also states that ‘[t]his Yintha (waterhole) used to have a lot more water. Cattle have destroyed it’.[19]
[15] Churnside Affidavit, [7].
[16] Ibid, [11].
[17] Ibid, [9].
[18] Williams affidavit, [22].
[19] Churnside affidavit, [8].
In his affidavit, Mr David Walker restates the nature of the site as an increase site for the black beetle[20] and adds that ‘[s]ome of those sites were given to a special person. That site was given to the Churnsides. Keith Churnside owns it now’.[21] Mr Walker also adds that ‘I’ve never seen that pool (near Murrumbri on the Sherlock River) so low in my lifetime. The station is overstocked and can’t carry those numbers.’[22]
[20] Walker affidavit, [8].
[21] Ibid, [9].
[22] Ibid, 11].
Ms Williams reiterates the nature of the site and elaborates on its structure, being ‘a large table-like rock that overlooks Murrumbrinha, a permanent freshwater source on the Upper Sherlock River, known for catfish and freshwater perch’[23] as well as the manner in which lawmen are able to activate or operate the site.[24]
[23] Williams affidavit, [18].
[24] Ibid, [18]
Further information for Murrumbri Thalu is attached to the Williams affidavit. This is extracted from the site file contained within the Register of Aboriginal sites and includes descriptive information in addition to an extensive set of photographic material depicting the site and its surrounds. This reporting notes the area contains extensive artefact scatters at the north and north east end of the pool.[25]

Honey Thalu

[25] Williams affidavit, RW3

Honey Thalu, listed as site number 7044, is also described as a mythical and ceremonial site for the Ngarluma people.[26] Reporting in the Williams affidavit at RW3 describes the site as an increase site for honey and details the manner in which it is operated. Ngarluma contends it is of particular significance to the Ngarluma people due to its status as a Thalu site.[27] No further evidence is provided in relation to this particular place.

Niningangu

[26] Ngarluma contentions, [21].

[27] Ibid, [23].

Niningangu is described as ‘an important mythological and ceremonial site for the Ngarluma People. It is a highly restricted site that relates to men’s initiation ceremonies’.[28] In his affidavit, Mr Churnside states that ‘I went to Ninningangu … as a teenager. It is a very sacred place for Men’s business only’ and that it ‘is a very, very strong place’.[29] Mr Churnside also provides information as to its location.
[28] Ibid, [24].
[29] Churnside affidavit, [6]

In his affidavit, Mr Walker says ‘[t]here are some sacred sites, I don’t let women go there out near Ninningangu’[30] and that ‘Ningana (sic) is right near the track. It’s a really old site – before me. I don’t think many people have seen it. It’s an old, old law ground.’[31]
[30] Walker affidavit, [4].
[31] Ibid, [5].
In her affidavit, Ms Williams adds that ‘Niningangu is a highly restricted and very old law ground’[32] and further sets out the use of the site for male initiatory rites.[33] Ms Williams also states her view that the site is ‘particularly vulnerable due to proximity to stations tracks’.[34] Ms Williams’ affidavit is accompanied at RW2 with the site file from the Register of Aboriginal sites which describes the location in some detail in addition to some photographic records of the site. Much of this is of a culturally sensitive nature and subject to non-disclosure directions.
[32] Williams affidavit, [13].
[33] Ibid, [15].
[34] Ibid, [16].

Interference

Ngarluma contends that the act is likely to interfere with the sites due to their sensitive nature[35] and that ‘any public access, including any low impact exploration … will have a detrimental effect on the sites and Ngarluma people’s spiritual wellbeing and this constitutes a likely and real risk of interference with the sites’.[36] It is further contended that even low impact activity ‘will have an effect on the sites’[37] and that, following Yanangu v ACN, ‘[i]nterference that may seem insubstantial to some, may be substantial having regard to the native title party’s traditions’.[38]
[35] Ngarluma contentions, [28].
[36] Ibid, [33].
[37] Ibid, [33].
[38] Ibid, [33] citing Yanrangu v ACN at [50] after FMG v Yindjibarndi at [75].
At [37] Ngarluma contends that:
The Grantee Party’s proposed works on the tenement are of a nature such that there is a real risk of interference with Nyinkarranha, Murrumbri Thalu, Honey Thalu, Ninningangu and other water sources (Yintha) surrounding the Sherlock River by the Grantee Party, even with the protections afforded by the regulatory system.
…
(b) Reliance on historical information and Survey Reports will not be sufficient for the purposes of protections … and there is a real risk of interference where the Grantee Party conducts on-ground reconnaissance without specific knowledge as to where they can and cannot go … [t]his is particularly important in relation to Ninningangu where only men can go.
(c) The AHA and Regional Standard Heritage Agreement (RSHA) are not sufficient to prevent interference … because they don’t not ensure protection of the connected waterways as a whole, do not provide exclusion zones and do not require the Grantee Party to engage with heritage surveys if they are conducting low impact exploration.[39]
[39] Ibid, [37].
Ngarluma further contends that:
Field Reconnaissance will involve the Grantee Party traversing the tenement and this is likely to cause interference with sites.
(a)     Field Reconnaissance is an issue if the Grantee Party is not aware of the sensitivities regarding these sites and does not understand the effect of unauthorised entry and damage to these sites.
(b)    The only way the Grantee Party can be sufficiently made aware of these sensitivities is by arranging surveys with Ngarluma people for all work types and having Ngarluma People monitor works.
(c)     All three sites are potentially larger areas and are not necessarily limited to the area depicted on the Register of Aboriginal Sites.
(d)    In addition, the sites are all part of interconnected system of waterways that if damaged significantly, will cause damage to other parts of the connected systems.[40]
[40] Ibid, [38].
Ngarluma contends similarly in relation to rock chipping in that it would cause damage to the sites due to their significance as ceremonial and mythological sites and points to the frailty of the sites as a source of major concern.[41] Additionally, Ngarluma contends that the potential for a drilling program is of major concern as ‘[d]rilling is likely to cause significant harm to any of the sites and interfere if conducted on or nearby them.’[42]
[41] Ibid, [39].
[42] Ibid, [40].

Government Party’s Contentions

The Government party accepts that the evidence provided by Ngarluma establishes Nyinkarranha, Niningangu and Murrumbri Thalu as sites of particular significance to the Ngarluma people.[43] Conversely, it contends the significance of Honey Thalu ‘has not been adequately explained by reference to the traditions of the Ngarluma people’[44] stating that the evidence provided is too broad and general to be able to be specifically applied in the proposed tenement.[45]
[43] Government party contentions, [24].
[44] Ibid, [25].
[45] Ibid, [26].
While the Government party accepts that three sites are of particular significance, it further contends that the evidence provided by Ngarluma is not sufficient to demonstrate how exploration activities would interfere with these sites[46] and subsequently sets out three areas of focus in its contentions being unauthorised entry, protection provided by the draft tenement endorsements and conditions, and the protection afforded by the AHA.
[46] Ibid, [28].
In relation to unauthorised entry, the central contention of the Government party is that Ngarluma has ‘not provided sufficient evidence to establish that unauthorised entry on the proposed tenement would amount to interference’[47] while noting the Tribunal has recognised this in previous limited circumstances where it can be established by the evidence.[48]
[47] Ibid, [31].
[48] Ibid, [30]
Regarding the protection afforded by the draft tenement endorsements and conditions, it is contended by the Government party that these address the concerns put forward by Ngarluma, particularly in relation to interference with water sources through the ‘endorsements relating to proclaimed surface water and ground water areas, and in particular relevant water management legislations and regulations which, in the Government Party’s view, address concerns related to the interference with water source such as Sherlock River.’[49] The Government party further states that the presumption of regularity assumes that a Grantee party will not breach relevant statute, regulation or conditions.[50]
[49] Ibid, [32].
[50] Ibid, [33].
In relation to the AHA, the Government party contends that due to the protection afforded by the AHA, the grant of proposed tenement is not likely to lead to interference[51] and notes the four sites identified by Ngarluma as being registered under the AHA and therefore subject to its protections.[52]
[51] Ibid, [34].
[52] Ibid, [35].
Part of these protections the Government party contends, are that:
Section 17 of the AHA makes it an offence to excavate, destroy, damage, conceal or in any way alter any "Aboriginal site" (as defined in s 5 of the AHA) within the area of the Proposed Tenement without Ministerial consent under s 18 of the AHA. As such, the Grantee Party is prohibited from interfering with such sites, unless it applies for and is granted consent to do so from the Minister under s 18.[53]
[53] Ibid, [36].
And that:
Even if the Grantee Party applied for consent under s 18 of the AHA, the Aboriginal Cultural Material Committee would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (which likely includes the NTP), prior to making a recommendation to the Minister.[54]
[54] Ibid, [37].

The Grantee Party

As noted above at [10], Kalamazoo did not provide contentions and instead elected to rely upon the contentions and evidence of the Government party.

Predictive Assessment in Relation to s 237(b)

Areas or sites of particular significance to native title holders

The Government party accepts three of the four sites, Nyinkarranha, Niningangu and Murrumbri Thalu, as being of particular significance to native title holders. In my view, these places have also been described in sufficient detail as to their location, features, traditions and values to satisfy this inquiry and I therefore determine they are places of particular significance to the native title holders in accordance with their traditions.
In relation to the remaining site, Honey Thalu, I agree with the contentions of the Government party that the evidence provided by Ngarluma is too broad to enable a finding that it is also a site or area of particular significance. It seems likely, given the contended importance of Thalu sites to the Ngarluma people and their traditions that if further and more specific information was provided in relation to this site, my finding may have been different.
Although I am unable to accept that Honey Thalu is a place or site of particular significance, the remaining sites are acknowledged as such. Because of this, the question turns to whether the proposed exploration activities are likely to interfere with these sites.

Likelihood of Interference with Sites of Particular Significance

In considering the activities Kalamazoo may undertake over the duration of the licence, aside from the extract of the s 58 Statement which focusses on its program for year one and partly for year two, Kalamazoo has provided no information about its proposed activities beyond this. Given this, it is well established that in the absence of evidence from the Grantee Party, the Tribunal is at liberty to assume the grantee will fully exercise their rights[55] and I do so in this instance.
[55] Silver v Northern Territory, [30].
The Government party contends that ‘in the absence of evidence to the contrary, a Grantee Party will not act in breach of relevant statu[t]e law, regulations or conditions imposed upon them.’[56] I agree with the Government party that although Kalamazoo has provided no contentions, it can be assumed it will not act in breach of laws, regulations or conditions and, in the absence of any evidence to the contrary, that the presumption of regularity can be assumed to apply.
[56] State contentions, [33].
The presumption of regularity relates to the statutory and regulatory conditions placed upon the tenement holder as set out in the draft endorsement and conditions. Amongst other things, this includes various sets of legislation and regulation governing surface and ground water. This is of relevance here as the contentions of the Ngarluma tie both Nyinkarranha and Murrumbri Thalu to the pools they are adjacent to and it is further stated that they are ‘part of [an] interconnected system of waterways that if damaged significantly, will cause damage to other parts of the connected systems’.[57]
[57] Ngarluma contentions, [38].
I note the licence area is situated within the Pilbara Surface Water Area as proclaimed under s 6 of the RIWI Act. As the draft endorsements provided by the Government party set out, a licence or permit (depending on the activity) is required prior to the taking of water pursuant to s 5C of the RIWI Act, or obstructing or interfering with the bed or banks of a watercourse pursuant to s 17 of the same Act.
Ngarluma states its concerns relating to the low level of the pools the sites are adjacent to, particularly Murrumbri Thalu which has been attributed to high rates of cattle stocking. In relation to water level, it could be that this also reflects the rainfall variability in the area and these concerns may be remedied in one or few rainfall events.
While I accept there are general concerns relating to the pools and waterways, Ngarluma provides little in its contentions about the nature of the risks, their likelihood and the potential impact interfering with the waterways will have on the sites identified. Presumably this would come in the form of direct water extraction from the pools adjacent to the sites or interference with waterways through the construction of roadways, weirs, diversions or other similar activities, however there is no suggestion or evidence that these activities will or may occur.
In any case, such activities would require either a licence or a permit. As set out by President Dowsett in NAC v FMG at [198], the RIWI Act and Rights in Water and Irrigation Regulations 2000 (WA) (RIWI regulations) contain requirements for the public notification of licence applications (reg 23, RIWI regulations) and permits (reg 5, RIWI regulations) and, amongst other things, matters of public interest the Minister is to take into account in determining an application for a licence (Sch 1, RIWI Act) or permit (reg 7, RIWI regulations).
While these provisions do not specifically identify Aboriginal interests, the interests of Ngarluma would seem to fall within a number of the areas of consideration should a licence or permit be applied for, the likelihood of which appears remote from the evidence before me.
The presumption of regularity is also assumed for the AHA, given reference to it in the draft endorsements and conditions and that it is relevant statute law in this matter. The Government party contends that the protection of the AHA will be sufficient to ensure these sites are not likely to be interfered with through the offence created by s 17 and the protection of s 18, through which a party is required to seek and be granted consent to conduct activities that may otherwise breach s 17. Section 17 of the AHA makes it unlawful to excavate, destroy, damage conceal or in any way alter an Aboriginal site.[58]
[58] Ibid, [36].
Additionally, the Government party notes that should Kalamazoo seek a s 18 consent, the Aboriginal Cultural Material Committee (ACMC) ‘would need to be satisfied of the adequacy of consultation with any relevant Aboriginal persons (which likely includes the NTP) prior to making a recommendation to the Minister’, [59] the NTP or native title party being Ngarluma.
[59] Ibid, [37].
In relation to consultation, the Government party does not provide information on the manner or procedures through which the ACMC arrives at its decisions or the manner or the extent of the consultation with relevant Aboriginal people it may require or what it may need such consultation to result in. Further, the assertion of the Government party that relevant Aboriginal people ‘likely includes the NTP’ creates a level of uncertainty on whether an AHA or ACMC mandated process to consult with the relevant Aboriginal people will actually include Ngarluma. It would seem to be an unusual outcome where Aboriginal parties are consulted other than the holders of native title through their Prescribed Body Corporate (PBC) (as the objector on this occasion). Nonetheless this outcome appears to be open.
It may be that the ACMC has taken a policy position that a demonstration of consultation with Aboriginal people or conduct of heritage survey (where required) forms part of its decision making process however this is uncertain. It must be noted that there is no requirement to consult with Aboriginal parties in the AHA in regard to a s 18 decision and neither does it appear that the Minister, ACMC or Department of Planning, Lands and Heritage have published directions or policy to indicate there is. Certainly the Government party has not provided materials for consideration in this enquiry that would indicate otherwise.
It seems reasonably certain that s 18 consent will be required by Kalamazoo prior to conducting exploration activities due to the extent of the registered area of the sites on the licence. While it is understood the sites themselves cover smaller finite areas, the AHIS enquiry shows Nyinkarranha to be registered over an area of some 100km² which overlaps approximately 60% of the licence area, Niningangu to be registered over an area of 4km² of which approximately 95% is within the licence area and Murrumbri Thalu to be registered over an area of approximately 0.8km², situated entirely within the licence and the area over which Nyinkarranha is also registered.
Given this, it seems likely that in order to ensure protection from s 17 of the AHA, Kalamazoo will be required to seek a s 18 consent to conduct its exploration activities over the larger part of the licence area and in doing so, seems unlikely to be informed of or become aware of the precise locations of the sites without specific liaison with Ngarluma. Further, while Ngarluma has described these sites in sufficient detail for me to be satisfied they are within the licence,[60] the specific location information remains guarded, meaning the evidence provided in this inquiry would not provide sufficient guidance to Kalamazoo in conducting its activities.
[60] Ibid.
Although uncertain due to lack of contentions, it seems reasonable to assume that Kalamazoo has no intention of disturbing any sites or places of special significance. Given it seems unlikely that the exact location of these places will be known through a s 18 process however, unless there is consultation with Ngarluma, it appears there is a possibility that such interference this may occur even if Kalamazoo does not intend it.
In any case, obtaining a s 18 consent to conduct activities likely to breach s 17 of the AHA such as to alter or damage sites, Kalamazoo would be free to do so subject to any conditions. In this situation, the presumption of regularity is preserved, however the effect may still be the inadvertent or even intentional disturbance of a site or place or particular significance, which would be possible as a result of obtaining s 18 consent.
The Tribunal has previously arrived at conclusions that even with the presumption of regularity and the normal operation of the AHA, there is a risk of inadvertent disturbance of sites and places of particular significance. This is well summarised by then Deputy President Sumner in Boddington v Richmond Resources where he said:
[22] I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) are sufficient to ensure that it is unlikely (there is no real risk) of the area or sites being interfered with. The Tribunal has often but not necessarily held this to be the case. Where an area is rich in sites or the whole area is of particular significance, the Tribunal has found that the Aboriginal Heritage Act is inadequate to provide the necessary protection without negotiations with the native title party (see cases cited in Walley (WO01/179 and WO01/180) at [51]). This is not a case where I find that the exploration licence area is necessarily rich in sites or that the whole area is of particular significance. Rather, the area contains some sites of particular significance, the precise location of which is unknown, as well as the rock art site inspected by the claimants. These are likely to be interfered with unless the grantee party seeks the guidance of the native title party.
[23] The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence. A number of options are discussed in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Exploration, which is sent to each licensee but there is no evidence that the grantee party has considered these in the circumstances of the grant of this tenement. Even though I accept that the grantee party will obey the law this is a case where the exact location of all the sites of particular significance is not known and there is a real risk of interference with them unless the normal negotiations under s 31(1)(b) of the Act take place. The evidence suggests that the negotiations will lead to an agreement about some form of site survey or clearance being carried out by members of the claimant group.
Similar conclusions have been drawn in Freddie v Povey at [49], Sharpe v Ashburton Minerals at [44] and YAC v FMG (2014) at [122]. The Yindjibarndi v FMG[2] decision by Member Shurven drew a similar conclusion and was subsequently upheld by the Federal Court with McKerracher J stating:
[39]I am not persuaded that there is either an error of law or jurisdictional error. Although ideally the Tribunal might have indicated precisely what aspect of the proposed exploration was likely to constitute a relevant interference, it is clear that the Tribunal reached the conclusion based on the nature of the particular sites and the nature of the activities constituting exploration.
and
[40]There is no authority to suggest that some form of particular damage to the site must be identified or inevitable before it can be said that interference under s 237 NTA is likely to arise. The task for the Tribunal is to make the predictive analysis as to whether the interference is likely to arise and to make a finding in relation to interference.[61]
[61] FMG v Yindjibarndi, [39], [40].

The Government party contends that Ngarluma have not provided sufficient evidence to establish that unauthorised entry to the sites would amount to interference within the meaning of s 237(b). I disagree with the State on this. The evidence provided by Ngarluma describes prohibitions on access as derived from their traditions meaning that access without knowledge, permission or escort would constitute a disturbance. More seriously however is the prospect of light and heavy vehicular disturbance in addition to the physical disturbance that would be created by exploration activities such as rock chipping, excavation and drilling, as is contemplated by the licence, should they occur in these areas. In the absence of evidence otherwise from Kalamazoo, these activities could be anticipated to occur throughout the licence area and to their fullest extent, creating the risk that site disturbance will eventuate, even if inadvertent.
As such I reach a similar conclusion to those expressed in the decisions outlined in [66] and [67] of these reasons, that while the area is not site rich, those sites identified are acknowledged as being of particular significance in accordance with the traditions of the native title holders, traditions which include prohibitions on site access in the first instance and prohibitions on other types of disturbance such as physical ground disturbance.
Kalamazoo has provided no detailed evidence in relation to its program of work and while I assume positively of its intention to adhere to the provisions of the law, the imprecise nature of the recording of the locations of the sites, the high probability for s 18 consent to be sought to and the absence of an AHA based statutory requirement or a stated policy and procedure set for consultations with the native title holders leads me to conclude there is a real risk of interference unless negotiations with Ngarluma take place.
Consequently I find that the proposed grant of E47/4342 is not an act that attracts the expedited procedure.

Determination

I determine that the act, namely the grant of exploration licence E47/4342 to Kalamazoo Resources Limited, is not an act attracting the expedited procedure.

Glen Kelly
Member
22 January 2021